High Court
Legal Reasoning
CriAppeal-315-2003+-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 315 OF 2003Mahendra s/o Arvind Ganjewar,Age 21 years, occupation Education,R/o Kaleji Tekdi, Old Mondha, Nanded.… Applicant[Orig. Accused No.1]VersusState of Maharashtra… Respondent…..Mr. A. M. Gaikwad, Advocate for the Appellant.Mr. R. D. Raut, APP for the Respondent-State...…WITHCRIMINAL APPEAL NO. 353 OF 2003State of Maharashtrathrough Police Station,Vazirabad, Tq. Nanded,Dist. Nanded. … AppellantVersusMahendra s/o Arvind Ganjewar,Age 18 years, Occu: Education.R/o Kaleji Tekdi, Old Mondha,District Nanded.… Respondent…..Mr. R. D. Raut, APP for the Appellant-State.Mr. A. M. Gaikwad, Advocate for the Respondent. CORAM :ABHAY S. WAGHWASE, J. Reserved on: 11.06.2024Pronounced on: 18.06.2024 CriAppeal-315-2003+-2- JUDGMENT : 1.Both above appeals are arising out of the judgment dated07.03.2003 passed by learned Joint District Judge and AdditionalSessions Judge, Nanded in Sessions Case No. 74 of 1999. Appellant,who is convict, has taken exception to his conviction on the groundthat case has not been proved beyond reasonable doubt, whereasState is dissatisfied on account of extension of benefit of Section 6 ofthe Probation of Offenders Act, 1958 [for short, “the Act”] on theground that, offence having been proved and it being serious offence,though appellant was 17 years of age, considering the gravity of theoffence committed by him, above benefit ought not to have beengiven by the trial court and on such count, State has also come up inappeal. FACTUAL MATRIX GIVING RISE TO THE TRIAL2.Complainant PW1 and accused no.2 Arvind were atloggerheads, on account of removal of courtyard tiles. Disputetravelled up to civil court and proceedings were pending. In thisbackground, there used to be quarrels amongst them. On 16.03.1999,in above backdrop, initially there was quarrel involving presentappellant (son of accused no.2), accused no.2 himself and his wife CriAppeal-315-2003+-3- accused no.3. Present appellant assaulted wife of informant i.e. PW6with knife causing her bleeding injuries. After shifting her to hospital,PW1 lodged report Exhibit 19 which was entertained by PW8 PSIShelke and he registered crime bearing no. 50 of 1999. PW14 PSIRamtirth, who was entrusted with investigation, after gatheringevidence, chargesheeted all three accused for offence under Sections307, 452, 506 r/w 34 of the Indian Penal Code [IPC] and they weremade to face trial which was conducted by learned Joint DistrictJudge and Additional Sessions Judge, Nanded vide Sessions Case No.74/1999.3.During trial, prosecution examined as many as 15 witnessesand relied on documentary evidence like FIR, panchanama, medicalcertificate, CA report etc. On analyzing oral and documentaryevidence, learned trial Judge reached to a finding that prosecutionfailed to bring home the charge as against accused nos. 2 and 3,however, trial Judge concluded that accused no.1 (present appellant)is guilty of commission of offence under Section 308 of IPC. However, considering the age of appellant and the attendingcircumstances, learned trial Judge invoked Section 6 of the Act andpassed following order: CriAppeal-315-2003+-4- “01.Accused no.1 Mahendra s/o Arvind Ganjewar isconvicted for the offence punishable under section308 of Indian Penal Code and instead of Sentencinghim at once, he be released on his executing a bond ofRs.5000/- for a period of 3 years with one surety, tokeep peace and to be of good behaviour with adirection to appear and receive the sentence whenevercalled and during that period to be of good behaviourand to maintain the peace.02.Accused No.2 Arvind s/o Bhagwanrao Ganjewar andaccused No.3 Sunandabai w/o Arvind Ganjewar areacquitted of the charge levelled against them.03.Accused no.1 Mahendra is acquitted of the offencepunishable under Section 452 and 506 of IPC.04.Seized property be destroyed, being worthless, afterthe appeal period is over.”4.As stated above, appellant has questioned his guilt on theground that prosecution has failed to establish the case