Bhagwan vs State of M.P.

Sunil Kumar Sinha, J.—This appeal is directed against the judgment dated 30th of June, 1994 passed in Sessions Trial No. 14/91 by the Additional Sessions Judge, Manendragarh. By the impugned judgment, the appellant has been convicted u/s 307, IPC and sentence to undergo imprisonment for life. On 26-3-90 at about 2.00 a.m., 4 victims namely- Bannu @ Banwas (P.W. 3), Sudarshan (P.W. 4), Teernath (P.W. 5) and Ganpat (P.W. 9) were sleeping at an open place in a Kirtan-Mandap on two different cots. The allegations are that the appellant came there with a farsa and rod and assaulted the above persons causing multiple serious injuries. Sudarshan (P.W. 4), Teernath (P.W. 5) and Ganpat (P.W. 9) became unconscious while they were sleeping, but Bannu @ Banwas (P.W. 3) got up and witnessed the incident. The matter was reported to the police. The victims were sent for their medical examinations. Following are the injuries sustained by the victims:-

Bannu @ Banwas (P.W. 3):

(i) Swelling over left wrist, reddish in colour;

(ii) Swelling and abrasions of 3 x 1 cm and 3 x 1 cm on 3rd metacarpal and middle finger of left forearm;

(iii) Swelling and redness on right forearm;

(iv) Incised wound 0.7 x 0.2 cm x muscle deep on right forearm;

(v) Incised wound 3 x 0.1 cm x skin deep on the left forearm;

(vi) Incised wound 3 x 0.2 cm x muscle deep on back of the skull;

(vii) Incised wound 10 x 0.5 cm x bone deep on left parietal region;

(viii) Incised wound 8 x 0.5 cm x bone deep on left frontal region;

(ix) Incised wound 4 x 0.5 cm x bone deep on left parietal region;

(x) Incised wound 3 x 0.2 cm x muscle deep on back portion of skull;

(xi) Incised wound 8 x 0.5 cm x bone deep on right parietal region;

(xii) Incised wound 6 x 0.5 cm x bone deep on right parietal region;

(xiii) Incised wound 5 x 0.5 cm x bone deep of left parietal region;

(xiv) Incised wound 10 x 0.5 cm x bone deep on right parietal region;

(xv) Incised wound 8 x 0.5 cm x bone deep on right parietal region; and

(xvi) Incised wound 2 x 0.2 cm x muscle deep on right parietal region.

Injury Nos. (i) to (iii) were caused by hard and rough object and the other injuries were caused by sharp object. Injuries were endangerous to life. X-ray examination was advised for injury Nos. (i) and (ii). The injury report is Exh. P-14-A.

Sudarshan (P.W. 4):

(i) Incised wound 2 x 0.4 x 0.3 cm on left maxillary region;

(ii) Incised wound 1 x 0.3 x 0.4 cm on zygomatic region;

(iii) Incised wound 8 x 0.5 cm x bone deep on left parietal region;

(iv) Lacerated wound 8 x 0.7 cm x bone deep on left parietal region;

(v) Incised wound 4 x 0.5 cm cutting left pinna extending to mastoid region; and

(vi) Incised wound 5 x 0.4 cm x bone deep on the occipital region.

X-ray examination was advised for injury No. (iv). Injury No. (iv) was caused by hard and rough object and the other injuries were caused by sharp object. Injuries were endangerous to life. Injury report is Exh. P-12-A.

Teernath (P.W. 5):

(i) Swelling on the left elbow with possibility of bony injury;

(ii) Swelling on maxillary region;

(iii) Swelling on zygomatic region;

(iv) Incised wound 1.5 x 0.4 cm x bone deep on right supraorbital region;

(v) Incised wound of 3/4 inches on left ear-pinna; and

(vi) Incised wound 4 x 0.4 cm x bone deep on back portion of right ear.

Injury Nos. (i) to (iii) were caused by hard and rough object and injury Nos. (iv) to (vi) were caused by sharp object. All the injuries were endangerous to life. X-ray examination of skull was advised. Injury report is Exh. P-13-A.

Ganpat (P.W.9):

(i) Incised wound 11 x 1 cm x bone deep on the forehead;

(ii) Incised wound 8 x 2 cm x bone deep on the right frontal region; brain membrane was cut and white matter was coming out; and

(iii) Piercing wound 1.2 x 0.4 cm x muscle deep on epigastic region.

All the injuries were caused by sharp object. Injury No. (iii) was caused by some pointed object. He was semi-conscious. X-ray examination was advised for injury No. (ii). The injury was endangerous to life. Injury report is Exh. P-11-A.

The learned Sessions Judge, relying on the testimonies of the victims and considering their injuries proved by Dr. S.N. Suhane (P.W. 7), held that it was proved beyond all reasonable doubts that the appellant attempted lives of the above 4 victims, therefore, he was liable for punishment u/s 307, IPC, the appellant was, thus, convicted u/s 307, IPC and sentenced to undergo imprisonment for life.

Mr. Devesh Chandra Verma, learned Counsel appearing on behalf of the appellant, argued that out of 4 victims, 3 could not identify as to who assault them; the evidence of 4th victim namely- Bannu @ Banwas (P.W. 3) appears to be shaky. Therefore, conviction mainly based on the testimony of Bannu @ Banwas (P.W. 3) cannot be sustained. Alternatively, he argued on sentence and submitted that the appellant was aged about 19 years on the date of the incident; it is not a case of previous enmity; there was no bony injury to any victim; the appellant has suffered agony of trial for a very long period, therefore, he may not be awarded life sentence and the sentence should be suitably reduced.

On the other hand, Mr. Arvind Dubey, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court.

We have heard learned Counsel for the parties at length and have also perused the records of the sessions case.

