P.K. TRIPATHY, J.
(1.) Order of conviction under Section 307, IPC against the petitioner pronounced by learned Asst. Sessions Judge, Dharmagarh in Sessions Case Nos, 25/3 of 1991 and confirmed by learned Sessions Judge, Kalahandi at Bhawanipatna in Criminal Appeal No. 44 of 1991 is under challenge.
(2.) According to the case of the prosecution, while the injured (P.W.No. 9) was carrying on his business in the weekly market at Dharamgarh, at about 1.30 p.m., accused attacked him from behind and dealt kati blow as a result of which P.W. No. 9 sustained bleeding fracture injury on back side of the head and also over the angle of left mandible. Petitioner was caught red handed at the spot, injured was taken to the hospital
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police was informed and the law was set into motion. After completion of routine investigation, charge sheet was filed against the accused. Learned Asst. Sessions Judge framed charge for the offence under Section 307, IPC. Accused denied to the charge and claimed for trial. In course of trial as many as 11 witnesses were examined and series of documents were proved besides placing on record the blood stained wearing apparels as M.Os. I to IV and the weapon of offence i.e. Gagarakati, M.O.V. As it reveals from the record, amongst the witnesses, P. W. No.7 is the eye-witnesses to the occurrence and P.W. No. 9 is the injured P.Ws. 2, 3, 4 and 8 are witnesses who were present in the market. They did not see actual assault part, but witnessed the rest part of the occurrence relating to P.W. No. 9 having sustained bleeding injuries and the accused-petitioner being caught by P.W. 'No. 7 and others. P.W. No. 5 is the Doctor who granted treatment and prove the injury certificate, Ext. 4 and opinion report Ext. 5 P W. No. 1, father of the injured was the informant. P.W. No. 11 was the Investigating Officer and rest of the witnesses were formal in nature being witnesses to search and seizure. As against that accused examined Jageswar Pata as D.W. No. 1 who was also present in that market being selling 'Gupchup'. He stated that he did not see the accused in the market on that date and no such occurrence took place.(3.) On assessment of such evidence on record, the Courts below while accepting prosecution version rejected the evidence of defence as untrustworthy and unreliable. Both the Courts below found the evidence lead by prosecution to be reliable in support of the charge under Section 307, IPC and accordingly convicted him with sentence of Rigorous Imprisonment for three years on the ground that by the date of occurrence the accused-petitioner was 22 years old. At this stage, it may be noted that P.W. No.9 has admitted in his cross-examination that there was land dispute and enmity between him and the accused.(4.) After hearing learned counsel for the petitioner, this Court finds no merit in the argument advanced by him that evidence of P.Ws. 2, 3, 4 and 8 are contradictory to the evidence of P.W. Nos.7 and 9 relating to the occurrence and that there is contradiction in the evidence of P.Ws. 7 and 9 regarding the manner of assault. In that respect after going through the evidence on record, this court finds that the opinion expressed by the Courts below to be correct relating to consistency in the evidence of such witnesses contributing to their credibility.(5.) Being unsuccessful in that aspect, learned counsel for the petitioner further argues that evidence led by the prosecution does not make out a case under Section 307, IPC. Learned Additional Govt. Advocate in that respect defends the impugned judgment of the courts below. This Court finds that it is not worthy to defend the impugned judgment and the criticism is well made by the petitioner.(6.) Section 307. IPC provides punishment for 'Attempt to murder. It provides that any act done with such intention or knowledge and under such circumstances that, if by that act death is caused then the offender would be guilty of murder. Section 299, IPC defines the offence 'Culpable homocide. Section 300. IPC defines the offence Murder and provides that except the exceptions as provided in that section, culpable homicide is murder if the act by which death is caused is done with the intention of causing death or causing such bodily injury as offender knows to be likely to cause the death or bodily injury so caused is sufficient in the ordinary course of nature to cause death or the person committing the act knows that it is so imminently dangerous that it must, in all probability cause death or such bodily injury as is likely to cause death. Therefore, an attempt to commit offence fulfilling any of the aforesaid ingredients (as provided in Section 300, IPC amounts to an offence under Section 307, IPC. In this case neither P.W. No. 7 nor P.W. No. 9 has stated anything indicating intention of the accused. In order words, they have not stated in their evidence that accused had the intention to kill P.W. No/9. The Doctor, P.W. No. 5, though stated that injury to the occipital bone was grievous and the injury of mandible was simple, he did not say if any of the injuries was sufficient in ordinary course of nature to cause death of P.W. No. 9 or was likely to cause death of the injured or that such injuries were imminently dangerous and in all probability could have caused death of P.W. No. 9. No other evidence was adduced by the prosecution to substantiate the charge for the offence under Section 307, IPC. Thus merely on the basis of the gravity of the injury on the head, the accused- petitioner could not have been convicted for the offence under Section 307, IPC. Accordingly, his conviction under Section 307, IPC is set aside.(7.) Learned Add1. Govt. Advocate rightly argues that even if the conviction under Section 307, IPC is to be disturbed but the occurrence proved by the prosecution makes out a case under Section 326, IPC and when charge has been framed for the offence under Section 307, IPC conviction can be made for the offence under Section 326, IPC. Without disputing to the aforesaid legal position, learned counsel for the accused-petitioner argues that in the absence of proof of the X-Ray report, a case of grievous hurt punishable under Section 326, IPC is not made out. On due consideration of the aforesaid argument and the evidence on record this Court finds that P.W. No.-5 has specifically stated about the X-Ray plate number and the fact that he had verified the same in respect to the fracture injury. Such evidence of P.W. No. 5 was not at all challenged. Under such circumstances absence of X-Ray plate as evidence does not put the accused/petitioner to any advantageous position. Keeping in view the nature and gravity of the injury and the weapon used by the petitioner, he is convicted for the offence under Section 326, IPC. In the meantime, a period of 15 years have elapsed and therefore, taking a liberal view, this Court imposes the sentence of Rigorous Imprisonment for one year and to pay a fine of Rs. 2,000/- (Two thousand) and in default to undergo RI for six months. On payment of fine the same be paid to the P.W. No. 9. The Criminal Revision is accordingly allowed in part. Intimate the Court below, Petitioner shall surrender within a period of two months from today failing which, it is open to the Trial Court to take recourse to the law to secure his presence in the prison. Revision partly allowed.
"2006 (2) Crimes 615"