beyondreasonable doubt and there is improper appreciation of evidence. CriAppeal-315-2003+-5- 5.On the other hand, State vide its Appeal No. 353 of 2003 isassailing the above judgment on the ground that extension of benefitunder Section 6 of the Act was unwarranted in view of nature ofcharge and guilt proved. SUM AND SUBSTANCE OF THE EVIDENCE ON RECORD6.Prosecution has examined the following 15 witnesses to bringhome the charge :PW1 Prabhakar deposed about his occupation and family. He claimsthat while he was at his shop on 16.03.1999, he received aphone call from his daughter-in-law about assault on his wifeby appellant. He rushed home. He claims to have seenappellant giving knife blows on the person of his wife. Whenhe intervened, blow was also given on his chest by appellant.Accused Arvind and Sunanda also dealt kicks and fist blows. Hedeposed that accused Arvind had removed floor tiles from thecommon courtyard, i.e. the portion over which he had a way.There was dispute in that background and accused werehurling threats for withdrawing the litigation instituted by him.He lodged report of the above occurrence while in hospital i.e.at Exhibit 19.PW2 Balaji, a neighbour deposed that on 16.03.1999 between 1.00p.m. to 2 p.m. hearing shouts he came out of his shop and sawaccused persons as well as complainant and his wife. He saw CriAppeal-315-2003+-6- complainant’s wife had bleeding injury on her abdomen. Heheard exchange of words between accused Arvind andcomplainant Prabhakar. He saw present appellant armed withsmall knife in his hand. PW3 daughter-in-law of complainant deposed that on 16.03.1999 at1.30 p.m. appellant came to the house and assaulted hermother-in-law with knife. She telephoned father-in-law, whoreached there immediately. Appellant dealt blow on him alsoand remaining accused dealt kicks and fist blows. Accused wereinsisting to withdraw the court proceedings. She identifiedaccused as well as knife.PW4 Mahesh is pancha to seizure of clothes of appellant Exhibit 25. PW5 Dr. Ballewar is the Medical Officer who examined and treatedinformant PW1 and his wife PW6 issued certificates Exhibits 29and 30.PW6 Sarojani is the wife of informant. She testified that on16.03.1999 at about 1.30 p.m., she and her daughter-in-lawwere busy doing household work. Appellant came near her,took out a knife and gave blows on her person. Daughter-in-lawtelephoned her husband and when he came, appellant dealtblow on him also, whereas accused nos. 2 and 3 gave kicks andfist blows. She was taken to the hospital and treated. Accordingto her, accused had removed tiles from the floor of thecourtyard regarding which there was dispute and litigation.She testified that she was treated for 15 days. CriAppeal-315-2003+-7- PW7 Pravin, pancha to memorandum of disclosure and recovery ofknife at the instance of appellant vide Exhibits 33 and 34.PW8 PSI Devidas Shelke, who registered crime no. 50/1999.PW9 Ganesh is pancha to spot panchanama Exhibit 45.PW10Radhesham is pancha to seizure of clothes of injured PW6.PW11 Police Constable Chavan and PW12 Police Constable Kokareacted as carriers of muddemal.PW13 Sanjay is second pancha to memorandum of disclosure andseizure of knife. PW14PSI Ramtirth and PW15 PSI Ovhal are the InvestigatingOfficers, who carried out respective investigation andcahrgesheeted accused.ANALYSIS7.Initially, charge was framed for commission of offencepunishable under Sections 307, 452 and 506 r/w 34 of IPC. Trialcourt reached to a conclusion that offence under Section 308 of IPCi.e. attempt to commit culpable homicide not amounting to murder ismade out and not offence under Section 307 of IPC. The appeal byState is precisely taking exception to such finding by the trial court. CriAppeal-315-2003+-8- Therefore, entire evidence is to be first re-appreciated to ascertainwhether prosecution has succeeded in establishing offence underSection 307 IPC or whether trial court was justified in holding guiltfor offence under Section 308 and not 307 of IPC.8.Here, there is no dispute that complainant party and accusedparty are sharing common courtyard. Since 8 to 10 years, there wascivil litigation over the flooring and way, which fact is not disputed.Secondly, while chargesheeting accused no.1-present appellant, whois alone convicted, he is shown to be of 17 years of age andprosecution has not seriously challenged him to be a minor at thetime of incident. With these uncontroverted facts, the evidence is putto scrutiny and re-appreciation. 