Crl.A. 12/2007 BEFORE HON\BLE MR JUSTICE A K GOSWAMI The appellant herein has been convicted under section 302 read with section 324 of the Indian Penal Code vide impugned Judgment and order dated 19.9.2006 passed by the learned Additional Sessions Judge, Fast Track Court in main case No. 15 of 2005. After so convicting, the appellant has been sentenced to undergo 7 year s rigorous imprisonment and also to pay a fine of Rs.1,000/- for is conviction u nder section 307 of the IPC in default of payment of fine, the appellant has bee n sentenced to undergo six months simple imprisonment . At the same time, 3(thre e) years rigorous imprisonment has been warded under section 324 of the Indian P enal Code. 2. Being aggrieved with the conviction and sentence, the convict has prefer red this appeal. 3. Heard Mr. M Dutta, learned counsel for the appellant. Also heard Mr. BS Sinha, learned Additional Public Prosecutor for the State.I have gone through th e judgment and evidence of the witnesses. 4. Admittedly, the appellant was the wife of the victim at the relevant tim e. The record also reveals that the injured/ husband was living in his in-laws h ouse as ’ ghar jamai’. The prosecution case is that on 17.10.2002 while the inju red ( PW-2) was taking a nap in the house of the accused person , his wife/appel lant suddenly assaulted him husband with a sharp weapon, causing grievous injuri es on the neck and temporal region. 5. The father of the injured rushed to the place of occurrence and he took his son to the police station where from the injured was referred to the hospita l. On the next day, pw-1 lodged an FIR. After investigation, the wife and the fa ther- in- law of the injured were challaned. Both of them were tried for the off ence under section 326/ 307 read with section 34 of the IPC. However, after the trial, the father of the appellant has been acquitted. 6. As per the injury report, the victim had sustained the following injurie s:- ( i ) A transverse incised wound on the right side of neck severing the superfi cial big vessels causing profuse bleeding size of the wound was 2 x 1’ x 1 (ii) A transverse incised wound in the right temporal region of scalp. Size 3 x 1 ‰ x bone deep. Profusely bleeding. (iii) One incised wound starting from left scapular region extending obliquely t o the back of upper part of left upper arm. Size of injury- scapular part 1 ‰ x ‰ x muscle deep bleeding and upper arm part - 5 x 2 x muscle deep bleeding. 7. In the opinion of the doctor , all the injuries were fresh and caused by sharp cutting weapon. The doctor ( PW-3) further opined that the incised wounds were potentially dangerous to life by virtue of their positions. In view of thi s, there can be no difficulty to hold that the assailant had the intention to ca use death to pw-2 or at least had the intention to cause such bodily injury whic h is likely to cause death of a person or at least the assailant had the intenti on to cause bodily injury, which in the ordinary course of nature likely to cau se death. In other words the offence is squarely covered under section 307 IPC. 8. Now the question is whether the appellant had committed the offence. In this regard neither the injured nor his father was given any suggestion in the c ross examination that the injured was not in the house of the accused persons at the relevant time. On the other hand, while giving statement under section 313 of the Cr.P.C., the appellant had admitted the aforesaid facts. Not only that, t he appellant has also admitted the fact that at the relevant time, she was also in her house where the incident had taken place. However, giving statement under section 313 Cr.P.C., the appellant took a vague plea that she was innocent, wit hout projecting any defence story. In other words, the appellant did not take an y plea in the trial court that at the relevant time, she was not at home or that the incident did not take place in her house or that the victim was assaulted b y any other persons outside, at any other place. 9. Mr. Dutta, learned counsel submitted that the FIR was not lodged promptl y and the IO also did not seize the weapons of the assault as well as blood soak ed cloths of the injured and these deficiencies in the investigation should have been sufficient for the trial court to acquit the accused. 10. From the doctor’s evidence, it is apparent that the inured was taken to the hospital by a police home guard. Not only that, the doctor has also deposed that he examined the injured on police requisition. The I.O ( PW-5 ) has also d eposed that the incident was verbally reported at the police station and after r ecording a GD entry, he was directed by the O/C to take the injured to the hospi tal. Since, the prosecution did not produce any copy of the GD entry in the tria l court, the O/C of Ram Krishna Nagar Police Station was summoned by this court and the officer in charge confirmed that no GDE entry was recorded about the inc ident. 11. Be that as it may, in view of the fact that the statement of the I.O. ha s been corroborated by the doctor’s testimony, the informant’s version that the matter was reported to the police on the same day cannot be rejected out rightl y. Even, otherwise the written FIR was lodged on the very next day and as such, it cannot be said that the FIR was lodged belatedly. In the FIR, the name of the appellant was specifically mentioned as the assailant. 12. With regard to the non-recovery of the weapon, I am of the view that thi s cannot be a ground to acquit the appellant. For many reasons, a weapon may not be recovered during investigation. 13. Considering all the aspects, the conviction of the appellant under secti on 307 IPC is hereby affirmed. Since, the appellant has been convicted under sec tion 307 Indian Penal Code , further conviction under section 324 IPC is just su perfluous and not warranted. 14. Coming to the question of sentence, I have already said earlier that at the relevant time, both the injured and the accused were husband and wife. Besid es this, both PW-1 and PW- 2 have admitted that since the appellant’s sister had married one kabuliwala , the father of the injured was not happy about his son ’s marriage with the appellant. In this way, there was ill feeling and animosit y in both the families. Even otherwise, the prosecution is totally silent to bri ng on record about the genesis of the incident. Strangely, the injured is also s ilent as to what had transpired immediately before the incident. However, it is clear that there was ill feeling between PW-1 and his sons wife (the appellant) and as such the offence must have been committed in a state of provocation. 15. For the foregoing reasons, the substantive sentence of 7 years rigorous imprisonment is reduced to 5 (five) years rigorous imprisonment. However, amount of fine and the default sentence is hereby maintained, as recorded by the trial court. 16. With the modification of the sentence and also setting aside the convict ion of the appellant under section 324 of the IPC, the appeal stands dismissed. 17. The Registry is directed to return the LCR with a copy of this judgment. On receipt of the judgment, the trial court shall issue a modified custody warr ant.