Sunday, 6 October 2019

Whether accused can be given benefit of doubt in offence U/S 307 of IPC if there is single blow of blunt part of weapon?

 It is in view of all these circumstances, in my considered view
when only a single blow of blunt part of a weapon has been used in
inflicting injury, there is reasonable doubt as to if really accused
Vikram was intending or had knowledge to kill Kashinath. In exactly
similar fact situation in the case of Hari Singh (supra), the Supreme
Court had upheld acquittal of the accused under Section 307 of the
I.P.C. It is in this fact situation and the evidence, it is quite apparent
that the two Courts below have not appreciated the aforementioned
circumstances in their proper perspective and by overlooking them
have convicted accused Vikram for the offence punishable under
Section 307 of the I.P.C. Had they borne in mind these circumstances
and the decision of the Supreme Court in the case of Hari Singh
(supra), they would not have reached the conclusion which they
have.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL REVISION APPLICATION NO.145 OF 2004

Vikram Waman Bachake  Vs The State of Maharashtra


CORAM
: MANGESH S. PATIL,J.

PRONOUNCED ON : 04/06/2019.



These are Criminal Revisions arising out of the judgment and
order passed by the learned Additional Sessions Judge, Aurangabad
in Criminal Appeal No.90/2002, the first preferred by the accused
no.1 being aggrieved and dissatisfied by the dismissal of part of his
appeal thereby confirming his conviction for the offence punishable
under section 307 of the IPC and the other being preferred by the
original informant complainant aggrieved by the decision in the
appeal to the extent it sets aside acquittal of the rest of the accused,
as also acquittal of the accused no.1 of the rest of the charges.
2] Both these revisions have been heard simultaneously
and are being disposed of by this common judgment and order. For
the sake of convenience the parties are hereinafter referred to by their
status in the trial.
3] Respondent Prafulla lodged a complaint at Chawani Police

Station, Aurangabad on 31.05.1999 alleging that on that day at about
8.00 p.m. a quarrel had ensued between his brother Sachin and one
Nitin Bachke. After hearing commotion he along with his parents
rushed to the spot. The parents of Nitin Bachke and his minor
brother had already gathered there. It was alleged that accused
Vikram was carrying a sword whereas accused Anil was carrying an
iron rod. Vikram gave a blow of sword on the head of his father, as a
result he fell to the ground and sustained a bleeding injury on his
head and became unconscious. Anil also gave a blow of iron rod on
the head of his father. When he tried to intervene accused Vikram
gave another blow of sword on his head and even Anil assaulted his
cousin Anil with iron rod on the head. It was further alleged that
even his mother was given kicks and fist blows. On the basis of such
complaint Crime No. I126
of 1999 was registered. Investigation was
carried out. The chargesheet
was submitted against all the three
accused whereas a separate chargesheet
was sent up to the Juvenile
Court in respect of juvenile in conflict with law i.e. Nitin and Anil.
After conducting the trial the learned Assistant Sessions Judge
convicted all the three accused for the offences punishable under
Sections 143, 147, 148, 307 read with Section 149 of IPC, Section
323 read with Section 149 of IPC and Section 506 read with Section
149 of IPC read with Section 149 and imposed separate sentences.
4] Feeling aggrieved, the accused preferred Criminal Appeal
No.90 of 2002 before the Additional Sessions Court. By the
impugned judgment and order dated 17.03.2004 it was partly
allowed. The conviction and sentence imposed by the Assistant
Sessions Judge against all the accused was quashed and set aside
except that of accused Vikram for offence punishable under Section

307 of I.P.C. which was maintained. Hence these cross revisions.
5] At the out set it is necessary to note that the informant Prafulla
has filed affidavit and based on that his learned advocate submitted
that after passage of time, with the help of imminent persons from the
locality they have sorted out the differences between the two families
and he has no grievance left against the accused and therefore he
does not want to pursue Criminal Revision Application No.349 of
2004.
6] The learned advocate for the accused Vikram also toed the line
of the submissions made by the learned advocate for complainant
Prarulla.
7] However, the learned A.P.P. vehemently submitted that since
accused Vikram has been convicted for a serious offence punishable
under Section 307 of the I.P.C. which is not compoundable under
Section 320 of Cr.P.C., this Court should not take cognizance of any
such out of court settlement which is not permissible in law. In
support of his submission the learned A.P.P. referred to and relied
upon the decision of the Supreme Court in the case of Gulab Das and
Ors V/s State of Madhya Pradesh; (2011) 10 SCC 765.
8] Per contra, the learned advocate for the accused Vikram
submitted that though strictly speaking such compounding of a noncompoundable
offence it de hors the provision of law still the fact can
be taken cognizance of against the accused Vikram as has been done
by the Supreme Court in the case of Gulab Das (supra),as a mitigating
circumstance to refute the punishment.

