2014 Supreme(Bom) 1675

In the High Court of Bombay at Aurangabad
A.I.S. CHEEMA, J.
Suryakant & Another
Versus
State of Maharashtra & Another
Criminal Appeal No. 86 of 2000
Decided On : 28-08-2014

Headnote:Criminal Manual - Chapter VI, Para 23 Reference to accused persons. - Reference to accused persons, required to be made by name as well as serial number awarding to charge-sheet in proceedings. The victim PW 1 recorded his examination-in-chief suo motu. In para 2 of his evidence when the incident was being referred, reference to accused persons was recorded by the trial Court only by Numbers without, at-least at first place clarifying name of the accused who was being referred. Because of this error in procedure, at subsequent stage, the trial Court itself put questions to the victim for the purpose of clarification. It was clarified that accused had beaten victim by stick and accused Suryakant had beaten him by spade. The witness was referred to earlier part of his evidence and he deposed that in place of accused No. 1 shown as holding stick and accused No. 2 shown as holding spade, it must be read that accused No. 2 was holding stick and accused No. 1 holding spade.

       It is desirable in judicial proceedings to prevent, as much as possible, doubt as to the identity of the person referred to therein. It frequently happens that the same individual is known by more names than one. Thus, sometimes only the surname, sometimes only the name of the caste, or occupation or the village of the individual is mentioned or he is spoken of by a nickname, such as ’B’, ’N or Bahau Saheb. Such variations in description require explanation to render them intelligible to an appellate Court. A Court of first instance should, therefore, take care not only to ascertain, but to make clear by evidence duly recorded, the identity of any individual who is so referred to under varying appellants and if such an individual is an accused person, his name and serial number according to the charge-sheet should be cited in any passage in which he is otherwise designated. It is clear that High Court has laid down guidelines requiring reference to be made to accused person by name as well as serial number according to the charge-sheet, in the proceedings. Had the above guidelines been strictly followed, the obvious discomfort to the Court ould have been avoided. In the Marathi version of the evidence, it is clearly recorded that the error was on the part of the Court. No specific guidelines are required for trial Courts to understand that judicial records need to be clear and specific. Still, the High Court has in clear terms prescribed guidance in this regard, as mentioned above. It is expected that the trial Courts should strictly follow the Manual.

       [INDIAN] PENAL CODE, 1860 - Sections 307, 325 and 34 Conviction for attempt to murder & grievous hurt. Where assault on victim by accused persons with spade and stick in furtherance of their common intention to kill him was proved by evidence on record therefore conviction of accused persons justified. The argument of the accused persons acting in self defence has no substance. The argument that PW 1 and 2 committed criminal trespass has no force. The incident occurred at the place of common water channel. Even if the complainant and victim went ahead to divert the water, it would be no reason for the accused persons to go to the extent of causing such grievous injuries to the complainant and victim, as can be seen in the present matter.

       It is clear that accused No. 2 ’S’ first gave stick blow to the complainant when he entered the water channel so as to divert the water and caused grievous injury to the complainant. Motive for incident is revealed in course of incident and evidence shows that accused acted in furtherance of common intention. When the victim tried to intervene, severe blow was given on the head of the victim by accused No. 2. When complainant tried to snatch the stick from accused No. 2 ’S’, accused No. 1 ’S’ gave severe blow on head of the victim using the spade. Both the injuries were inflicted on the head of the victim with force, as is apparent from the medical evidence available. Water is a sensitive issue for the farmers and there is evidence of PW 1 victim ’R’ that the accused persons were envious of their family. His evidence is that as regards financial condition, the family of victim has flourished and so accused were envious of them. He claimed that he was Graduate in Science (Botany). The argument that each of the accused gave only single blow on the head and so it should be held that there was no intention to commit murder, is fallacious. The record shows that the blows given were severe and on sensitive part of the body.

       The medical evidence is that injury was sufficient, in ordinary course of nature, to caused death. When an accused gives severe blow with dangerous weapon to sensitive part of the body, even if the accused does not follow up the same with further blows, that conduct by itself is not enough to hold that he did not have intention to kill. The accused may not follow up the initial blow by further blows for various reasons. After giving the first blow on the vital part of the body, the accused may feel that the same is enough to achieve the intention he had to kill the person or the accused may develop cold feet after having given the fist severe blow with intention to kill.

       Thus, merely because after giving first blow the accused does not follow it up with another blow, itself is not sufficient to show that the accused had no intention to kill when he gave the first blow. The accused persons chose sensitive part of the head and each of them gave severe blow on the head with dangerous weapons like stick and spade and ran away when the victim fell on the ground. Looking to the medical evidence and facts of the matte, the trial Court rightly came to the conclusion that offence under Section 307 of IPC is established. No interference is called for with regard to finding of offence under Section 325 of IPC, also. In the facts of the case, benefit under the provisions of the Probation of Offenders Act cannot be given to the accused persons.