Supreme Court of IndiaBappa Alias Bapu vs The State Of Maharashtra & Anr on 5 August, 2004Equivalent citations: AIR 2004 SUPREME COURT 4119, 2004 (6) SCC 485, 2004 AIR SCW 4546, 2004 CALCRILR 978, (2005) 1 UC 681, 2004 (6) SCALE 475, 2004 ALL MR(CRI) 3124, 2004 (5) SLT 5, 2004 SCC(CRI) 1794, 2004 (2) UJ (SC) 1418, (2004) 6 JT 285 (SC), (2004) 22 ALLINDCAS 547 (SC), 2004 (7) SRJ 316, (2004) 3 EASTCRIC 108, (2004) 4 MAH LJ 500, (2004) 4 MPLJ 262, (2004) 3 RAJ CRI C 782, (2004) 3 CURCRIR 77, (2004) 3 ALLCRIR 2082, (2004) 6 SCALE 475, (2004) 2 UC 1114, (2004) 3 JLJR 288, (2005) 1 GCD 319 (SC), (2004) 5 SUPREME 740, (2004) 21 INDLD 304, (2005) 1 BOMCR(CRI) 267, (2004) 50 ALLCRIC 181, (2004) 3 CRIMES 214, (2004) 29 OCR 79, (2004) 2 CHANDCRIC 276, 2004 (2) ANDHLT(CRI) 366 SC, 2004 (2) ALD(CRL) 478, 2004 (4) BOM LR 708, 2004 BOM LR 4 708Author:Arijit PasayatBench:Arijit Pasayat,C.K. ThakkerCASE NO.:
Appeal (crl.)  798 of 2004

PETITIONER:
Bappa alias Bapu

RESPONDENT:
The State of Maharashtra & Anr.

DATE OF JUDGMENT: 05/08/2004

BENCH:
ARIJIT PASAYAT & C.K. THAKKER

JUDGMENT:J U D G M E N T

(Arising out of SLP(CRL) No. 5006/2003)


ARIJIT PASAYAT, J


	Leave granted.The appellant was convicted for offence punishable underSection 307of 
the Indian Penal Code, 1860 (in short the 'IPC')  and sentenced  to undergo 
rigorous imprisonment for ten years and to pay a fine of Rs.5,000/- with default 
stipulation.  It was further directed that in case the fine was deposited, an amount 
of Rs. 2,000/- was to be paid to the injured person as compensation.  One Rao 
Saheb Nagorao Khose also faced trial underSection 307read withSection 109IPC.  He was acquitted by the Trial Court. But appellant's appeal before the 
Bombay High Court, Aurangabad Bench did not bring any relief to the appellant.Prosecution version as unfolded during trial is as follows:Accused Bappa alias  Bapu (A-1) alongwith  Bibhishan (PW-10) had gone 
to cinema to witness a movie and were coming back by bicycle. Suddenly the 
appellant got down from the bicycle and stabbed Bibhishan on his stomach and 
back and started to press his neck.  Hearing his cries for help some villagers came 
running. The accused tried to run away from the spot but was caught by the 
villagers and handed over to the police.  Victim was taken to the hospital.  Two 
other persons, one of whom, namely, Rajabhau, as noted above, was charged for 
commission of offence punishable underSection 307read withSection 109IPC.  
On the basis of the first information report lodged, investigation was undertaken 
and charge-sheet was placed.  On consideration of the evidence on record, more 
particularly that of the victim, learned Assistant Sessions Judge found the 
appellant guilty of offence punishable underSection 307IPC, and sentenced him 
to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.5,000/- 
with default stipulation.  The accused preferred an appeal before the Bombay 
High Court, Aurangabad Bench. The same was dismissed by the impugned 
judgment.According to the learned counsel for the appellant, keeping in view the 
nature of the injuries sustained, the offence cannot be said to be one covered bySection 307IPC but one relatable toSection 324orSection 326IPC.  
Alternatively it was submitted that the custodial sentence of 10 years as has been 
imposed is harsh.Learned counsel for the State on the other hand submitted that the trial 
Court and the High Court have analysed the factual position in detail, and the 
accused has been rightly convicted for offence punishable underSection 307IPC.  
Keeping in view the nature of the injuries sustained, it cannot be said that the 
sentence is excessive.Section 307IPC reads:"Attempt to murder - Whoever 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."It is sufficient to justify a conviction underSection 307if there is present 
an intent coupled with some overtact in execution thereof.  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 Sections 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.  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.InSarju Prasad v. State of Bihar(AIR 1965 SC 843)  it was observed that 
the mere fact that the injury actually inflicted by the accused did not cut any vital 
organ of the victim, is not itself sufficient to take the act out of the purview ofSection 307IPC.The above position was highlighted inState of Maharashtra v. Balram 
Bama Patil and Ors.(1983 (2) SCC 28), Girija Shankar v. State of U.P. (JT2004 
(2) SC 140) and Vasant Vithu Jadhav  v. State of Maharashtra(2004 AIR SCW 
1523).In view of the aforesaid analysis the accused appellant has been rightly 
convicted for offence punishable underSection 307IPC.The residual question is whether a sentence of 10 years rigorous 
imprisonment is justified.  No doubt, as noticed by the trial court and the High 
Court, injuries inflicted on the victim were of serious nature.  But considering the 
background facts and peculiar features of the case, custodial sentence of 5 years 
rigorous imprisonment would meet the ends of justice.Appeal is partly allowed to the extent as noted above.