Crl.A. 386/2003 BEFORE THE HON’BLE MR. JUSTICE U.B. SAHA JUDGMENT AND ORDER(ORAL) 1. The instant appeal is directed against the judgment and order dated 14.1 1.2003 passed by the learned Ad-hoc Additional Sessions Judge, Kamrup, Guwahati in Sessions Case No.284(K)/2000 whereby and where under the appellant herein was convicted under Section 307 IPC and sentenced him to suffer RI for 7 years and to pay a fine of Rs.500/-, in default to suffer further simple imprisonment for 6 months and also convicted him under Section 323 IPC and sentenced to suffer 6 months RI and also convicted him under Section 448 IPC and sentenced him to suf fer another 6 (six) months RI. All the sentence shall run concurrently. 2. Heard Mr. K. Agarwal, learned counsel appearing for the appellant as wel l as Mr. B.S. Sinha, learned Addl. P.P., appearing for the State-respondent. 3. The prosecution story in short is as follows - That on 17.7.1996, PW-1, Prasanta Karmakar, the elder brother of PW-6, M anoj Karmakar lodged information with the Officer-in-Charge, Noonmati Police Sta tion alleging inter-alia that on that day at about 12.30 p.m. when his elder bro ther PW-6 was preparing his meal at his house, the accused-appellant Devilal Sha rma being armed with a Nepali Khukri went there and hit him on his head and caus ed grievous injury with an intention to kill him. The accused also inflicted inj ury on the right leg. The informant was at that time not in the place of occurre nce but was returning from his work place where Chandan Raut informed him about the aforesaid incident and told him that his brother had gone to Gauhati Medical College Hospital for his treatment. The police upon receipt of the first inform ation report registered a police case being Noonmati P.S. Case No.139/96 under S ections 448/326/324/307 IPC and thereafter proceeded for investigation. Upon inv estigation, the Investigating Authority filed charge sheet against the accused-a ppellant herein under Section 448/323/324/307 IPC. As the case is a session tria ble one, the case was committed to the Court of Sessions Judge, Kamrup who subse quently, transferred the same to the court of learned Additional Sessions Judge for trial. Learned Additional Sessions Judge, Kamrup after hearing the parties f ramed charges under Sections 448/324/323 and 307 IPC. The charge was read over a nd explained to the accused person to which he pleaded not guilty and claimed to be tried. 4. The prosecution examined seven (7) witnesses including the official witn esses. After closure of the prosecution evidence, the statement of the accused u nder Section 313 CrPC was recorded. As such, the case of the defence is of total denial. 5. After hearing the learned counsel for the parties and considering the ev idence on record, the learned Ad-hoc Additional Sessions Judge passed the impugn ed judgment and order convicting the accused Devilal Sharma and sentencing him t o suffer RI as stated (Supra). 6. Mr. K. Agarwal. Learned counsel appearing for the accused-appellant whil e urging for setting aside the order of conviction and sentence as impugned in t he appeal would contain that the whole case is based on evidence of only solitar y witness, PW-6, i.e. the so-called victim and other witnesses are heresay witne ss. PW-5 the doctor, who examined the PW-6 injured victim, opined that injury wa s simple and was caused by blunt weapon. He further contended that there was no intention on the part of the accused while alleged offence was committed. Theref ore, Section 307 IPC is nowhere attracted as in order to constitute an offence u nder Section 307 IPC, two elements are necessary to be satisfied by the prosecut ion i.e. (a) an intention of knowledge of committing murder, (b) the doing of an act towards it. In the instant case though the act of the person complained aga inst is available but intention to kill PW-6 is totally absent. He further conte nded that to establish that the accused has committed offence under Section 307 IPC, the prosecution is to establish that at the time using the Khukri for hitti ng the PW-6, the accused had the knowledge as described in Section 307 IPC. In t he instant case, the prosecution failed to prove the requirement of Section 307 IPC and in absence of intention when attempt was made for committing murder then even if the accused caused hurt by a dangerous weapon then the same would come within the purview of Section 324 IPC and in the instant case, at best the prose cution established a case of Section 324 IPC and not under Section 307 IPC. He f urther contended that when a person is convicted under Section 307 IPC, at the s ame time he cannot be convicted under Section 323 IPC. Mr. Agarwal finally conte nded that if the Court would consider the evidence of PW-5 and PW-6 together, th en at best a case under Section 324 IPC is made out and not under Section 307 IP C. In the instant case, learned trial Court at the same time when convicted the accused-appellant under Section 307 IPC, also convicted the appellant herein und er Section 323 and 448 IPC. In the instant appeal, the appellant was in custody for about 132 days anterior and posterior to the conviction. Therefore, it would be appropriate for this Court to hold that the offence if any committed, commit ted under Section 324 IPC, not under Section 307 IPC, and the period of sentence which he had already suffered would be sufficient. 