9.It seems that star witnesses or material witnesses forprosecution are injured PW6-Sarojani, her husband informant PW1Prabhakar, who also is an injured and PW3-Rupali i.e. daughter-in-law of PW1 and PW6. PW2-Balaji is a neighbour. Case of prosecutionis that accused entered the house of PW6 and thereafter he assaultedher. It is obvious that there may not be other independent witnesses,as occurrence has taken place in the very house. CriAppeal-315-2003+-9- 10.Occurrence gets unfolded from the testimony of PW6. What shehas deposed is that while she and her daughter-in-law (PW3) werebusy doing household work, appellant entered their house. Shequestioned him. According to her, he asked her to keep mum i.e. bymaking a gesture i.e. by placing finger across his lips, and then heinflicted blows on her with knife. The sites on which she wasallegedly assaulted are, arms, waist, chest and back. 11.PW3-Rupali, who was also present at the time of incident, hasalso stated that accused came to their house with a knife and hemounted assault on her mother-in-law PW6. She reported theoccurrence to her father-in-law PW1 and he reached there. Accordingto her, he was also assaulted by knife. 12.PW1, who was at his shop conducting business, on receipt ofphone call from PW3, claims to have rushed home and he also claimsto have seen present appellant inflicting blows on his wife and thenhe was also assaulted. 13.Therefore, here, there is not only eye witness account in theform of PW3, but also injured witness account i.e. of PW6 and PW1.Injuries suffered by them are demonstrated and established by CriAppeal-315-2003+-10- examining Medical Officer PW5 Dr. Ballewar at Exhibit 28, who hasstepped into the witness box and has placed on record injurycertificates Exhibits 29 and 30. 14.On carefully going through the cross-examination, moreparticularly para 10 of the cross of PW1 and para 7 and 8 of the crossof PW6, it is clearly emerging that the manner and line of their crosscategorically shows that not only presence of appellant in the houseof complainant is admitted, but even assault is admitted. Therefore,on careful re-appreciation and re-analysis of the testimony of PW1,PW3 and PW6, prosecution has established that accused entered thehouse of complainant and dealt blows with knife. The knife is alsorecovered and the panchas to memorandum and recovery are alsoexamined i.e. in the form of PW7 and PW13. 15.Though neighbour PW2 has been examined, however, from histestimony it is emerging that he was not a eye witness as histestimony suggests that he had reached the spot after the occurrence,as he claims that he had seen PW6 suffering bleeding injury andexchange of words between both the parties. Therefore, testimony ofPW2, an independent witness, is of no avail. However, injured eyewitness account i.e. PW6 and PW1 and the eye witness PW3, whose CriAppeal-315-2003+-11- presence has not been rendered doubtful, can safely be accepted asreliable version as regards to occurrence is concerned. 16.Now, the question which is of prime consideration is whetheroffence under Section 307 of IPC was made out by prosecution. Forattracting Section 307 of IPC, the essential ingredients to be provedby prosecution are as under:(i)that the death of a human being was attempted;(ii) that such death was attempted to be caused by, or inconsequence of the act of the accused; and(iii) that such act was done with the intention of causingdeath; or that it was done with the intention of causingsuch bodily injury as:(a)the accused knew to be likely to cause death; or(b)was sufficient in the ordinary course of nature tocause death, or that the accused attempted to