Vithu Jadhav Vs. State of Maharashtra
 Insc 145 (9
Sabharwal & Arijit Pasayat Arijit Pasayat, J.
member of a disciplined force like police force is accused of having shot his
colleague with a gun, it naturally raises eyebrows and the case at hand is one
such case. The victim Vilas (PW-2) was a relative of the accused.
to the prosecution, over a petty family matter, accused took exception and on
18.7.1983 fired a gun from a very close range aiming at the victim lying on a
the shot did not hit the victim, it hit springs of the cot, the bullet broke
into pieces and the splinters entered into his leg. Information was lodged with
the police, investigation was undertaken and charge sheet was filed for alleged
commission of offence punishable under Section 307 of the Indian Penal Code,
1860 (for short 'the IPC') and Section 27 of the Arms Act, 1959 (for short 'the
Trial Court placing reliance on the evidence of the witnesses including victim
found the accused guilty of the offence punishable under Section 324 IPC and
sentenced him to undergo RI for one year. Similar sentence was imposed for the
offence under the Arms Act. It was held that the factual background did not
warrant conviction under Section 307 IPC. The State of Maharashtra filed an appeal questioning
acquittal of charge under Section 307 IPC, while the accused questioned the
conviction. Both the appeals were heard together by the Division Bench which by
the impugned judgment held that case under Section 307 was clearly made out,
and the Trial Court was not justified in holding that the accused was guilty of
offence punishable under Section 324 IPC. Taking into account the fact that the
accused was supposed to be a guardian of law on the date of the occurrence and
at a public place i.e. the guard room in the District Head Police headquarters,
he took law in his hands, custodial sentence of 10 years RI was imposed. The
sentence under the Arms Act was maintained. The appeal filed by the accused was
support of the appeal, learned counsel for the accused appellant submitted that
both the Trial Court and the High Court have fallen into grave error by holding
that the prosecution evidence established commission of an offence and
consequently holding accused appellant guilty.
evidence which would have shown that the appellant could not have committed the
crime was suppressed. It was further submitted that even if the prosecution
version is accepted in toto, offence under Section 307 IPC is not made out, as
was rightly held by the Trial Court. Strong Reliance was placed on few
decisions of this Court. Ram Prasad and Anr. v. State of Uttar Pradesh (1982 (2) SCC 149) and Kundan Singh
v. State of Punjab (1982 (3) SCC 213). In any event,
sentence imposed is harsh.
counsel for the respondent-State supported the judgment of the High Court
stating that well reasoned judgment of the High Court needs no interference.
dealing with the rival stands, it would be necessary to take note of the few
factual aspects highlighted.
2.7.1983, victim Vilas's brother Bhagwan was married. In the said marriage,
family members of the accused were not invited. It appears that they took
exception to this. It is said that about 2-1/2 months prior to the incident,
father of the accused had given a feast in the name of a deity, wherein despite
being invited Vilas's family members did not join. This appears to have further
soured the relationship. On 16.7.1983, when Vilas and his relative Shankar Kikade
(PW-9) were returning from roll call to their rooms, the accused came from
behind on a cycle and sought an explanation from Vilas for not calling him to
his brother's marriage and for not attending the feast which, he (accused) had given
in honour of the deity. He threatened to kill Vilas in two days. Thereafter, he
went away on a bicycle.
evidence is that Vilas (PW-2) was residing in room no.19 with his family
members in Sangli Police Headquarters.
same premises, the accused was also residing. In the police Headquarters, there
is a guard room and a magazine Room which are practically adjoining. On the
date of incident, i.e. 18.7.1983, at different times, Vilas and the accused
were on guard room duty and magazine Room duty respectively. The victim Vilas
was on guard Room duty from 12 midnight to 2 a.m. and the accused was on magazine Room duty from 2 a.m. to 4
a.m. It is not in
dispute that the guard room and the magazine room were more or less contiguous.
