Gundu Naik Vs. State of Maharashtra  INSC 403 (5 October 1993)
K. JAYACHANDRA (J) REDDY, K. JAYACHANDRA (J) RAY, G.N. (J) CITATION: 1994 SCC
(1) 465 JT 1993 Supl. 135 1993 SCALE (4)15
Judgment of the Court was delivered by K.JAYACHANDRA REDDY, J.- The appellant Tukaram
Gundu Naik was tried along with two others for an offence punishable under
Sections 307/34 IPC. The appellant was also charged under Section 307 simpliciter.
The trial court acquitted all of them. The State preferred an appeal and it was
admitted against the appellant and dismissed against the other two by the High
Court. A Division Bench of the High Court after having considered the evidence
of the prosecution witnesses particularly that of the victim, convicted the
appellant under Section 307 IPC and sentenced him to undergo five years' RI.
Hence the present appeal.
prosecution case is as follows: A-1 (the appellant herein) and A-2 are the real
brothers and A-3 is the son of A-1 and they are residents of Pokhale, Taluka Panhala.
The appellant was the Director of the Milk Dairy of Ward Factory and also the
Chairman of the Market Committee at Kolhapur and a political worker. The victim Shivaji Aba, PW 8 is also a resident
of the same village and used to take active part in the village activities. He
was in charge of the library started by him and others in the village. He also
canvassed for some candidates in the elections and in 1967 helped the present
appellant but in 1972 worked against the appellant. As a result of this, the
relations between the appellant and the family of Shivaji Aba were not good. Aba
Dnyanu, PW 9, the father of PW 8, is the police patil of the village.
the Judgment and Order dated January 20, 1981 of the Bombay High Court in
Criminal Appeal No. 775 of 1975 466 3.On April 13, 1973 at about 6 p.m. Ramajan, PW 1 met Shivaji Aba, PW 8 in the village. PW 8
asked PW 1 as to why he was frequently visiting the village and also scolded
him for carrying an axe with him. There was a scuffle between the two and PW 1
received an injury. He went and reported the matter to A-1. The appellant sent
him to the panchayat office and followed him there. Thereafter he sent for the
police patil and the sarpanch. Both of them came there. In their presence the
appellant asked PW 8 why he has assaulted PW 1. So saying he slapped Shivaji Aba,
PW 8 twice. PW 9 also slapped PW 8 when he tried to abuse the appellant.
there was some scuffle between PW 8 and A-1 and both of them came in the
verandah. PW 9 also came to the verandah. There the appellant inflicted
injuries with a knife on PW 8. A-2 and A-3 are alleged to have hurled stones at
PW 8. PW 8 rushed and took shelter in the house of his aunt. PW 9 who was
informed about the condition of PW 8 also came there. He brought a rickshaw and
took Shivaji Aba to the police station, gave a report there and then took him
to the Civil Hospital, Kolhapur. PW 11 also came along with them
from the village. Shivaji Aba, PW 8 was treated in the hospital as an
in-patient till August
18, 1973 and
thereafter he was discharged. Meanwhile an offence was registered under Section
326 IPC and investigation proceeded. The accused were arrested and the
charge-sheet was laid. The accused denied the offence. The appellant in his
statement under Section 313 CrPC stated that he was a political worker and that
PW 8 canvassed against him in the elections. He also stated that he was present
in Chavadi but he denied having slapped PW 8. According to him, he did not step
out of the office of the panchayat and he stated that he has been falsely
PW 16 examined PW 8 and found four incised injuries which were clean cut on the
epigastric region. He admitted the injured into hospital and Dr Wagle, PW 17
attended on the injured PW 8 and treated him. The prosecution mainly relied on
the evidence of PW 8 supported by the medical evidence and corroborated by PW 9
and other witnesses. The trial court disbelieved PW 8 for the simple reason
that he did not state in the FIR about the presence of PW 9. As a matter of
fact, the appellant himself did not dispute his presence in the village panchayat
office at the time of the incident. The High Court has rightly held that the
reasons given by the trial court for rejecting the evidence of PW 8, the
victim, were wholly unsatisfactory and also perverse. PW 8 immediately lodged
the FIR in which all the details were given and it was clearly stated that it
was the appellant who slapped him. We have gone through the evidence of PW 8 as
well as PW 9 whose evidence is also corroborated by the evidence of PWs 10 and
11. The High Court has rightly relied on their evidence and convicted the
Ram Jethmalani, learned counsel appearing for the appellant contended that the
conviction under Section 307 IPC is not warranted. According to him, the
intention to commit murder is not made out and the 467 surrounding
circumstances namely that it was dark and there was a scuffle and prior to that
appellant was also abused by PW 8, the victim and under those circumstances,
even if the appellant is said to have inflicted some blows, the offence
committed by him would be one punishable under Section 324 IPC.
PW 16, who examined the injured, found one clean-cut incised wound over epigastric
region, another clean-cut incised wound on the left elbow joint, the third
clean-cut incised wound on the left side of the side and the fourth clean-cut
incised wound over left side of the back.
opined that these injuries were caused with a sharp-edged weapon like a knife.
Learned counsel for the appellant from the record pointed out that it was only
a folding knife and if these injuries were inflicted during scuffle, it cannot
be said that either clause 1 or clause III is attracted so as to infer that the
intention was to commit murder.
Section 307 IPC is also not attracted.
this context, the evidence of PW 12 also becomes relevant. He deposed that he
was also present in the village panchayat office and that he heard the exchange
of words and he also heard the sound of milk cans in the verandah and it was
dark outside the verandah. No doubt this witness was treated hostile but his
evidence would show that it was dark and there was a scuffle. Further, the doctor's
evidence would show that none of the vital organs was injured. Under these
circumstances, a doubt arises whether the accused intended to commit murder and
thus made an attempt. In our view the accused can be attributed only knowledge
that by inflicting such injuries he was likely to cause death and an attempt to
commit such an offence would be one punishable under Section 308 IPC. Section
308 lays down that such an offence is punishable with imprisonment which may
extend to three years or with fine or with both and if hurt is caused, the
assailant can be punished with imprisonment of either description which may
extend to seven years or with fine or with both.
given our earnest consideration and having regard to the age of the appellant
and the suddenness in which the whole occurrence took place during the scuffle,
we are of the view that the offence is one punishable under Section 308 IPC.
Accordingly, we set aside the conviction of the appellant under Section 307 IPC
and sentence of five years' RI awarded thereunder. Instead we convict him under
Section 308 IPC and sentence him to undergo 1 1/2 years' RI and to pay a fine
of Rs 1000 in default of payment of which to undergo further RI for three
months. Accordingly the appeal is partly allowed. The appellant, who is on
bail, shall surrender and serve out the remaining period of sentence, if any.