THE HON’BLE SRI JUSTICE P. DURGA PRASAD CRL.A. No.2205 OF 2004 JUDGMENT: The present criminal appeal arises out of the conviction and sentence passed by the Principal Assistant Sessions Judge, Srikakulam, in Sessions Case No.26 of 2004 on 28-09-2004. The case of the prosecution is that on 23-07-2003, at about 8:30 p.m., the accused caught hold of Sri Simhadri Ramesh at the barriage junction, Hiramandalam, Srikakulam, and cut the neck of the said Sri Simhadri Ramesh with barber knife and caused bleeding injury, since the accused nurshed grudge against Sri Simhadri Ramesh suspecting that he is having illicit intimacy with the wife of the accused, Smt. Lalitha, and awaiting an opportunity to do away with her. The investigating officer recovered the weapon from the scene of offence on the next day under the cover of mediators report. The police have registered a case in Crime No.36 of 2003 and the accused was arrested on 25-11-2003 and remanded to judicial custody. The scene of offence was witnessed by Addanki Mejeesh Dev Prasad, Vysyaraju Nagaraju, Pandiri Adhilaxmi, Chandra Sekhapanigrahi, Simhadri Ramakrishna and Poddini Govindarao. The learned Principal Asst. Sessions Judge, Srikakulam, has framed a charge under Section 307 of I.P.C. against the accused and the accused pleaded not guilty for the said charge. In order to prove the charge, prosecution has examined P.Ws.1 to P.W.8 and got marked Exs.P.1 to P.6. D.W.1 was examined on behalf of the accused and got marked Ex.D.1 and M.O.1. After taking into consideration of both oral and documentary evidence, the learned Principal Assistant Sessions Judge, Srikakulam, found the accused guilty for the offence under Section 307 of I.P.C. and convicted him to undergo simple imprisonment for 10 years and to pay a fine of Rs.500/-. In default to pay the fine he shall undergo simple imprisonment for three months. Aggrieved by the said conviction and sentence, the present appeal is filed. Now the point that arises for consideration is whether the prosecution could able to establish the charge under Section 307 of I.P.C. against the accused beyond reasonable doubt? The main contention of the appellant’s counsel is that there is evidence on record to show that the accused has got any intention to cause the death of P.W. 1 and injury sustained by P.W. 1 is only simple in nature and the whole evidence on record is the evidence of P.W. 1 & P.W. 2 who did not speak about the intention of the accused to cause death of the P.W. 1. The learned appellant’s counsel has further pleaded that the prosecution did not establish the alleged motive for causing such act by the accused that he was having illicit intimacy with his P.W.1’s wife. Thus, the prosecution has failed to establish the offence under Section 307 of I.P.C. The learned Public Prosecutor on the other hand pleaded that even though the injuries sustained by the P.W. 1 are simple in nature as per the evidence of the doctor, the injury that was caused by accused on the neck of the P.W. 1 itself shows his intention to cause death and the prosecution has established the motive of the accused to cause the offence against P.W.1 by examining P.Ws.1, 2, 4 & 5. Hence, the judgment passed by the lower court does not warrant any interference by this Court. According to the prosecution, the offence took place on 23-07-2003, at about 08:30 p.m, at Barrage Center, Hiranmandalam, Srikakulam. The motive of the accused to cause the offence is that the accused bore grudge against the P.W. 1 suspecting that he was having illicit intimacy with his wife and on 23-07-2003, at about 08.30 p.m., when the accused was at the barrage junction, the accused caught hold of him from behind and attempted to cut the neck and in the process P.W. 1 sustained injuries and the weapon used by the accused was recovered from the scene of offence in the presence of the mediators by the investigating officer. This incident was spoken by P.W. 1 in his chief examination and according to him, the accused suspects that P.W.1 was having illicit relationship with his wife and one year back also the accused threatened him for that reason. According to him, when himself and P.Ws. 2, 3 & 4 are standing on the road talking with each other, the accused all of a sudden came from behind with a barber knife and cut his throat and pulled him down. P.Ws. 2, 3 & 5 are stated to be the eye-witness to the incident and P.W. 2, Sri A.M. Deva Prasad, has supported the version of P.W. 1 that the accused came from behind and cut his throat and he also identified the knife which was used by the accused and which was found at