Tukaram Gundu Naik Vs. State of Maharashtra - Court Judgment

Excerpt:
criminal - attempt to commit culpable homicide - sections 307 and 308 of indian penal code, 1860 - appeal against conviction for offence under section 307 - appellant on some dispute inflicted knife injuries while two other accused threw stones on x - when the incident occurred it was dark - none of injuries were on vital organs of accused - appellant can be attributed only knowledge that by inflicting such injuries he was likely to cause death and such an offence is punishable under section 308 - held, in view of appellant's age and suddenness in which whole occurrence took place appellant can only be held liable for offence under section 308 - conviction for offence under section 307 set aside. - - as a result of this, the relations between the appellant and the family of shivaji aba were not good. 8 as well as p. he opined that these injuries were caused with a sharp-edged weapon like a knife.k. jayachandra reddy, j.1. the appellant tukaram gundu was tried alongwith two others for an offence punishable under sections 307/34 i.p.c. 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 i.p.c. and sentenced him to undergo five years' r.i. hence the present appeal.2. the 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 political worker. the victim shivaji aba, p.w. 8 is also a resident of the same village and used to take active part in the village activities. he was incharge 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, p.w.9, the father of p.w. 8, is the police patil of the village.3. on 13.4.73 at about 6 p.m. ramajan, p.w. 1 met shivaji aba, p.w. 8 in the village. p.w. 8 asked p.w. 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 p.w. 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 p.w. 8 why he has assaulted p.w. 1. so saying he slapped shivaji aba, p.w. 8 twice. p.w. 9 also slapped p.w. 8 when he tried to abuse the appellant. thereafter there was some scuffle between p.w. 8 and a-1 and both of them came in the verandah. p.w. 9 also came to the verandah. there the appellant inflicted injuries with a knife on p.w. 8. a-2 and a-3 are alleged to have hurled stones at p.w. 8. p.w. 8 rushed and took shelter in the house of his aunt. p.w. 9 who was informed about the condition of p.w. 8 also came there. he brought a rikshaw and took shivaji aba to the police station, gave a report there and then took him to the civil hospital, kolhapur. p.w. 11 also came alongwith them from the village. shivaji aba, p.w. 8 was treated in the hospital as an in-patient till 18.8.73 and thereafter he was discharged. meanwhile an offence was registered under section 326 i.p.c. 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 cr.p.c. stated that he was a political worker and that p.w. 8 canvassed against him in the elections. he also stated that he was present in chavadi but he denied having slapped p.w. 8. according to him, he did not step out of the office of the panchayat and he stated that he has been falsely implicated.4. dr. khare, p.w. 16 examined p.w. 8 and found four incised injuries which were clean cut on the epigastric region. he admitted the injured into hospital and dr. wagle, p.w. 17 attended on the injured p.w. 8 and treated him. the prosecution mainly relied on the evidence of p.w. 8 supported by the medical evidence and corroborated by p.w. 9 and other witnesses. the trial court disbelieved p.w. 8 for the simple reason that he did not state in the f.i.r. about tht presence of p.w. 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 p.w. 8, the victim were wholly unsatisfactory and also perverse. p.w. 8 immediately lodged the f.i.r. in which all the details were given and it was gone through the evidence of p.w. 8 as well as p.w. 9 whose evidence is also corroborated by the evidence of p.ws 10 and 11. the high court has rightly relied on their evidence and convicted the appellant.5. shri ram jethmalani, learned counsel appearing for the appellant contended that the conviction under section 307 i.p.c. is not warranted. according to him, the intention to commit murder is not made out and the surrounding circumstances namely that it was dark and there was a scuffle and prior to that appellant was also abused by p.w. 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 i.p.c.6. dr: khare, p.w. 16, who examined the injured, found one clear 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. he 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 i or clause iii are attracted so as to infer that the intention was to commit murder. consequently section 307 i.p.c. also is not attracted.7. in this context, the evidence of p.w. 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 i.p.c. 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.8. having 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 i.p.c. accordingly, we set aside the conviction of the appellant under section 307 i.p.c. and sentence of five years' r.i. awarded thereunder. instead we convict him under section 308 i.p.c. and sentence him to undergo 1-1/2 years r.i. and to pay a fine of rs. 1,000/- in default of payment of which to undergo further r.i. 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.