Saturday, 22 August 2015

Distinction between offence punishable under S 326 of IPC and S 307 of IPC

Though the person convicted of the offence punishable under
Section 326 of the Indian Penal Code also can be sentenced to suffer life

imprisonment, two offences, one punishable under Section 326 of the Indian
Penal Code and other punishable under Section 307 of the Indian Penal Code
are distinct in nature inasmuch as 'intention' part of the offence is concerned.
The offence punishable under Section 326 of the Indian Penal Code involves
the act of accused which is 'voluntary' in nature whereas in the case for the
offence   punishable   under   Section   307   of   the   Indian   Penal   Code   the
prosecution is always under obligation to establish the requisite intention.
8. Since   in   the   present   case,   this   Court   has   opined   that   the
appellant did not have intention to cause death of P.W. 1 nor had he intention
to cause injury to P.W. 2 of the nature which was sufficient to cause death in
ordinary course of the nature, I am inclined to set aside the order of the trial
Court convicting the appellant for the offence punishable under Section 307
of the Indian Penal Code.   In my opinion, the appellant had committed
offence   punishable   under   Section   326   of   the   Indian   Penal   Code.   
  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 287 OF 2014
Sanjay Shankar Shahu,

 //  VERSUS //
The State of Maharashtra,

                             CORAM : M.L. TAHALIYANI, J.
                              DATED   : NOVEMBER 07, 2014.
Citation; 2015 ALLMR(cri) 2670

1. Heard learned counsel for the appellant and learned Additional
Public Prosecutor for the respondent/ State.  
2. The appellant has been convicted by the learned Additional
Sessions Judge, Nagpur for the offence punishable under Section 307 of the
Indian Penal Code and has been sentenced to suffer rigorous imprisonment
for five years and to pay fine of Rs.Five Hundred in default to suffer simple

imprisonment for one month.   The appellant was tried along with accused
No.2 Deelip @ Vicky Shalikram Shahu.  The accused No.2 has been acquitted
of the charge.  
3. The incident in question had occurred on 26th January, 2012 at
about 9.30 p.m. at MHADA Colony, Nagpur.  It is alleged that complainantP.W.
1 Ashish Karne was sitting near his house and was chitchatting with his
brother viz. Atul Karne.   In the meantime, the appellant came there and
assaulted P.W. 2 by knife and caused injury to his abdominal area.  Injured
P.W.  2 was  taken to hospital  and was  admitted  in the hospital  and was
discharged on 19th March, 2012.  He was examined and treated by medical
officers of Mayo Hospital.
4. First Information Report was lodged on the complaint made by
P.W. 1 against the appellant and one of his friends.   During the course of
investigation it was revealed that accused No.2 Vicky was also involved in the
alleged crime.  Spot Panchnama was drawn, statements of the witnesses were
recorded and after completion of investigation chargesheet was filed in the
Court of Magistrate.   After committal of the case, the learned Additional
Sessions Judge had framed charge under Section 307 read with Section 34 of
the Indian Penal Code against the appellant and accused No.2 Vicky.   As
already stated, accused No.2 has been acquitted.   As far as appellant   is
concerned, the evidence of P.W. Nos. 1 and 2 clearly shows that the appellant

was involved in the offence of assault.  The evidence of P.W. 4 also shows that
P.W. 2 was assaulted by somebody on the night of the incident.  The evidence
of Medical Officer examined by the respondents also establishes that P.W. 2
was indoor patient from 26th January, 2012 to 19th March, 2012.  Though the
medical   officers   who   had   examined   and   treated   P.W.   2   had   not   been
examined, the appellant had not challenged the injuries suffered by P.W. 2.
P.W. 2 had stab injury over left iliac region measuring 3 cm x 2 cm through
and through.  The medical officer had opined that the injury was of serious
nature.
5. It has come on record that P.W. 2 was under the influence of
liquor at the time of incident.  It has also come in the evidence that P.W. 2
had been abusing one Shahu.  At this stage, it is necessary to be stated here
that the surname of the appellant is Shahu.  
6. Before I proceed, I find it necessary to mention here that to
establish charge under Section 307 of the Indian Penal Code, the proof of
nature of injury by itself may not be sufficient.  The respondents were under
obligation to establish by circumstantial evidence that the appellant intended
to cause death of the deceased or intended to cause injuries of the nature
sufficient to cause death in ordinary course of the nature.   In the present
case, the evidence clearly established that the appellant had caused injury to
P.W. 2 by means of a sharp weapon.  P.W. 2 was unable to follow his ordinary

pursuits due to bodily pain caused by the injury for a period of more than 21
days.    Therefore, the injury caused to P.W. 2 was grievous hurt within the
meaning of Section 320 of the Indian Penal Code.   The weapon used was
sharp   weapon.     The   question   which   needs   determination   in   the   present
appeal is, whether the appellant had requisite intention.  I have taken note of
the fact that P.W. 2 was under the influence of liquor and he was abusing
Shahu.   It clearly appears that the appellant was offended because of the
filthy abuses hurled by P.W. 2 and therefore, had assaulted P.W. 2.   In the
circumstances, it is not possible to say that the appellant wanted to cause
death of the deceased or that he intended to cause bodily injury sufficient to
cause death in ordinary course of the nature.  Therefore, in my opinion, there
are no circumstances to indicate that had P.W. 2 died the appellant would
have been guilty of the offence of murder.  In the present circumstances, even
death of P.W. 2 could not have been established charge under Section 302 of
the Indian Penal Code against the appellant.  It, therefore, follows that the
charge under Section 307 of the Indian Penal Code could not be established
by the respondents.  However, since the weapon used by the appellant was a
sharp weapon and since P.W. 2 was admitted as indoor patient for more than
21 days, the offence committed by the appellant falls under Section 326 of
the Indian Penal Code.  
7. Though the person convicted of the offence punishable under
Section 326 of the Indian Penal Code also can be sentenced to suffer life

imprisonment, two offences, one punishable under Section 326 of the Indian
Penal Code and other punishable under Section 307 of the Indian Penal Code
are distinct in nature inasmuch as 'intention' part of the offence is concerned.
The offence punishable under Section 326 of the Indian Penal Code involves
the act of accused which is 'voluntary' in nature whereas in the case for the
offence   punishable   under   Section   307   of   the   Indian   Penal   Code   the
prosecution is always under obligation to establish the requisite intention.
8. Since   in   the   present   case,   this   Court   has   opined   that   the
appellant did not have intention to cause death of P.W. 1 nor had he intention
to cause injury to P.W. 2 of the nature which was sufficient to cause death in
ordinary course of the nature, I am inclined to set aside the order of the trial
Court convicting the appellant for the offence punishable under Section 307
of the Indian Penal Code.   In my opinion, the appellant had committed
offence   punishable   under   Section   326   of   the   Indian   Penal   Code.     The
appellant has remained in custody from 26th January, 2012 till today.  In my
opinion, the imprisonment already undergone by the appellant will meet the
ends of justice in the facts and circumstances of this case.  I, therefore, pass
the following order.    
i. The appeal is partly allowed.
ii. The judgment and order passed by the learned trial Court, convicting
the appellant for the offence punishable under Section 307 of the
Indian Penal Code and sentence imposed by the trial Court, is set
aside.

iii. The appellant is convicted for the offence punishable under Section
326 of the Indian Penal Code and is sentenced to suffer imprisonment
for the period already undergone by him and to pay a fine of Rupees
Five Hundred in default to suffer simple imprisonment for one week.
The appeal accordingly stands disposed of. 

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