State vs T.V.Ravichandran

The Court:

This appeal is filed under section 377 Code of Criminal Procedure against a judgment and order passed Sessions Case No.7(11) of 2012 (Sessions Trial No.29 of 2011) dated 23rd August, 2017 by which the learned Trial Judge converted the case under section 307 to 324 of the Indian Penal Code and released the accused on probation for a period of three years to maintain peace, good behavior on furnishing personal bond of Rs.10,000/- to the satisfaction of the Court failing which the convict shall suffer sentence for one year and six months and the convict was also directed to pay a fine of Rs.20,000/- to the injured/victim within a period of 15 days of passing the judgment and the receipt is to be submitted before the Court within ten days, failing which the convict will suffer simple imprisonment of two months.

Before we advert to the submissions made by the counsel we briefly indicate the facts below.

The case under section 307 of the IPC was initiated against the accused T.V.Ravichandran on the basis of Fard Bayan of Niwas Beck. On 21.10.2010 his co-villager Ashok called him, his brother Anthres Beck, Anup and one Ravichandran for helping him for clearing jungle and thereafter they returned to their homes after taking bath and they all consumed Handia (tribal drink). At about 7.00 PM they all gathered at the house of Ashok and while he was consuming Handia hot altercation cropped up between him and Ravichandran. Ravichandran took out a Dah (weapon) from the chatai and assaulted him for which he sustained injuries on his head and neck. On the basis of complaint a case was registered being PS Kadamtala case crime No.50 of 2010 dated 22.10.2010 under section 307 of IPC against accused T.V. Ravichandran. After completion of investigation chargesheet was filed before the lower Court against the accused under section 307 of the IPC and the case was committed to the Court of Sessions for trial.

Before the Trial court, the defence case was that the accused did not commit any such offence and he was falsely implicated in the case.

In order to prove the charge the prosecution examined 11 witnesses including the Medical Officer who examined the accused, and the Investigating Officer. The prosecution produced and exhibited 11 documents which inter alia, include the injury report of the accused and the victim. Apart from the aforesaid, the prosecution also exhibited eight materials which, inter alia, includes the shirt of the victim and the Dao (weapon). The defence did not adduce any evidence.

The victim and the eye witnesses have deposed that on the day of the occurrence the accused had consumed Handia only with the victim, Anthres Beck and Ashok Gajdat. While consuming Handia a hot altercation took place between the victim and the accused and at that time the accused assaulted the victim with a Dah and he received severe injuries on his head, nose and neck and to save himself he ran to the house of his Daadi Susanna from where he was brought to PHC Kadamtala and thereafter referred to GB Pant Hospital, Port Blair where he was admitted.

The case of the prosecution before the learned Trial Court was that the contents of the FIR is proved by the victim and the eye witnesses. The nature and gravity of the injury is proved by the Medical Officer Dr.H.Charles who examined the injuries on the victim on 22.10.2010. On the basis of the evidence of the eye witnesses read with the other evidence and documents, the prosecution prayed for conviction of the accused under section 307 of the IPC.

In defence, it was urged that from the evidence of the eye witnesses it could not be established that the weapon was found from the house of the accused. The eye witnesses admitted in cross-examination that all of them were consuming Handia and at that time the hot altercation took place between the accused and the victim. Anthres, Anup and Ashok did not intervene in the matter. No statement was taken from the doctor of PHC Kadamatala that the victim was capable of giving his statement nor the alleged offending weapon or the alleged wearing apparel of the victim was seized from the possession of the victim but it was produced by one Stanis Beck (PW.2), the relative of the victim. There was no specific identification of the alleged weapon and PW.3 had admitted in cross-examination that the said weapon is available in the market. It was urged that in the injury report, the doctor did not mention the date of examination of the victim and the injury does not mention that the injury caused upon the victim by the accused was inflicted. On the basis of the said evidence, both oral and documentary the learned Sessions Judge arrived at the finding that it is a fit case for conversion of the case from sections 307 to 325 of the IPC and accordingly, passed the sentence.

Being aggrieved by the said sentence, this appeal has been preferred.

Mr.S.K.Mandal, the learned senior counsel appearing on behalf of the appellant has submitted that the trial Court has completely misdirected in mind in converting the case from section 307 to section 325 of the IPC. It is submitted that there are multiple injuries which are dangerous in nature caused by a sharp weapon. The injuries inflicted were sufficient to cause death if unattended. Mr.Mandal has referred to the injury report and the evidence of the Chief Medical Officer who had examined the victim. It is submitted that the trial Court should have taken into consideration the nature of the weapon used. The place where injuries were inflicted and the nature of the injuries in deciding the matter.