7. Mr. B.S. Sinha, learned Addl. P.P. fairly submits that from the evidence of PW-5 and PW-6 a case under Section 324 is made out and not under Section 30 7 IPC and even PW-6 also nowhere stated that the blow which has been caused by t he accused-appellant was with the intention to kill him with Nepali Khukri. More so, PW-5 the Medical Officer in his evidence specifically stated that the natur e of injury was simple and was caused by blunt weapon and both the injuries mig ht be caused due to fall on hard substance. 8. Before discussing the submissions of the learned counsel for the parties , it would be appropriate for this Court to reproduce the evidence of PW-5 and P W-66 as the Trial Court mainly, recording the evidence of these two witnesses, c onvicted the appellant herein and consequent thereto passed the order of sentenc e as stated supra. PW-5 is Dr. Partha Pratim Barua, Asstt. Prof of Surgery, G.M.C. and the M/O of this case. According to this M/O examined as PW-5 on 17.7.96 he was working as R egistrar of Surgery in GMCH and on that day on examining one Manoj Karmakar he f ound one deep cut (sculp deep injury over the Occipital region of 10cm x 4cm siz e and one deep cut injury over the left parital region 8cm x 4cm in size with bl ood present in b oth the wounds. He opines that the injury was simple and was ca used by blunt weapon. He proves Ext.3 as the medical report and Ext.3(1) is his signature. During cross examination he says that both the injury may be caused d ue to fall on hard substance. He says that the injury were not fatal and man wil l not die due to such injury. PW-6 is Manoj Karmakar, the alleged victim of the incident. According to this PW -6 he knows the accused person of this case. He says that on 17.7.96 at about 12 .30 p.m. when he was preparing his meal the accused went to his house and caused him hurt on his head with a nepali Khukri. He says that on his raising hulla ma ny people gathered at the P.O. and handed over the accused to police. He says th at on being informed by people, police came to the P.O. and his younger brother Prasanta Karmakar filed the ejahar at the P.S. He claims that he was taken to GM CH for his medical treatment where he underwent medical treatment for one week. He avers that blood came out from his head. During cross-examination he says tha t his house and the house of the accused are separated by 10/12 houses. He claim s that he knows the accused from 8/10 years prior to the date of the incident an d he also knows the other members of his family. He says that on his raising hul la Tapan, Modak, Munna Ali. Shwapan and several persons working at bekari came t o the P.O. He says that he did not lose his sense as a result of the incident. H e avers that his blood stained clothes were taken by the police at GMCH. He also claims that Prasanta (i.e. his younger brother) accompanied him to GMCH He says that police did not recorded his statement. He denies the defence suggestion th at his allegation that the accused caused him hurt with a khukri is false, that he had illicit relations with the wife of the accused and in order to elope with the wife of the accused he had filed a false case against the accused. 9. Learned Trial Court while considering the evidence of prosecution witnes s specifically stated that the PW-1 was a heresay witness and PW-2, Ahmed Ali wa s not aware about the alleged incident for which he/she could not support the ca se of the persecution. PW-3, Parbati Sharma was also not at home at the relevant time. PW-4 is the Ad-hoc Additional Sessions Judge, Mangaldoi who recorded stat ement of the accused-appellant under Section 164 CrPC which in fact subsequently resile by the appellant herein and the Trial Court also did not accept the said 164 CrPC statement on the ground that the same was not the voluntary statement of the appellant. Learned Trial Court while convicting the appellant under Secti on 307 IPC observed that if the injuries are caused on the vital parts of the bo dy with dangerous weapon, it amounts to the offence of attempt to murder as envi saged under Section 307 IPC and in the instant case, it is clear from the eviden ce on record that the accused inflicted injury by a dangerous weapon on the head of the victim Manoj Karmakar which is a vital part of his body which is an offe nce of attempt to murder as defined under Section 307 IPC and there is no eviden ce on record to show that the accused was unsound mind or that he was unmindful on account of intoxicated condition which made his act against his will and with out his knowledge. 