causedeath by doing an act known to him to be soimminently dangerous that it must in all probabilitycause (a) death, or (b) such bodily injury as is likelyto cause death, the accused having no excuse forincurring the risk of causing such death or injury. CriAppeal-315-2003+-12- 17.Law is fairly settled that to justify a conviction under Section307 IPC, it is not at all essential that bodily injury capable of causingdeath should have been inflicted. It is also not necessary that theinjury if caused to the victim of assault should be sufficient underordinary course of nature to cause death of the person assaulted.What the court is expected to see is whether the act irrespective of itsoutcome was done with intention or knowledge or undercircumstances mentioned in the Section. The Hon’ble Apex Court innumerous judgments has clarified that “it is sufficient in the law ifthere is presence of intention coupled with some overt act inexecution thereof”.18.To bring the case within the ambit of Section 307 IPC,prosecution has to make out the facts and circumstances envisagedunder Section 300 IPC. Thus, what is emerging is that the court has tosee whether the act, irrespective of its result, was done with theintention or knowledge or under circumstances mentioned in theSection. Only if there is an intention coupled with some overt act inexecution thereof, offence under Section 307 IPC can be said to besuccessfully brought home. CriAppeal-315-2003+-13- 19.Keeping above legal requirements in mind and analyzing theavailable discussed evidence, here, it is pertinent to note that, whatexactly triggered the assault has not come on record. What precededprior to the said entry of appellant in the house of complainant is alsonot coming on record. PW3 and PW6, who were the incumbents ofthe house, have not elaborated or clarified as to what made appellantenter their house. No doubt, there is material suggestingpending/existing civil dispute, but that is also said to be 8 to 10 yearsold and this has come in the admission of none other than thecomplainant PW1 while facing cross. Complainant claims that accusedpersons wanted him to withdraw the court proceedings. It was a courtdate on 15.03.1999. But since that day or even up to 1.00 p.m.to 2.00p.m. of 16.03.1999, i.e. the day of assault, what happened betweenthe parties is not coming on record. PW1 was shown to be at his shop.Therefore, the moot question arises is, when the ladies i.e. PW3 andPW6 were busy doing their household work and when PW1 was busyconducting his business, what made appellant enter their house witha knife is a mystery. There is nothing from prosecution side toelaborate this aspect. In the considered opinion of this Court, it wasessential for the simple reason that, what Section 307 IPC demands isintention. Here, why appellant developed intention to go armed with CriAppeal-315-2003+-14- a knife is not established. Therefore, when there is nothing to indicatethat appellant entered the house with specific intention to carry outdeadly assault or with intention to commit murder, essentialingredients of intention being patently missing, offence under Section307 IPC cannot be brought home. Even prosecution’s own witnessesspeak about accused to be armed with a small knife. Suchcircumstance also contributes to the aspect of intention to kill.20.Therefore, here, when there is nothing concrete to show thatwith sole intention to commit murder or attempt to commit murderaccused entered the house of complainant and inflicted blows, offenceunder Section 307 IPC cannot be attracted. 21.Appellant has also questioned his conviction for offence underSection 308 IPC on the ground that said charge has not been provedbeyond reasonable doubt and there is improper appreciation. Buteven such submissions have no force. Taking into consideration thenature of injuries and the nature of article put to use, definitelyrequired ingredients for attracting Section 308 of IPC are availableand therefore learned trial court has committed no error in bringinghome the offence from Section 307 to 308 of IPC.
