HIGH COU^.T^ CHHATTISOARH. BILASPUR Cr-Appeal No.717/2003 APPELLANT RESPONDENT Aiul Kumar s/o Shri Sukhnath Rani, aged about 25 years, R/o village-Bodhni Jharia, PoUce Station-Jauiagar, District- , Sia'guja(CG) VSersus •^. State of Chliattisgarh Tbrough:-The Police Station, Vishraaipur, District Sui^uja(CG). Appearaace: Shri Rakesh Paadey, counsel for fhe appeUaat. Shri Ashish Shukla, Govt. Advocate/ Additioual Public Prosecutor for fhe State. ORjU- JUDGMENT (18.05.2007) SUNIiLKUMAR, SINHA, J. Heard. 1. This appeal is directed against the judgment of conviction and order of seatence dated 30.4.2003 passed ia. Sessions Trial No. 161/2002 by the 1st Additioual Sessions Judge, Surajpur, District Sui^uja (C.G.) whereby fhe said Court after holding the appeUant guilty for tlie offence puaishable under Section 307 I.P.C., sentenced him to undei^o R.I. for 7 years and to pay a fine of Rs.500/-, in default of payiaent of fine, to furfher undeigo R.I. for 2 monfhs. 2. The case of the prosecution is that the victun namely Ganeshwari (P.W.9) is the wtfc of appeUant. On 23.01.2002 at about 15 - 16 hours bofh were goiag to fhe ia-laws place offhe appeUant. On fhe way, on soine dispute, fhe appeUaiit caught hold of fhe hair pf the victim and threw her on the ground, thereafter he assaulted on her neck wifh a knife. After fhe. Cr.AppeaINo. 717/2003 ^ \.. assault, fhiukiug fliat she is dead, he left the victhn on fhe way aad Qed fi^oin fhe scene of occurrence. The victun anvhow traveled to sonie distence aad rn.et one Rajan. Toppo (P.W.l). Rajan Toppo saw the iajuiy of the victiin. The victiiu was unable to speak. He munediately took her to the police station Bishrampur. A Soinha report was lodged iit the poMce station vide Ex.P.S/C. Based on which, fhe First Information Report {L Ex.P.9 was registeied. .-'The victmi was sent for medical examination to C.H.C. BishratapuT, where she was examiaed by Dr. Kamlesh Tamrakar (P.W.3) on 23.01.2002, who prepared injury report vide Ex. P.2. AcconliQg to him, he noticed one iacised wouad on her ueck adiueasunng 9 cin x 3 cni x 5 cia. The victiin was semi-unconscious and was under shock, therefore, he referred her to District Hospital, Ambikapur, where she was a^ain examiaed by Dr. Ramesh Patnaik (P.W.2), who prepared iujuiy report Ex.P.l on 25.01.2002. AccoKling to fhe said report, he also noticed one iacised wound adineasuring 6* x 1/2" x full thlckness, on aaterior part of neck 2" above suprastemal notch. The Trachea exposed wifh a circular hole of Va" diaineter. The iiijuiy was said to be caused by sharp cuttnij weapon and itwas grievous iu nature. Thereaiter, the weapon of tlie ofFence i.e., kaife was also seized which was of 6 */2" iu length aad 2 1/2" ia breadth. The sharp end was of about 2 1/2", the bluitt end was of about 4 W. This knife was seized on the memoraadum of the appeUant vide Ex.P-4 and it was examtaed vide Ex. P-3. Thereafter fhe statements of witnesses were recorded aad after formal iavestigation, fhe charge-sheet was filed in fhe Court of A.C.J.M., Stirajpur, from where it was committed to fhe Court of Sessions and m tum it was received on transfer by the 1st Addl. Sessions Judge, Surajpur, who conducted the trial aad passed the impugned judgment. It is agamst fhis judgment of cdnviction aad order of sentence, fhe appeUant has filed this appeal. Cr.AppeaI No. 717/2003 ^ 3. The conviction &nd sentence of fhe appeUant is based upon the testimony of P.W.9 Gaaeshwari Bai, supported by fhe testimony of P.W.l Rajau Toppo, further supported by the evidence of two Doctors namely Ramesh Patnaik (P.W.2) and Kamlesh Tamrakar (P.W-3). 4. Leamed coun.sel for the appeUaat argues fhat ia the facts aud circuinstaaces of this case, tiie participation of fhe <!'. appeUant is doubtful. He.''also argues fhat aa ofFence under •\. Section 307 I.P.C. would not be .inade out and fhe appeUant be acquitted. 5. On the other haad, learaed State Counsel opposes these argunients. He supports the judgment of conviction and order of sentence of fhe Sessions Court. 