HI6H COURT OF WHATTISeMtH. BIUta^R Crtm&ial Awcal No. 5S4 of 2005 Pintu @ Rtyesh VereiB State of Chhattisgarh JU&6MENT Pastfor; Z3.07.2007 Sd/- Sunil Kumar Sinha Judge ^-€^<\ '>''•/(* ei' '' (V APfB±AW RESPON&Bin' HI6H COURT OF WHATTISGMtH. BXLASPW Criminal ApBeal No. 554 of ZOCS Pintu @ Rqjesh, S/o. Umendra Prdsad Chhakku, CtBte- Ke«»ot,Aged about 22 years, Occupation - Wagery, R/o. Village Ranai, P.5. Patna, Tdisil Baikunthpur, Oistt. Koriya (C.6.) Versus State of Chhattisgarh, Throigh P.S. Potna, bistt. Koriya (C.©.) Aooeopwwe: Shri Ashok Kumar Shukla, counsel for the appellont. 5hri NX Mehta, Panel Lcn»yer,for the State. JU&6MENT (23.07.2007) SUNIL KUMAR SINHA. J. (1) Being aggpieved with the judgment of conviction ond order of sentence date 24.6.2005 passed by the Additional Sessioiw Jud9e, Baikunthpur, District Koriya in Sessions Trial No. 376/2004, wher-eby, the appellant was convicted under- Section 307 of I.P.C. <md sentenced to undergo R.I. for 4 yeors and to pay a fine of Rs.2j000/-, in defcMh- of payment of fine to further under^o R.I. for 6 nwnths, Ihe appellant has preferred this criminalappeal. (2) The atlegations ore tfiat the q>pellant has attempted the life of complainant- Muneshwari Boi (P.W.-10) on 21.5.2004 at dwut 5.00 o.m., when she had gone to onswer- the colt of nature. Muneshwo-i Bai was a neighbow of the appellant. The appenant wos keeping this view that she is a tone/vi and f<r this, he inflicted two injuries on her by a airord. Muneshwari Bai lodged the report on the some doy at about 9.00 a.m. vide Ex.-P/12, which contairw tiie nameof the appellont <s the assaikmt. Her medical exominfftion report Ex.-P/7 proved by Or. A.K.. Shanna (P.W.-4) would show -that she received the folkxwng iryu'ies: L-- Cruninal Aooeal No. 554 of2005 1) An incised wound (deep) on the back of scailp ruming upto teft ear pirmn, in size of 10 inch x l^ inch x 1 inch, margin regula-, clotted blood present. 2) An incised wound on the back portion of the head at occlpitot re9ion ddjoining to iryuy No.l, just vbove it, in size 6 inch x 1 indi x l inch, margin regulor, clotted blood present. (3) The conviction of the appellant is based upon the testimony of the complainant- Munediwari Bai (P.W.-10) corrobonrted by prompt F.I.R. and medical report. (4) Learned cowsel for -ttie appellarrt- orgued thfft"the identity of the appellont has not been established. Secondly, he argued that in the focts and circumstances of the case, w offence tffider Section 307 I.P.C. would not be made out and at the most, the offence would faft under Section 3241.P.C. (5) On the ottier hand, leamed coursel for the State supported the judgment of convictlon and order of sentence passed by ttie Sessions Court. (6) I have heard the leamed counsel for ttie pwties at length and have also perused the records of the Se^ions case. f7) So fw as first crgument re9ardin9 identity is concerned, thct cannot be occepted in view of the evidence of vict'im Munerfiwwi Boi (P.W.-10). She has deposed thot on •the fcrteful day, when she was retuming to her* hoise after answering the call of nature, the appellant met her near his house, she asked him as to cho is he ? rfie asked for 3-4 times but inspite of giving reply, the appeltont assdulted her with sword, which he was keeping with him. In •the cross-examination, a suggestion was giving to her> thot she could not see as •to who assaulted her but she denied the siqgestion moking reference to the appellant. Leamed counse! for the oppellant argued •tha* since she herself was asking os to who is Crinunal Aooeal No. 554 of2005 there, therefore, it appears •tfi<rt die could not identify the appellanf. This argument camiot be entertained because it is a natural conduct that a person may not identify another person frwn some distance and therefore, it is usualfy asked like this but when he comes closu*e to him then he knows who is he <nd ot that point ofJ'ime, his eorlier conduct of asking the name becomes inrelevmit. In the present ccee, the time of incident was 5.00 o.m. <nd ttie morrt+i was thot'of May, therefore, in normal course such a conduct was po»iblewhidi does not destroy the testimony of the victim regtrding identity of the <ypellant. Atoreover, as stoted above, they were neighbour^ and -they were knourn