Legal Reasoning
CriAppeal-315-2003+-15- 22.Another ground of challenge by learned APP is that, consideringthe gravity of offence, accused appellant was not entitled for benefitof Section 6 of the Probation of Offenders Act. On the other hand,learned counsel for the appellant seeks reliance and support of rulingof the Hon’ble Apex Court in the case of Masarullah v. State of TamilNadu 1982 (3) SCC 458 and Daulat Ram v. The State of Haryana AIR1972 SC 2434. 23.Section 6 of the Probation of Offenders Act, which is a statutorymandate, reads as under :“6. Restrictions on imprisonment of offenders undertwenty-one years of age:(1) When any person under twenty-one years of age isfound guilty of having committed an offence punishablewith imprisonment (but not with imprisonment for life),the Court by which the person is found guilty shall notsentence him to imprisonment unless it is satisfied that,having regard to the circumstances of the case includingthe nature of the offence and the character of theoffender, it would not be desirable to deal with himunder S. 3 or S. 4, and if the Court passes any sentence ofimprisonment on the offender, it shall record its reasonsfor doing so.(2) For the purpose of satisfying itself whether it would CriAppeal-315-2003+-16- not be desirable to deal under Section 3 or Section 4 withan offender referred to in sub-s. (1) the Court shall callfor a report from the probation officer and consider thereport, if any, and any other information available to itrelating to the character and physical and mentalcondition of the offender.”24.Here, as stated above, in chargesheet as well as before the trialcourt, there is no dispute that at the time of incident, appellant wasstudying in 11th standard and was said to be 17 years of age andhence a minor. He has been given benefit of Section 6 of theProbation of Offenders Act by the trial Judge which is now takenexception to.25.Time and again, the object and reasons of the Probation ofOffenders Act as well as rationale for the enactment and itsamendment has been highlighted as the legislation is madeexclusively for the benefit of releasing offenders on probation of goodconduct instead of directly sending them to imprisonment. Precedentsshow that there has been increasing emphasis on reformation andrehabilitation of those offenders who are of young age, first timeoffenders and do not have criminal antecedents, they can be givenopportunity to become better citizens in stead of making them fall in CriAppeal-315-2003+-17- the company of hardened criminals in jail. Section 6 reproducedabove is a mandatory restriction, more particularly for that class ofoffenders who are below 21 years of age. In the judgment of theHon’ble Apex Court in Masarullah (supra), which is also heavily reliedupon by learned counsel for the appellant herein, the relevantobservations are as under :“ In case of an offender under the age of twenty one yearson the date of commission of the offence, the Court isexpected ordinarily to give benefit of the provisions of theAct and there is an embargo on the power of the Court toaward sentence unless the Court considers otherwise,having regard to the circumstances of the case includingnature of the offence and the character of the offender.” It has been elaborated in the above judgment that theunderlying purpose of the provision being reformative and Section 6being special provision, it was carved out to prevent confinement ofpersons of young age, who are below 21 years of age, in jail, toprotect them from pernicious influence of hardened criminals. Similarviews are echoed in the recent judgment of the Hon’ble Apex Court inthe case of Lakhvir Singh v. State of Punjab (2021) 2 SCC 763 : 2021SCC OnLine SC 25. CriAppeal-315-2003+-18- 26.In the line of above precedent, here, present appellant was alsoshown to be barely 17 years of age at the time of the incident. Thereis no criminal record or bad antecedents. He was moreover said to betaking education and the very line of cross and answers solicited fromprosecution witnesses show that he was at the time of incidentstudying in collage and facing examination. Taking into considerationsuch attending circumstances and the background in which theincident took place, in the considered opinion of this Court, thelearned trial court was justified in extending the statutory andmandatory benefit available to the offender like appellant. Therefore,taking overall view of the circumstances in which the incident tookplace, the quality of evidence and age of the appellant, he is qualifiedfor benefit of Section 6 of the Probation of Offenders Act and learnedtrial court has rightly done so. No case being made out to disturb thefindings and conclusion, and there being no merit in both, the appealby State as well as the appeal by convict, I proceed to pass thefollowing order:ORDERBoth the appeals are hereby dismissed. [ABHAY S. WAGHWASE, J.]vre