9] Alternatively, the learned advocate for the accused Vikram
submitted that the incident had taken place without any
premeditation. Though the sword is alleged to have been used by
him, nothing has been recovered and even the injury sustained by the
father of the complainant Prafulla is not an injury attributable to a
weapon like sword. There was no intention or knowledge on his part
to kill Praulla's father. Only one blow on the head is attributable to
him. There is no evidence to show that the blow was sufficient in the
ordinary course to cause death. Merely because the Medical Officer
has testified that it would have turned fatal had he not been treated
promptly, accused Vikram could not have been convicted for the
offence punishable under Section 307 of the I.P.C. Therefore going
by the evidence and all the aforementioned circumstances, at the
most he can be convicted only for a minor offence punishable under
Section 324 of the I.P.C. and he could easily be allowed to let off,
since he has already suffered sentence of about 29 days and has
further been under a hanging sword for last so many years. He
sought to derive benefit from the decision in the cases of Hari Singh
V/s. Sukhbir Singh and Ors.; (1988) 4 SCC 551, Waman S/o
Tulsiram Ghodemare and anr. V/s. State of Maharashtra.; 2018
SCC Online Bom. 807 and Tatigari Durgaiah S/o Lakshmaiah V/s.
State of Andhra Pradesh,; 2007 Cri. L.J. 524.
10] The learned A.P.P. so far as facts are concerned, submitted that
there is a direct evidence about accused Vikram having assaulted
complainant's father on vital part of the body with a weapon like a
sword. This very fact is sufficient to attribute intention and
knowledge on his part to commit murder. Absence of a cut injury,

and non discovery of the weapon is purely insignificant. He has been
rightly convicted by the learned Assistant Sessions Judge and it has
been correctly upheld by the learned Additional Sessions Judge in
appeal. These being concurrent findings of facts and the observations
and the conclusions being clearly borne out from the evidence, this
Court should not interfere under revisional jurisdiction.
11] I have carefully considered the judgments of the two courts
below, the evidence, oral as well as the documentary and the rival
submissions.
12] So far as the supervening circumstance of there being an out of
court settlement entered into between the two sides and filing of the
affidavit by complainant, I shall advert to it a little later. I propose to
deal with the matter independently, on facts, for the present.
13] It is indeed a matter of direct evidence, wherein a quarrel
between the two boys seems to have drawn their family members to
the spot. They seem to have indulged in some fighting which
culminated in both the sides lodging F.I.R. against one another. The
very fact that even in the counter F.I.R. in which complainant Prafulla
and his family members were accused of assaulting the present
accused Vikram and his family members at around the same time and
on the same spot, is sufficient to reach a conclusion that accused
Vikram was indeed present at the scene of the crime.
14] As has been pointed out by the trial Judge and confirmed by
the learned appellate Judge, from the testimonies of the three eye
witnesses i.e. complainant Prafulla, his father Kashinath who had

actually sustained injury on the head, Kashinath and his mother
Kantabai. Barring some insignificant variance they have all stated in
unison about accused Vikram having given a blow of sword on the
head of Kashinath. A careful perusal of their crossexamination
further points out that nothing significant could be drawn so as to
disbelieve their version about such an assault of sword on the head of
Kashinath by accused Vikram.
15] Their such version is further corroborated by Rickshaw driver
Mahindra (PW4)
who was passing by the side and having seen
Kashinath lying in the pool of blood had carried him in his rickshaw
to Ghati Hospital Aurangabad.
16] Again Dr. Pagaria (PW7)
has also testified saying that on that
day he had examined Kashinath (PW2)
and had issued the injury
certificate (Exh.25). He has further deposed that the injury sustained
by Kashinath (PW2)
was likely to cause death. It was a contused
lacerated wound of size 2” X 1cm X ½ cm on the occipital region. He
has further deposed that the age of the injury was within 24 hours
and it was grievous in nature. Thus there is enough evidence on the
record which is certainly reliable and cogent to point out that accused
Vikram had assaulted Kashinath (PW2)
on the head with a weapon
and the latter had sustained head injury as described in the certificate
(Exh.25) issued by Dr. Pagaria (PW7).
17] It is trite that hypothetically, as has been laid down in several
decisions of the Supreme Court, while considering the case under
Section 307 of the I.P.C. consequence is immaterial and it is to be
ascertained from all the attending facts and circumstances as to

whether the accused was holding sufficient intention or knowledge of
committing murder. Certainly the consequence is also important but
such intention and knowledge has to be gathered from all the
attending circumstances. Looked at from this angle, in my considered
view, there are few very important circumstances which appear on
the record, which certainly create a reasonable doubt as to the
intention and knowledge on the part of accused Vikram to kill
Kashinath.
18] It is not the prosecution case that there was any previous
animosity between the two families. The incident had occurred on
the spur of the moment when the two minor boys from both the
families engaged in some quarrel which drew their family members
to the spot. The things seem to have flared up thereafter which must
have resulted in some fighting and in fact both the sides have lodged
counter F.I.Rs. albeit in a counter case complainant Prafulla and his
family members have been acquitted in R.C.C. No.1258 of 1999 by
the learned J.M.F.C. by the judgment and order dated 30.10.2006.
Though recovery of weapon is not always necessary, the nature of the
injury sustained by Kashinath (PW2)
ex facie shows that assuming
that the injury was caused by weapon like a sword, the blade of the
sword was not apparently used, else he would have certainly
sustained some incise wound. Though there was cerebral edema and
though Dr. Pagaria (PW7)
has testified that but for the timely
intervention injury could have caused death, one cannot conclude
that the injury was so severe that in all probabilities it could have
caused death. One cannot conclusively ascertain as to the force used
while giving the blow on the head. If at all the accused Vikram was
intending to kill Kashinath, in all probabilities, he would have