the scene of offence. P.W. 3, who is another eye-witness, even though was along with P.W.1 and 2 at the time of incident, did not state anything about the accused causing injury to P.W. 1 on the ground that he has gone to the road to bring his daughter. But he has stated about the presence of accused at the bus-stop at a distance of 40 feet from P.W. 4. Another eye-witness P.W.4 also supported the version of the prosecution. P.W. 5, the brother of the P.W. 1, has got the information about P.W. 1 sustaining injuries and was taken to the hospital he went to the hospital and upon the doctor’s advice P.W. 1 was taken to the Government Hospital, Srikakulam, and he has specifically stated that the accused had committed the offence with a suspicion that P.W.1 had illicit intimacy with his wife and that previously, the accused also threatened to hit P.W. 1 with tractor. Himself and P.W. 1 informed the said threat to the police but the police gave warning to the accused and left him. Apart from the evidence of P.W. 1 and P.W. 5, there is no other evidence to show that the accused was having illicit intimacy with his accused. With regard to accused attacking the P.W. 1, P.W.1, 2, 4 & 5 have supported the version of the prosecution and there is nothing to disbelieve their evidence. Moreover, the weapon used by the accused was seized from scene of offence. With regard to the nature of injuries sustained by P.W. 1, the prosecution has examined P.W. 7, Dr. G. Ratnakumari, and according to her on 23-07-2003, at about 09.20 p.m., she examined P.W. 1 and found the following injuries. (1) cut lacerated injury on the front of the neck 13 cm x 0.5 cm involving the muscles. (2) lacerated injury on the right index finger. and the injuries are simple in nature and might have been caused with a sharp edged object and the said caused injuries with a weapon like above one. Therefore, from the evidence of P.W.7, P.W.1 has sustained simple injuries. With regard to the intention of the accused to cause death of P.W. 1, the learned Principal Assistant Sessions Judge has observed that when the person attempted to cause injury over the neck of another person with a sharp weapon, it can be said that he intended to kill him. The evidence of causing injury on the neck of P.W. 1 with a sharp edged weapon is a clear intention of the accused to kill him. Therefore, the learned Principal Assistant Sessions Judge has come to the conclusion that the accused has got an intention to cause death of the P.W. 1 as the injury was caused on the neck. Simply because the injury was caused on the vital part of the body it cannot be presumed that the person who caused the said injury has got an intention to cause death. Such an intention has to be ascertained from the circumstances of the case in which injuries have caused. According to the prosecution of the present case, the accused has got suspicion on P.W.1 that he is having illicit intimacy with his wife. But the evidence does not disclose since how long the accused has got suspicion against P.W.1 and if the intention of the accused is to cause death of P.W. 1, he ought not have been attacked on P.W.1 when he was in the company of other three persons he would have attacked him when he was alone. Moreover, the accused caught hold of the neck of P.W. 1 from behind and tried to cut his neck and P.W.2 pulled him towards his friend’s side. Therefore, from the above circumstances, it cannot be said that the accused has got an intention to cause death of P.W.1. Thus, the finding of the learned Principal Assistant Sessions Judge, that the accused has got an intention to cause death of P.W.1 cannot be accepted. Since the attack of the accused on P.W.1 was established by the prosecution and as P.W.1 sustained lacerated injuries on his throat, he has committed the offence under Section 324 of I.P.C. but not under Section 307 of I.P.C. Thus, the accused is found guilty for the offence under Section 324 I.P.C. and, thus, the finding of the lower court that the accused found guilty for offence under Section 307 of I.P.C. is modified to that of Section 324 of I.P.C. and convicted and sentenced to simple imprisonment for a period of 1 year and to pay a fine of Rs.500/- in default to undergo simple imprisonment of three months. Accordingly, the appeal is partly allowed with the above said modification of conviction and sentence passed by Principal Sessions Judge, Srikakulam, in Sessions Case No.26 of 2004 dated 28-09- 2004. __________________ P. DURGA PRASAD, J January 25, 2011. NDR HON’BLE SRI JUSTICE P. DURGA PRASAD CRL.A. No.2205 OF 2004 January 25, 2011 ndr