Mr.Mandal in this regard has relied upon the decision in the case of Jage Rame v State of Haryana reported in (2015) 11 SCC 366, and a fairly recent judgment of the Hon'ble Supreme Court in the case of State of Madhya Pradesh Vs. Kanha @ Om Prakash in Criminal Appeal No.1589 of 2018.

Per contra, Mr.D.Ilango, Advocate on behalf of the accused, has submitted that the prosecution has failed to prove that the injury was inflicted with the intention to cause murder. There is no evidence that the injury is such that it is likely to cause death. Mr.Ilango has submitted that the prosecution has failed to establish that there was no imminent danger to life of injured person due to the injuries. The learned trial Court has also found that the act of the accused was not premeditated but as a result of sudden quarrel and it has also opined that there was no freewill or enmity between the parties and the incident arose on being provoked by the victim. In a case reported in 1980 Cri LJ 1226, it was opined by the Hon'ble High Curt that if the injuries are described as dangerous to life then it has to satisfy the requirement of clause 8 of section 320 of IPC. The accused person and the victim belong to the same village and the accused is not a person of a criminal antecedents and this is the only case against him. The wife of the accused is a handicapped lady and he is burden to take care of his young children and the handicapped wife. The fact remains that during the pendency of the instant case both the accused and the victim again came in touch with each other and are not having smooth and healthy relationship with each other. On such consideration, the sentence of the accused may not be altered and he may be allowed to remain on probation for a period of 1½ years. On such consideration the conversion into section 324 was justified. The learned counsel has relied upon a decision reported in 1980 CriLJ 1226, Atma Singh Vs. The State of Punjab in support of his submission.

We have carefully perused the evidence and the judgment of the Session Judge. On a careful scrutiny of the evidence it appears that the victim had provoked, instigated and abused the accused. All the persons present on the date of occurrence had consumed handia (tribal drink). The evidence established that the victim was assaulted by the accused with the Dao and sustained injuries. On the day of incident the victim and accused both were under the influence of the handia. Both the two witness namely PW4 and PW6 become hostile but the factum of assault by the accused on the victim was sufficiently established.

However, the question remains to be answered whether it is a fit case for conviction under section 307 of IPC.

Section 307 reads thus:-

"whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused heath, he would be guilty or 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 is 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 constitute an offence under Section 307 two ingredients of the offence must be present:-

(a) an intention of or knowledge relating to commission of murder; and

(b) the doing of an act towards it.

(c) and extent of damage caused to victim.

For the purpose of Section 307 what is material is the intention or the knowledge and not the consequence of the actual act done for the purpose of carrying out the intention (see AIR 2004 SC 5068, Parsuram Pandey & others Vs. The State of Bihar and AIR 2006 SC 2763, Lachman Singh Vs. State of Haryana).

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, an accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt. To justify a conviction under S. 307, an intention or knowledge to constitute murder must exist. It is a different matter that the act fell short of that offence. Unless it can be said that the intention or knowledge of the accused was to cause such bodily injury as would come within one of the four clauses of S. 300, IPC he cannot be held guilty of an offence u/S. 307, IPC. It is sufficient to justify a conviction under S. 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. An accused cannot be acquitted of the charge under Section 307, IPC merely because the injuries inflicted on the victim were in the nature of a simple hurt. [AIR 2004 SC 1812: AIR 2008 SC 2967: AIR 2009 SC 1642]. However what is important is that the accused has caused injuries with an intention to cause death or had knowledge that injuries would cause death but death actually did not occur. Merely because the doctor has described the injury as dangerous to life it would not ipso facto make out an offence under S.307 IPC. [ See 2003 (4) Rec Cri R 105 : 2003 (4) All Cri LR 444 (P&H)].

Just because the offender used a dangerous weapon, he cannot be deemed to have acted with the intention of causing death. [ 1969 Cri LJ 252 (254) (Delhi)]. The totality of the circumstances must be taken into account.

The evidence on record clearly establishes that the hurt was not made voluntarily. It was not a voluntary act of the accused. Both the accused and the victim were intoxicated and the victim admitted to have abused the accused. The intention to cause death, that is, mens rea is absent which is essential to attract the provision of section 307 of the IPC. Section 320 of the IPC defines grievous hurt. One of the kinds of hurt to be grievous should be any hurt which endangers life or which causes the sufferer to be during the space of 20 days with severe bodily pain or unable to follow his ordinary pursuits. Although it is argued that there is no evidence to show that the hurt caused is likely to endangers life of the victim we are unable to accept the said submission.

