Bappa Alias Bapu Vs. The
State of Maharashtra & Anr  Insc 432 (5 August 2004)
Arijit Pasayat & C.K.
Thakker (Arising out of SLP(CRL) No. 5006/2003) ARIJIT PASAYAT, J Leave granted.
The appellant was convicted for offence punishable under Section 307 of the
Indian Penal Code, 1860 (in short the 'IPC') and sentenced to undergo rigorous
imprisonment for ten years and to pay a fine of Rs.5,000/- with default
stipulation. It was further directed that in case the fine was deposited, an
amount of Rs. 2,000/- was to be paid to the injured person as compensation. One
Rao Saheb Nagorao Khose also faced trial under Section 307 read with Section
109 IPC. He was acquitted by the Trial Court. But appellant's appeal before the
Bombay High Court, Aurangabad Bench did not bring any relief to the appellant.
Prosecution version as unfolded during trial is as follows:
Accused Bappa alias Bapu (A-1) alongwith Bibhishan (PW-10) had gone to
cinema to witness a movie and were coming back by bicycle. Suddenly the
appellant got down from the bicycle and stabbed Bibhishan on his stomach and
back and started to press his neck. Hearing his cries for help some villagers
came running. The accused tried to run away from the spot but was caught by the
villagers and handed over to the police. Victim was taken to the hospital. Two
other persons, one of whom, namely, Rajabhau, as noted above, was charged for
commission of offence punishable under Section 307 read with Section 109 IPC.
On the basis of the first information report lodged, investigation was
undertaken and charge-sheet was placed. On consideration of the evidence on
record, more particularly that of the victim, learned Assistant Sessions Judge
found the appellant guilty of offence punishable under Section 307 IPC, and sentenced
him to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.5,000/-
with default stipulation. The accused preferred an appeal before the Bombay
High Court, Aurangabad Bench. The same was dismissed by the impugned judgment.
According to the learned counsel for the appellant, keeping in view the
nature of the injuries sustained, the offence cannot be said to be one covered
by Section 307 IPC but one relatable to Section 324 or Section 326 IPC.
Alternatively it was submitted that the custodial sentence of 10 years as
has been imposed is harsh.
Learned counsel for the State on the other hand submitted that the trial
Court and the High Court have analysed the factual position in detail, and the
accused has been rightly convicted for offence punishable under Section 307
Keeping in view the nature of the injuries sustained, it cannot be said that
the sentence is excessive.
Section 307 IPC reads:
"Attempt to murder - Whoever does any act with such intention or
knowledge, and under such circumstances that, if he by that act caused death,
he would be guilty of murder, shall be punished with imprisonment of either
description for a term which may extend to ten years, and shall also be liable
to fine; and if hurt is caused to any person by such act, the offender shall be
liable either to imprisonment for life, or to such punishment as is
hereinbefore mentioned." It is sufficient to justify a conviction under
Section 307 if there is present an intent coupled with some overtact in
execution thereof. It is not essential that bodily injury capable of causing
death should have been inflicted. Although the nature of injury actually caused
may often give considerable assistance in coming to a finding as to the
intention of the accused, such intention may also be deduced from other
circumstances, and may even, in some cases, be ascertained without any
reference at all to actual wounds. The Sections makes a distinction between the
act of the accused and its result, if any. The Court has to see whether the
act, irrespective of its result, was done with the intention or knowledge and
under circumstances mentioned in the Section. An attempt in order to be
criminal need not be the penultimate act. It is sufficient in law, if there is
present an intent coupled with some overt act in execution thereof.
In Sarju Prasad v. State of Bihar (AIR 1965 SC 843) it was observed that the
mere fact that the injury actually inflicted by the accused did not cut any
vital organ of the victim, is not itself sufficient to take the act out of the
purview of Section 307 IPC.
The above position was highlighted in State of Maharashtra v. Balram Bama Patil
and Ors. (1983 (2) SCC 28), Girija Shankar v. State of U.P. (JT 2004 (2) SC
140) and Vasant Vithu Jadhav v. State of Maharashtra (2004 AIR SCW 1523).
In view of the aforesaid analysis the accused appellant has been rightly
convicted for offence punishable under Section 307 IPC.
The residual question is whether a sentence of 10 years rigorous
imprisonment is justified. No doubt, as noticed by the trial court and the High
Court, injuries inflicted on the victim were of serious nature. But considering
the background facts and peculiar features of the case, custodial sentence of 5
years rigorous imprisonment would meet the ends of justice.
Appeal is partly allowed to the extent as noted above.