to eoch other- and the appellant was also named in the prompt F.I.R. There is no force in this argument and the same cannot be accepted. (8) So far as second orgument is concerned, leamed counsel for •ttie appellont relied on a decision of the M.P. High Court rendered in the matter of Rmi Wshno Vs. State sf M.P.. 2000 O) Cr.C.P. fM.P.) 240. In the said case, ttie accused was chn-ged with an offence under Section 3071.P.C. for allegedly attempting life of the victim wil+i the help of sword as in this case. The victim had received 6 iruuries out of which Kyuries No. 5 A 6 were as follows; " 5. Incised wound over left side neck betow ond back side of left ear, size 1" •|" X muscle deep c<nised by sharp cutting object duration 6 hows. Fresh bleeding present. 6. Incised wound over fefl- Pwito occipital re9iw vertically pt<»edsize4" X ^" X bone deep , caused by shorp cutting object duration within six hours. Presh bleedin9 present." In the said situation, while hearin9 the appeal, the High Court cowicted the appellant under Section 324 IP.C. keeping in vfew the naftire and size of the ir(jiries and the absence of motwe etc. (9) It is <m old principle taid down by Ihe Apex Court in the matter of Sarju Preaad-Vs-Sfwteaf Bihw. A 19W S.C. ff^that ih order to bring the offence home to accused, Ihe prwecution must establish that 4 Criminal Aooeal No. 554 of2005 —^2. his intention was one of the three kinds mentioned in section 300 I.P.C. The state of mind of the <rccused hoe to be deduced from surrounding cipcumstances and motive would be a relevant circumstance and where the evidence is not aifficient to establish witti certainty, existence of re<|uisite intention or knowledge of accused, the. accused can be convieted only u/s 324 and not u/s 307 IPC. (10) Further in Ihe matter of Hari Kishan S Stais of Harvana -Vs- Suklibir Sliyh end athers. A 1988 S.C. 2127, the Apex Cowt held thot u/s 307 IPC, what the court has to see is, whether the oct irrespective of its result, was done witti the intention or knowtedge ond under circimistances mentioned in thot section. The intention or" knowledge of the accused must be such as is necessory to constitute murder. Without this ingredient being established, thepe can be no offence of "attempt to murder". U/s 307 the intention precedes the act attributed to acciBed. Therefore, the intention is to be gothered from all circumstances, <md not merely from the coiwsquences thot ensue. The natwe of the weapon used, manner in which it is used, motive for the crime, severity of the btow, the part of the body where the iryury is inflicted are some of the factors that- m<y be taken into consideration to determine the intention. (II) If we apply the principles of above cases, in the facts and cir'cumstances of this case, it does not appew thot the appeflant w<s hoving an intention to ceuse the deatii of the victim, because •the motive to attempt the life of the victim has not been estcfelidied. It only comes in the evidence of the victim that the appellmt used to say her tonefii. due to which, he has aaaulted her but it no wher-e comes that on thot petty pretext he had a motive to cause her death. No instaices hove been brought on recor-d that ttie a^umption of the <ypetlont, that- the victim was a tonafr/, was so strong that he woutd tike to kill her. Apart from the above, it comes in Pwa-13 of the judgment that the iiyuries sustained by the victjm were simple in noture. These are the factors on which, it can be Criminal Amwal No. 554 of2005 vatti said that the intention of the appellant was not to cause the death of the victim- Muneshwari Bai (P.W.-10). Therefore, the conviction is required to be altewd from Section 307 to Section 324 IPC. (t2) In the reailt, the oppeal is partly allowed. The conviction and jail sentence awarded to the appellwrf' uider- Section 307 TPC we set aside. Instead thereof he js convicted under Section 324 TPC and sentenced to under-go R.I. for 3 yetrs. The fine sentence imposed <gainst the appellont along with the default sentence <re maintainect. The direction regording payment to the victim in case the fine is realized is also maintained. The appellant shall be entitled to set-off ond other usual benefits. Sd/- Sunil Kumar Sinha Judge 'r- -«- -e. S-- -/ tvl D ^- --;> ^