Out of the 4 injured persons namely- Bannu @ Banwas (P.W. 3), Sudarshan (P.W. 4), Teernath (P.W. 5) and Ganpat (P.W. 9), except Bannu @ Banwas (P.W. 3) none could identify the assailant. According to their evidence, they were assaulted while sleeping on the cots and they became unconscious while sleeping on account injuries sustained by them.

Bannu @ Banwas (P.W. 3) was the person who got up after receiving first assault. Bannu @ Banwas (P.W. 3) deposed that on the fateful night-he was sleeping on a cot along with Teernath (P.W. 5), Ganpat (P.W. 9) and Sudarshan (P.W. 4) were sleeping on an other cot. They were sleeping under a peepal tree at an open place. There were mercury lights on both the sides. The lights were on and there was sufficient light at that place. At about 1-2.00 o''clock, somebody assaulted on his right hand. He fell-down from the cot. He started crying and went to the cot of his brother, Sudarshan (P.W. 4). He saw that Sudarshan (P.W. 4) was unconscious. Sudarshan had received injuries. At that time, he saw that the appellant was present there with rod and farsa. He asked him as to why he is assaulting them ? On this, the appellant assaulted him by farsa on his skull. The appellant gave repeated blows to him by farsa and rod. When he tried to intervene the blows, he received injuries on his hands also. Thereafter he started crying and became semi-conscious. Purno, came there. Bannu @ Banwas (P.W. 3) was put to lengthy cross-examination by the defence, but the defence could not elicit any such circumstance in his cross-examination, on which, either his testimony may be discarded or it may be said that he was falsely implicating the appellant in crime in question. He admitted in cross-examination that Teernath (P.W. 5), Sudarshan (P.W. 4) and Ganpat (P.W. 9) were earlier assaulted and they were unconscious while the appellant was assaulting him. He very clearly deposed that he had seen that it was the appellant who assaulted him in the above manner. He denied suggestion of the defence that he could not identify the person who assaulted them. Para 10 of his evidence reveals that the appellant was well known to the victims. In fact, the appellant was friend of Bannu @ Banwas (P.W. 3). Bannu @ Banwas (P.W. 3) had deposed that he cannot tell the reason as to why the appellant assaulted them. Mr. Verma has argued that the incident took place at about I - 2.00 p.m., therefore, in darkness it was not possible to identify the appellant. We cannot accept the above argument in light of the evidence of Bannu @ Banwas (P.W. 3), who clearly deposed that there were mercury lights and the lights were on and it was not difficult to identify the assailant. The appellant was known to Bannu @ Banwas (P.W. 3) from the age of 12 years and thus he was not a stranger. On appreciation of entire evidence of Bannu @ Banwas (P.W. 3), we do not find any infirmity in his evidence so as to discard his testimony.

Bideshi (P.W. 1) has corroborated the evidence of Bannu @ Banwas (P.W. 3). He deposed that when he heard cries in the night, he went towards the place of occurrence and saw that the appellant was running away from that place. He had seen the 4 victims in injured condition. He has given descriptions of their injuries also. Chetan (P.W. 2) has also supported the case of the prosecution to the extent that the appellant was caught by the persons in the night and he was kept there and was handed over to the police. The above evidence clearly shows the complicity of the appellant in crime in question. We are of the view that the learned Sessions Judge was fully justified in holding that it was proved that the appellant had inflicted the injuries to the victims.

In Hari Kishan Vs. Sukhbir Singh and Others, , the Supreme Court held that "Under. Section 307, IPC what 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 that section. The intention or knowledge of the accused must be such as is necessary to constitute murder. Without this ingredient being established, there can be no offence of "attempt to murder". u/s 307 the intention precedes the act attributed to accused. Therefore, the intention is to be gathered from all circumstances, and not merely from the consequences the ensue. The nature of the weapon used, manner in which it is used, motive for the crime, severity of the blow, the part of the body where the injury is inflicted are some of the factors that may be taken into consideration to determine the intention".

We have tested the case of the prosecution on the principles referred to above and we do not find any infirmity in the judgment and finding recorded by the Sessions Court that the appellant assaulted the victims in the above manner and his act was punishable u/s 307, IPC.

Now we shall consider the argument relating to adequacy of the sentence awarded to the appellant.

So far as question of awarding jail sentence is concerned it is important to keep in mind the "doctrine of just desert" which is foundation of a criminal sentence which is to be awarded for a punishment. -What one really deserves for punishment for having committed a crime is the underlying principle. The punishment must not be disproportionately great is a corollary of "just desert" which is governed by the same principle which says that there cannot be a punishment without guilt and the basic element behind the principle is the proportion between crime and punishment. However, the determination of the quantum of punishment would always depend upon the ancillary factors which further would be subject to the statutory obligations specifically provided by law in force.

The appellant and the victims were well known to each other Bannu @ Banwas (P.W. 3) deposed that the appellant was his friend from the age of 12-13 years. The only aggravating circumstance on which the maximum punishment of life imprisonment has been awarded to the appellant is that he attempted the lives of four victims. The mitigating circumstances are that the appellant was aged about 19 years on the date of the incident. He had no previous criminal record. Though he caused multiple injuries to the victims, but the victims did not suffer any bony injury. The appellant has suffered agony of trial since the year 1990. If we strike a balance considering all above circumstances, we do not find present to be a case in which maximum sentence was required to be awarded. We are of the view that in the above facts and circumstances of the case, RI for 10 years would be sufficient to meet the ends of justice. In the result, the appeal is partly allowed. The appellant is convicted u/s 307, IPC (in four counts) and sentenced to undergo RI for 10 years (in four counts). The sentences shall run concurrently. The appellant shall be entitled to set-off the period already undergone.