IMPORTANT POINT
Attempt to murder – In order to attract offence under Section 307 of IPC, there must be intentional attempt to commit murder.

JUDGMENT

The accused in S.C. No.145/2009 on the files of the Court of the Additional District and Sessions Judge-I, Manjeri, has filed this appeal, under Section 374(2) of the Code of Criminal Procedure, 1973 [hereinafter referred as ‘Cr.P.C.’ for short], challenging the conviction and sentence imposed by the Sessions Judge, against him as per the judgment dated 25.09.2014. The State of Kerala, represented by the Public Prosecutor is arrayed as the respondent herein.

2. Heard the learned counsel for the appellant and the learned Public Prosecutor, in detail. Carefully gone through the verdict under challenge and the records of the Sessions Court.

3. Parties in this appeal shall be referred as ‘accused’ and ‘prosecution’, hereafter.

4. The prosecution allegation is that, at about 05.00 p.m. on 17.05.2005, in front of the Govt. Hospital, Tirur, the accused herein and 4 other co-accused in the charge formed themselves into an unlawful assembly in prosecution of a common object of causing death of PW1 and bodily hurt on PW1 to PW3 and indulged in the act of rioting armed with deadly weapons and that the accused had wrongfully restrained PW1 to 3 from proceeding in any direction and that the accused herein stabbed on the back of PW1 with a knife with the intention or the knowledge that by such act if death of PW1 had resulted the accused would have been guilty of murder and that the co-accused had voluntarily caused hurt to PW2 and 3 by beating them with hands. On this premise, the prosecution alleges commission of offences punishable under Sections 143, 147, 148, 341, 323, 307 read with 149 of the Indian Penal Code [hereafter referred as ‘IPC’ for short], by the accused.

5. After framing charge for the offences punishable under Sections 143, 147, 148, 341, 323, 307 read with 149 of the IPC, the Sessions Court recorded evidence and completed trial. During trial, PWs 1 to 17 were examined, Exts.P1 to P15 and MO1 and MO2 were marked on the side of the prosecution. Even though, the accused was given opportunity to adduce defence evidence after questioning him under Section 313(1)(b) of Cr.P.C, he did not opt to adduce any defence evidence.

6. On appreciation of evidence, the Sessions Court found that the 1st accused was guilty for the offences punishable under Sections 307, 341 and 323 of IPC. Accordingly, the 1st accused was convicted for the said offences and sentenced as under:—

“In the result, the accused is sentenced to undergo Rigorous Imprisonment for 7 years and a fine of Rs.10,000 (rupees ten thousand only), in default, to undergo Rigorous Imprisonment for 1 more year for the offence punishable u/s 307 of IPC, further a sentence of Simple Imprisonment for 1 month and to pay a fine of Rs.500 (rupees five hundred only), in default, to undergo Simple Imprisonment for 5 days for the offence punishable u/s. 341 of IPC and further Rigorous Imprisonment for 6 months and to pay fine of Rs.1,000 (rupees one thousand only), in default, to undergo Rigorous Imprisonment for 2 months for the offence punishable u/s 323 of IPC.”

7. While assailing the verdict impugned, the learned counsel for the appellant/1st accused argued that, in fact, the 1st accused was not properly identified. Further, the evidence available are insufficient to enter into conviction for the offence punishable under Section 307 of IPC. At the most, the offence would attract in this case is only under Section 324 of IPC and not under Section 307 of IPC. Therefore, the learned Sessions Judge went wrong in finding commission of offence punishable under Section 307 along with 341 and 323 of IPC, in the instant case. On these grounds, the learned counsel for the accused pressed for interference in the verdict impugned and to reverse the finding of the trial court.

8. The learned Public Prosecutor supported the verdict of the Sessions Court and submitted that the evidence available in this case would substantiate that the 1st accused committed the offences punishable unde