After 2 a.m. the victim Vilas and Head Constable
Pundalik Jadhav (PW-1) were sleeping on two separate cots in the guard room.
Some tubelights were lighting outside the guard room and the same resulted in
visibility therein. At about 3.30 a.m., the
accused came to the band room where constable Vishnu Bansode was sleeping; woke
him up; and enquired from him where his bullets were.
told him that he had returned them to Pundalik Jadhav (PW-1). The accused went
away. After about 25 minutes i.e. at 3.55 a.m. Vishnu and Pundalik heard sound of firing and when they got up, they
discovered that the accused was standing near Vilas's cot in the guard room
with a 303 rifle. Seeing them, he threw the rifle and ran away. The rifle which
the accused had used was of police constable Bansode (PW-3). Constable Jagannath
Whaval (PW-4) Police Jamadar Madhukar Jadhav (PW-6), Police Naik Rajan Kamble
(PW-7) and Police constable Kisan Mali
(PW-8) who were sleeping in the immediate proximity of the victim Vilas saw the
accused coming out from the guard room and running towards east. The victim
Vilas discovered that he was precariously injured. Pundalik Jadhav who was
sleeping in the same room, Madhukar Jadhav (PW-6) and some others reached the
guard room. PW-6 gave a phone call to Dy. S.P. Malsure. He thereafter, took the
victim to the Civil Hospital, Sangli.
aforesaid factual scenario it has to be seen whether Section 307 has
application. Section 307, IPC reads as follows:
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." To justify a conviction
under this Section, 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 Section makes a distinction between an
act of the accused and its result, if any. Such an act may not be attended by
any result so far as the person assaulted is concerned, but still there may be
cases in which the culprit would be liable under this Section. It is not
necessary that the injury actually caused to the victim of the assault should
be sufficient under ordinary circumstances to cause the death of the person
the Court has to see is 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.
sufficient to justify a conviction under Section 307 if there is present an
intent coupled with some overt act in execution thereof. It is not essential
that bodily injury capable of causing death should have been inflicted.
Section 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. Therefore, it is not correct to acquit an accused of the charge under
Section 307 IPC merely because the injuries inflicted on the victim were in the
nature of a simple hurt.
position was highlighted in State of Maharashtra v. Balram Bama Patil and Ors. (1983 (2) SCC 28) and in
Criminal Appeal No. 1034 of 1997 decided on 4.2.2004, and in Criminal Appeal
No. 1179 of 1997 decided on 11.2.2004.
Prasad v. State of Bihar (AIR 1965 SC 843) it was observed
in para 6 that mere fact that the injury actually inflicted by the accused did
not cut any vital organ of the victim, is not by itself sufficient to take the
act out of the purview of Section 307.
there was intention to kill or knowledge that death will be caused is a
question of fact and would depend on the facts of a given case. The
circumstances that the injury inflicted by the accused was simple or minor will
not by itself rule out application of Section 307 IPC. The determinative
question is intention or knowledge, as the case may be, and not nature of the
case at hand the accused fired gun from a very close range of about 6-8 feet
aiming at the victim when he was sleeping. The bullet broke into pieces and
three such pieces struck the accused. Both intention and knowledge in terms of
Section 307 can be attributed to the accused.
the High Court was justified in recording conviction of the accused-appellant
under Section 307 IPC.
residual question is whether the sentence is harsh.
true as noted by the High Court, a guardian of law took law into his own hands
and in a public place fired a shot. Unless severe punishment is imposed it may
provide impetus to indisciplined persons in disciplined forces.
taking into account the peculiar circumstances of the case and the background
facts highlighted above, we feel custodial sentence of 5 years would have
necessarily chastening and deterrent effect on the accused. We do not find
infirmity in the conviction under Section 27 of the Arms Act.
appeal is allowed only in respect of sentence imposed relating to Section 307 IPC,
and for all other aspects it stands dismissed.