10. Having heard the learned counsel for the parties and on going through th e evidence of PW-5 and 6, it can be said that though the burden is upon the pros ecution to establish that the intention of the appellant for causing particular injury to PW-6 was any of the three kinds referred to Section 300 of the Indian Penal Code but in the instant case, the prosecution failed to establish that int ention of the appellant in causing the particular injury while he allegedly caus ed the injury. Thus, it cannot be said that a case under Section 307 IPC is made out. More so, when the alleged weapon Khukri was also not produced before the c ourt at the time of trial that itself created doubt regarding the use of such we apon. The Doctor PW-5 nowhere stated that the injury found by him is caused by a sharp cutting weapon like Khukri. Rather he stated that the nature of injury is simple in nature and that was caused by a blunt weapon. In the prosecution evid ence even there is no evidence that the appellant had any enmity with the PW-6 f or committing the offence as alleged. No doubt when the PW-6 was in his house al one, the accused-appellant allegedly entered into the house there might not have any other evidence for corroboration of his statement to prove that the case is made out under Section 307 IPC but from the evidence of victim PW-6 also no cas e made out for convicting the accused under Section 307 IPC. At best a case of S ection 324 IPC is made out. It is true that the witness particularly PW-6 stated in his deposition that the appellant used the Nepali Khukri. It is also true th at the injury was inflicted on a vital part of the body but no vital part was in jured. Again the Trial Court as well as this Court do not know how and what type of Nepali Khukri was used as the same was not produced before the Trial Court a s well as the Appellate Court. The prosecution also did not elucidate through th e witness about the size and nature of the Khukri. Therefore, this Court is unab le to say that the appellant was with such an intention or knowledge for attempt ing murder of PW-6. PW-6 nowhere stated that he had made an attempt to resist th e accused-appellant while he was causing injury attempting to kill him. In the a bove circumstances, this Court is of considered opinion that prosecution fails t o establish that the offence committed by the appellant falls under Section 307 IPC, at best an offence under Section 324 IPC is committed by the appellant. 11. At this stage, Mr. Agarwal, learned counsel for the appellant brings to our notice the fact that the appellant is the only person in his family to look after his children due to death of his wife on 19.7.2008. The appellant is about 45 years of age and he preferred this appeal in the year 2003 and since then th e appeal is pending before this Court though the alleged offence was committed o n 17.7.1996 and at present he is living along with his three children out of whi ch one is daughter and two are son. One daughter is 19 years old and two sons ar e at the age of about 18 years and 13 years, respectively. The youngest son who is 13 years of age is suffering from hydrocephalus and permanently disabled and needs assistance to walk. In this situation, the Court has to consider whether i t would be proper again to send the appellant in jail to suffer the sentence for commission of offence under Section 324 IPC or the Court should pass an order o f sentence for payment of fine, as for commission under Section 324 IPC, the Cou rt can punish either imprisonment for a period which may extend three years or w ith fine or with both. 12. In view of the above submission of Mr. K. Agarwal, this Court is of cons idered opinion that it would be appropriate for this Court to set aside the orde r of conviction and sentence passed by the learned Trial Court under Section 307 IPC as well as the order of conviction and sentence under Section 323 IPC. Acco rdingly, the same is set aside. However, this Court found the appellant guilty u nder Section 324 and under Section 448 IPC and accordingly appellant is convicte d for committing offence under above penal provisions. Now, this Court is to con sider what should be the sentence. Accordingly on conviction under Section 324/4 48 IPC, appellant is sentenced for the period already suffered by him as under t rial prisoner and as a convict for 132 days i.e. 4 months 12 days. According to this Court, it would be sufficient if the sentence is modified to the period the accused-appellant already suffered. As the appellant is on bail, the bail bond is discharged. 13. Appeal stands disposed of.