In the instant case, the blow was given on the head, the nose and the neck of the victim. According to PW 10 there was (1) Scalp injury which extend from left parietal region to the right parietal region area and cuts the whole thickness of the scalp and cuts the scull at the left parietal end having 3 inches length. The length of wound was 7 inches, (2) The neck wound extends from left side below, the left ear just lateral to the thyroid cartilage and runs upon the nape of the neck cuts through cuts though fascia and muscles of the neck and vessels and (3) The nose injury cuts of the right nostrils. In the factual matrix of the case, it cannot be said that the accused had an intention to cause death of the injured. The accused certainly had intended to cause injury which on the basis of the injury report and evidence of the medical officer can be said to be grievous in nature. The nature of the injury is covered by clause eight of Section 320 of the Indian Penal Code and therefore amounts to grievous hurt punishable u/s 325 IPC.

From the evidence on record in our view the learned Trial Judge was justified in holding that the prosecution was able to establish ingredients of clause 8 of section 320 of the IPC. All necessary elements constituting the offence have been properly proved.

The prosecution must prove that the accused voluntarily cause hurt, and that such hurt was caused by means of an instrument referred to in the section.

Normally, the fact that a dangerous weapon was used is a matter to be taken into consideration in deciding the question of the intention of the accused. But it does, not follow, from the use of a dangerous weapon, that the intention of the accused was to cause death. Circumstances may exist which go to show that the accused intended the cause nothing more than hurt or grievous hurt.

There is no evidence that the injuries were sufficient in the ordinary course of nature to cause death.

Unless the injuries inflicted on the victim irrespective of whether such injuries are simple or grievous is accompanied by mens rea that is to say with the intention to kill the ingredients of 307 IPC is not established.

In a fairly recent judgment in Criminal Appeal No.1589 of 2018, State of Madhya Pradesh Vs. Kanha @ Om Prakash dated 4th February,       2019,   on consideration of several judgments concerning conversion of convictions under section 307 to section 324 of the IPC, it was held that 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 this 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. [see State of Maharashtra Vs. Balram Bama Patil (1983) 2 SCC 28]

In Jage Rame v State of Haryana reported in (2015) 11 SCC 366, the Hon'ble Supreme Court held that to establish the commission of an offence under Section 307, it is not essential that a fatal injury capable of causing death should have been inflicted:

"For the purpose of conviction under Section 307 IPC, the prosecution has to establish (i) the intention to commit murder; and (ii) the act done by the accused. The burden is on the prosecution that the accused had attempted to commit the murder of the prosecution witness. Whether the accused person intended to commit murder of another person would depend upon the facts and circumstances of each case. To justify a conviction under Section 307 IPC, it is not essential that fatal injury capable of causing death should have been caused. Although the nature of injury actually caused may be of assistance in coming to a finding as to the intention of the accused, such intention may also be adduced from other circumstances. The intention of the accused is to be gathered from the circumstances like the nature of the weapon used, words used by the accused at the time of the incident, motive of the accused, parts of the body where the injury was caused and the nature of injury and severity of the blows given, etc."

We have taken into consideration the condition of the accused, his responsibilities, living social and economic conditions. The accused person remained in custody for about 109 days. The accused is a private labour having responsibilities of his handicapped wife, two sons one aged 4 years and another of 4 months at the time of conviction. The accused has no past criminal record. On due weightage of the said factors, we feel that the learned Trial Judge was justified in       releasing the accused on probation which however, is modified to the extent hereinbelow.

Where injury was not caused with intention to kill the accused convicts under Ss. 324/34 were released on probation [2003 AIR Jhar HCR 831].

The Probation of Offenders Act , 1958 has been enacted keeping in mind that the     punishment is not retributive but reformative. The reformation and rehabilitation of the offenders as a useful and self-reliant member of the society without subjecting        him to  the deleterious effects of jail term, in our view, has been correctly applied in the instant case. We are informed by Mr.Ilango that both the victim and accused are maintaining cordial relationship and are in fact living together. Accordingly, in the fitness of the things the convict should be released on probation subject to the conditions contained in this judgment as also of the learned Sessions Judge.

On such considerations, we do not find any infirmity in the judgment and order passed by the learned Sessions Judge save and except that he should be released on probation for a period of three years. All other directions in the judgment and order of the learned Sessions Judge shall remain unaltered and affirmed.

We record our appreciation for Mr. D. Ilango, whom we appointed to assist this court on behalf of the accused.

Let the LCR be sent down to the court below.