Case Note & Summary
The case arises from an incident on 27.2.2002, where the victim Kapil Dhage (PW9) was allegedly assaulted by the appellants Pankaj Gaikwad and Vijay Thakur. The prosecution case was that the appellants wrongfully restrained Kapil and assaulted him with a knife and a stick, causing injuries. The trial court convicted the appellants under Sections 307, 341, and 352 IPC, sentencing them to five years rigorous imprisonment for attempt to murder and fines for other offences. The appellants appealed to the Bombay High Court. The High Court examined the evidence, including the testimony of the victim (PW9), his mother Sushila Dhage (PW5), and other witnesses. The medical evidence (PW7 Dr. Pramod Borkar) showed that the victim suffered only simple injuries, including a contusion and abrasion, and there was no injury caused by a knife as alleged. The victim's statement in the FIR (Exh.59) mentioned that the appellants assaulted him with a knife and a stick, but in court, he stated that only one appellant assaulted him with a stick and the other with a knife, and he could not identify which appellant did what. The court found material contradictions between the FIR and the victim's testimony, and the independent witnesses turned hostile. The High Court held that the prosecution failed to prove the essential ingredient of intention to kill under Section 307 IPC, as the injuries were simple and not on a vital part. The court also found that the convictions under Sections 341 and 352 IPC were not supported by consistent evidence. Consequently, the High Court allowed the appeal, set aside the convictions, and acquitted the appellants.
Headnote
A) Criminal Law - Attempt to Murder - Section 307 Indian Penal Code, 1860 - Intent to Kill - The court examined whether the prosecution proved beyond reasonable doubt that the appellants had the intention to cause death of the victim. The medical evidence showed only simple injuries, and the victim's testimony was inconsistent with the FIR and other witnesses. Held that the prosecution failed to establish the essential ingredient of intention to kill, and the conviction under Section 307 IPC was unsustainable (Paras 3-10). B) Criminal Law - Wrongful Restraint - Section 341 Indian Penal Code, 1860 - Conviction - The court found that the evidence regarding wrongful restraint was not consistent, as the victim's own testimony did not clearly establish that he was prevented from proceeding. Held that the conviction under Section 341 IPC was not justified (Paras 3-10). C) Criminal Law - Assault or Criminal Force - Section 352 Indian Penal Code, 1860 - Conviction - The court noted that the alleged assault was not corroborated by independent witnesses and the medical evidence did not support the claim of assault. Held that the conviction under Section 352 IPC was also not sustainable (Paras 3-10).
Issue of Consideration
Whether the appellants are guilty of attempt to murder under Section 307 IPC and other offences under Sections 341 and 352 IPC based on the evidence on record
Final Decision
The appeal is allowed. The judgment and order of conviction passed by the learned 2nd Adhoc Additional Sessions Judge, Nagpur, dated 23.2.2004 in Sessions Trial No. 328/2002 is quashed and set aside. The appellants are acquitted of all charges. Their bail bonds stand cancelled.
Law Points
- Section 307 IPC requires proof of intention to cause death or knowledge that act would cause death
- medical evidence must support intent
- conviction cannot be based on inconsistent witness testimony