6. I have heard leamed counsel for fhe appeUant aad have also perused fhe records offtie Sessions Case, 7. So far as participation of fhis appellant is conceraed, it coines ia fhe evidence of the victim Ganeshwari (P.W.9) fhat the appeUant is her husbaud. On the fateful day, bofh were goiag to the iu-laws place of fhe appeUaat on a bicycle. When they reached near fhe forest uursery, on the way, fhey have got down from fhe bicycle for takiag some rest and they were goiag on foot. When she was moving forward, tlie appeUaat came from her backside aad firstly he caught hold of her hair and thereafter ttu-ew her on fhe ground aad then he assaulted on hei- neck with a knife. She deposed fhat due to fhe said assazilt, she became imconscious and when she regained consciousness, she found that fhe appeUaat is not there. She, aayhow, reached upto coUiery area where she inet a person who asked her as to who assaidted her, on which she repUed that her husbaad assaulted her. On which, the said person took her to Jauiagar Police Station. She further deposed that she was unable to speak due to mjury. She has also deposed vide paragraph 6 r ~r~—r (.. Cr.AppeaI No. 717/2003 fhat on earUer occasion also fhe appellant had pushed her ia the WeU. She deposed that she was issueless; fherefore, fhe appeUant was doing aU tiiis with her. The defence has not been able to bring any such factor ia the cross-examiaation of fhe victim which may lead to discredit her testunony. Rajan Toppo (P.W.l) deposes fhat when he was coiiung from his duty Mine No.ll, be saw that a girl was staadiag on the road. Slie was unable to speak due to cut .Sujuiy on her throat. She was te11ing soinefhiag by gestures. Therefbre, be took the girl to the police station on his bicycle. On the basis of this evidence, it is established that, -ia fact, fhe appeUaat has assaulted fhe victim and the iojuries received by her, were caused by the appeBaat. 8. So far as oflFence uiider Section 307 I.P.C. is conceraed, it has been held by fhe Apex Court in the uiatter of Setrfu. Presad v State ofBihar AtR 1965 S.C. 843 that in order to bring the offence hoine to accused, fhe prosecutiou must estebBsh that tus iatention was one of the three kinds luentioned in Section 300 I.P.C. The state of mind ofthe accused has to be deduced from. surroiinding circiunstaaces and inotive woiild be a relevaat circumstance aad where fhe evidence is not sufficient to establish witU certainty, existence of reqiusite iatention of kaowledge ofacciised, the accused can be convicted only under Section 324 I.P.C. and not mider Section 307 ofI.P.C. 9. In the matter of Seiri Klshan. & State of Bttrsiana v. SuikhMr Simih and others AJR 1988 S.C. 2127 the Apex Court fiu-ther held that under Section 307 I.P.C., what the Court has to see is, whefher fhe act irrespective of its result, was done with the iatention or knowledge and under circuinstaaces inentioned in fhat section. The intention or kaowledge of the accused inust be such as is necessary to constitute murder. Without sucb iagredicnt being estabUshed, there can be no offence of "attempt to murder". Under Section 307 I.P.C. the intention precedes the act attributed to accused. Therefore, the ———r- Cr.Appeal No. 717/2003 uitention is to be gatiiei-ed fium aU ciFcumstauces, and not anerely from. the consequences fhat ensue. The nature of the weapon used, maaner ia whicli it is used, xnotive for the crime, severity of fhe blow, the part of fhe body where the iajury is mllicted are soine of-fhe factors that may be taken into consideration to determine fhe iatention. 10. In fhe present case, jS we look into the evidence of the victim. as also the evidence of the two doctors, it would appear <>,. that fhe victixa who was the wffe,was badly assaulted by fhe Iiusbaad. Firstly, fhe husbaad caught hold of the hair of victim and threw her on fhe ground aad then he took out a knife aad had cut the tbroat offlie victim., the iujiuy iaflicted on the throat of fhe victma. was so severe that she received aa i&cised wound on fhe neck adineasuring 6" x Vz" x Va" and trachea was exposed aiid a hole ofW diaiaeter was created. Certainly fhe knowledge aad nitention of fhe appeUaat can be gathered from his action aad fhe uyury sustauied by fhe victnn. The appellaiit had used a knife which was of about 7" lengfh haviug a breadth of 2 Y2". Undisputedly, this was a deadty weapon. Therefore, it can be easily inferred that the appeUant attempted the life of his wife by using deadly weapon choosing one of the most vital parts of tfae body like neck aad causiug cut nyary on tfae neck, due to which, the tracheawas also cut aud a hole ofabout W diameter was created, as a result of whlch, the victim became unconscious and she was even unable to spcak. In the facts aud cn-cumstances ofthe case, aa offeuce under Section 307 I.P.C. wotdd be made out. In the opinion of this Court, fhe Sessions Court has coinmitted no erro? of law by convicting the appeUaiit under Section 307 I.P.C. aud sentencmg him to iindergo R.I. for 7 years. This appeal has no merit and the same is disaussed. Sd/- Sunii Kumar Sinha Judge I w