Prosecution must prove intention to commit murder for conviction under attempted murder; mere infliction of injury is insufficient without establishing a clear intent.

JUDGMENT :

Chandra Shekhar Jha, J.

The present appeal has been preferred by the appellant-convict under Section-374(2) of the Code of Criminal Procedure (hereinafter referred to as ‘the Code’) challenging the impugned judgment of conviction dated 31.05.2005 and order of sentence dated 07.06.2005 passed by learned 1^st Additional Sessions Judge, Sitamarhi in Sessions Trial No. 71 of 2002/14 of 2003, whereby the concerned Trial Court has convicted appellant under Section 307 /34 of the IPC, where appellant sentenced to undergo rigorous imprisonment for five years along with fine of Rs. 2,500/- and in in default of payment of fine further directed to undergo rigorous imprisonment for six months. All aforesaid sentences ordered to run concurrently.

2. The brief facts of the prosecution case as it is apparent from written application lodged by the informant Bhagya Narain Singh (P.W.4) that on 01-03-2001 at 9.55 P.M. while he was talking with his nephew Dinesh Singh to participate in “bhoj” given by co-villager Indrajit Singh, at the same time, Pappu Singh came holding knife along with Guddu Singh and started abusing him. They demanded money from his nephew Dinesh Singh, when Dinesh Singh forbade them from hurling abuses and uttered that if the amount is due, then, they can demand the same, but it is not their right to abuse. On this, altercation took place. Vijay Singh and Sanjay Singh both brother of Pappu Singh also arrived and started hurling buses. They had also come for demanding money and were uttering that Dinesh Singh was making false pretext. They said to kill Dinesh Singh. On this, Ghuttuk Singh let down Dinesh Singh to the ground. Pappu Singh assaulted repeatedly. Dinesh Singh sustained injury and started crumbling. There had been a lot of bleeding. He became unconscious. He tried to save Dinesh, but as he was pushed by Sanjay Singh and Vijay Singh he failed to do so. On his shouting, persons from the vicinity arrived. The reason for the occurrence is altercation for demand of dues.

3. On the basis of aforesaid written application, given by P.W. 4, namely, Bhagya Narain Singh (informant) Shyampur Bhataha P.S. Case No. 08 of 2001, was registered for the offences punishable under Sections 307 , 341, 324, 447 and 504/34 of the INDIAN PENAL CODE .

4. Learned Magistrate on the basis of materials collected during investigation took cognizance and committed this case to learned Trial Court for its trial and disposal. Learned trial court accordingly framed charges against appellant-accused, which upon explanation to them pleaded as “not guilty” and claimed trial.

5. To substantiate its case, before learned Trial Court the prosecution has examined altogether 6 witnesses. One defence witness was examined in defence. They are:-

6. Apart from the oral evidence, the prosecution has also proved the following documents in order to prove the charges:-

7. The statement of the appellant-accused were recorded under Section 313 of the Code after stating them incriminating evidences/circumstances as surfaced during the trial, which they denied and shows their complete innocence.

8. Taking note of the evidence as surfaced during the trial and the arguments as advanced by the parties, the learned Trial Court has convicted appellant/convict for the offences under Section 307 and 307/34 of IPC and sentenced them in the manner as stated above.

9. Being aggrieved with the aforesaid judgment of conviction and order of sentence, the appellant/convicts have preferred the present appeal.

10. Hence, the present appeal.

11. It is submitted by learned counsel appearing on behalf of the appellant/accused that main assailant is Pappu Singh, whereas the conviction of other