Indian Kanoon - Search engine for Indian Law

5. The trial Court, after framing necessary charges, examined the witnesses P.Ws.1 to 8 and marked Exs.P-1 to P-12 and Ex.D-1 and M.Os.1 to 5 and convicted the accused as stated above, against which, the accused preferred appeal and the first appellate Court, after hearing the arguments of both sides, modified the judgment of the trial Court as indicated above, against which, the present Crl.R.C. is filed by the revision petitioners/A1 and A2.

6. Challenging the conviction and sentence passed by the first appellate Court, learned counsel for the revision petitioners/A1 and A2 stated that the occurrence has taken place out of sudden provocation and so, the ingredients of Section 335 IPC alone are made out and not under Section 308 IPC. He culled out the portion of the evidence of P.Ws.1, 3 and 4 and their evidence clearly proved that the revision petitioners/A1 and A2 are having the right of way through the land and the accused had a right of private defence and that factum has not been considered by both the Courts below. He further submitted that P.W.1 alone is the aggressor and that factum also has not been considered by both the Courts below. The offence punishable is neither under Section 326 IPC, nor under Section 308 IPC and the offence under Section 335 IPC alone is attracted. Learned counsel further submitted that some leniency may be shown to the accused and compensation could be fixed taking into consideration the financial capacity/paying capacity of the accused. In support of his contentions, learned counsel relied on the decision of the Supreme Court reported in 2004 (1) Crimes 177 (SC) (Mangilal Vs. State of Madhya Pradesh) and also the judgment of the Apex Court in Crl.A.Nos.1052 and 1053 of 2010, dated 11.5.2010. Learned counsel further submitted that his clients are ready to pay Rs.15,000/- as compensation and prayed for allowing the Crl.R.C.

10. This Court has to decide as to whether the ingredients of Section 308 IPC or Section 307 IPC, are made out.

11. Learned counsel appearing for the revision petitioners/A1 and A2 submitted that, as usual, A1 passed through the way, which was prevented by P.W.1 and they pushed each other and then only A1 called his son A2 who was coming in the opposite direction and directed him to finish him off. Learned counsel further submitted that because of the attitude/action of P.W.1, out of sudden provocation, the accused were forced to commit the offence and hence, only the ingredients of Section 335 IPC are made out and neither the offence under Section 307 nor Section 308 IPC, is made out. The punishment under Section 308 IPC is less than the punishment under Section 307 IPC.

12. Admittedly, the trial Court has convicted the accused under Section 307 IPC, but the first appellate Court, without assigning reasons, altered the offence to one under Section 308 IPC, against which, no revision petition is preferred by the State. The first appellate Court has convicted A-1 under Section 308 read with 109 IPC and A-2 under Section 308 IPC and sentenced them thereunder.

13. Now, it is appropriate on the part of this Court to find out as to whether the offence attracted is under Section 308 IPC or under Section 335 IPC. It is proper to incorporate Section 335 IPC, as follows:

14. As per the evidence of P.W.1 and P.W.2 Doctor, P.W.1 sustained grievous injury and his left hand below elbow had been severed. Because of the attitude/action of P.W.1, the occurrence has taken place. Admittedly, the accused had no motive to commit the murder. On the fateful day, as usual, when A1 used his way to reach his property, he was prevented by P.W.1 and then the occurrence has taken place. The accused is not entitled to the right of private defence since exceeded the limit. That factum has been clearly considered by the trial Court. Considering the evidence of P.W.1, it is clearly proved that at that time, the accused had intention to murder P.W.1. So, A-1 gave direction to his son A-2 by uttering the words to finish him off. A-2 who possessed knife in his hand, assaulted P.W.1, which was prevented by P.W.1, which resulted in severance of P.W.1's left hand below elbow. So, this shows that at the time of commission of the offence, the accused had an intention to commit the murder. In such circumstances, I am of the view that only the ingredients of Section 308 IPC are made out and not under Section 335 IPC. So, the offence under Section 308 read with 109 is made out against A1, since A1 instigated A-2 to commit the offence and Section 308 IPC is made out against A2. While considering the evidence of P.Ws.1, 2 and 3, it is clearly proved that there was enmity between the parties, resulting in the occurrence, beyond reasonable doubt and hence, I concur with the findings of the first appellate Court in respect of the guilt of A-1 under Section 308 read with 109 IPC and A-2 under Section 308 IPC. I do not find any illegality in the conviction passed by the first appellate Court. Therefore, the conviction passed by the first appellate Court against A-1 under Section 308 read with 109 and under Section 308 IPC against A-2, is confirmed.