JUDGMENT :

1. This appeal is filed challenging the judgment of conviction and sentence dated 07.12.2010 passed in S.C.No.23/2008 on the file of the Fast Track Court, Channarayapatna, for the offences punishable under Sections 307 and 448 of IPC sentencing the accused for a period of five years and to pay a fine of Rs.2,000/-for the offence punishable under Section 307 of IPC and sentencing the accused to undergo imprisonment for a period of three months and to pay a fine of Rs.250/-for the offence punishable under Section 448 of IPC.

The brief facts of the case:

2. It is the case of the prosecution before the Trial Court that the complainant Smt. N.T. Jayalakshmamma lodged the complaint against the appellant that on 22.11.2007 when she was alone in the house at around 12.00 noon, the accused trespassed the house of the complainant with an intention of taking her life and in furtherance of the same, he has assaulted her by means of iron rod and caused injuries on her head and other parts of the body. Hence, the police registered the case against the accused for the offences punishable under Sections 448 and 307 of IPC. The police after investigation have filed the charge sheet and the same was registered as C.C.No.46/2008 and on committal, the same was registered as S.C.No.23/2008.

3. The prosecution in order to prove the case, examined P.Ws.1 to 11 and got marked the documents at Exs.P.1 to 9. The prosecution also relied upon M.Os.1 to 3. The Trial Court after considering both oral and documentary evidence placed on record, convicted the accused. Hence, the present appeal is filed before this Court.

4. In the appeal memorandum, it is contended that the Fast Track Court has failed to take note of the fact that all the witnesses examined by the prosecution are interested witnesses, who are having political vengeance against the appellant, who is presently belonging to BJP. The Trial Judge also failed to take note of the fact that the motive and evidence is not at all proved. None of the witnesses have stated regarding the presence of the accused or his overt-act. Despite the same, the Trial Court committed an error in convicting the accused. The complaint was given at 1.15 p.m. though alleged incident took place at 12.00 noon, which clearly reveals that after thought the complaint has been lodged. The Trial Judge in a casual manner arrived at a conclusion basing on presumptions and surmises and erroneously convicted the appellant. The Trial Judge failed to take note of the fact that the prosecution has failed to prove the intention and motive and wrongly convicted the appellant. There are so many inconsistencies and contradictions in the evidence of the prosecution witnesses.

5. The learned counsel for the appellant in his oral arguments vehemently contend that even though the Trial Court has come to the conclusion that P.Ws.2 to 5 are not eye witnesses to the incident and they are circumstantial witnesses, erroneously convicted the accused. The evidence of doctor and victim are contrary to each other.

6. The learned counsel for the appellant submits that in order to attract Section 307 of IPC, three factors are essential intention, nature of injury and nature of weapon used. P.W.1 complainant herself has not spoken anything about the intention of the accused in attempting to take away the life of the complainant. It is only an improvement by the prosecution through the other witnesses regarding intention. The evidence given by P.W.1 is against Ex.P.1 – complaint. The Trial Judge has erroneously relied upon Exs.P.3 and Ex.P.5 x-ray is doubtful as it contains no date and time. Dr. Mahesh has treated the injured. P.W.7 doctor who has been examined is children specialist and not orthopedic. X-ray produced before the Court is also manipulated. Both the evidence of P.Ws.1 and 7 cannot be believed. M.Os.1 and 2 – clothes of the victim and M.O.3 – alleged iron rod used to assaulting and the FSL report, are not produced before the Court. The v