certainly used the sharp edge of the sword instead of a blunt portion.
19] It is in view of all these circumstances, in my considered view
when only a single blow of blunt part of a weapon has been used in
inflicting injury, there is reasonable doubt as to if really accused
Vikram was intending or had knowledge to kill Kashinath. In exactly
similar fact situation in the case of Hari Singh (supra), the Supreme
Court had upheld acquittal of the accused under Section 307 of the
I.P.C. It is in this fact situation and the evidence, it is quite apparent
that the two Courts below have not appreciated the aforementioned
circumstances in their proper perspective and by overlooking them
have convicted accused Vikram for the offence punishable under
Section 307 of the I.P.C. Had they borne in mind these circumstances
and the decision of the Supreme Court in the case of Hari Singh
(supra), they would not have reached the conclusion which they
have.
20] Considering all these aspects accused Vikram could have been
and is liable to be convicted for lesser offence punishable under
Section 324 of the I.P.C. rather than a serious offence of attempt to
murder punishable under Section 307 of the I.P.C. His conviction and
sentence consequently for the latter offence is not sustainable on facts
and evidence albeit he is liable to be convicted and sentenced for the
former offence.
21] Now turning to the question of quantum of sentence,
simultaneously one needs to also take cognizance of the apparent
settlement arrived at between the two families as has been submitted
by the learned advocate for the complainant Prafulla by referring to

his affidavit. Interestingly in exactly similar fact and circumstances,
in the case of Gulab Das (supra), though the offence punishable
under Section 307 of the I.P.C. was not compoundable under Section
320 of the Cr.P.C., in view of such a settlement and compromise
arrived at between the parties, the quantum of sentence was
determined. Following observations in paragraph nos. 10 to 13 are
significant.
“10. Having said that, we are of the view
that the settlement/compromise arrived at between
the parties can be taken into consideration for the
purpose of determining the quantum of sentence to
be awarded to the appellants. That is precisely the
approach which this Court has adopted in the cases
referred to above. Even when the prayer for
composition has been declined this Court has in the
two cases mentioned above taken the fact of
settlement between the parties into consideration
while dealing with the question of sentence. Apart
from the fact that a settlement has taken place
between the parties, there are few other
circumstances that persuade us to interfere on the
question of sentence awarded to the appellants.
11. The incident in question had taken place in
the year 1994. The parties are related to each
other. Both Appellants 2 and 3 were at the time of
the incident in their twenties. It is also noteworthy
that the incident had led to registration of a crosscase
against the complainant party in which the
trial court has already convicted Veeraji and others
for the offences punishable under Sections 325/34
and 323 IPC and sentenced them to undergo
imprisonment for a period of two years and a fine
of Rs.300 and imprisonment of six months under
Section 323 IPC. We are told that the parties
having settled the matter, will approach the High
court for an appropriate order in the appeal
pending before it. More so, the appellants have
already served substantial part of the sentence

awarded to them.
12. In the totality of the circumstances we are of
the view that the settlement arrived at between the
parties is a sensible step that will benefit the
parties, give quietus to the controversy and
rehabilitate and normalise the relationship between
them.
13. In the result, while upholding the order of
conviction recorded by the courts below, we reduce
the sentence awarded to the appellants to the
sentence already undergone by them. The appeal is
to that extent allowed and the impugned orders
modified. The appellants shall be set free forthwith
if not otherwise required in any other case.”
22] With respect, exactly for the same reasons, while setting aside
conviction of accused Vikram for the offence punishable under
Section 307 of the I.P.C. and instead convicting him for the lesser
offence punishable under Section 324 of the I.P.C., the quantum of
sentence can be reduced for the period already undergone by him,
which is about 29 days i.e. from 03.06.1999 to 18.06.1999 during the
course of investigation and from 01.11.2002 to 13.11.2002 before he
was released on bail in the appeal.
23] Accordingly, Criminal Revision Application No.145 of 2004 is
allowed partly.
24] The conviction and sentence of accused Vikram for the offence
punishable under Section 307 of the I.P.C. is quashed and aside and
instead he is convicted for the offence punishable under Section 324
of the I.P.C. and sentenced to suffer imprisonment for the period
already undergone by him, by maintaining the fine imposed for the
offence punishable under Section 307 of the I.P.C.

25] Criminal Revision Application No.349 of 2004 is disposed of as
withdrawn.
The Rule is made absolute in above terms.
(MANGESH S. PATIL,J.)

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