The intention to kill is a necessary ingredient of the offense of attempt to murder under Section 307 IPC, and in the absence of such intention, the offense would fall within the purview of Section 324 IPC, which punishes voluntarily causing hurt by dangerous weapons or means.

SHIVAKANT PRASAD, J.

1. This appeal is directed against judgment and order dated 17.04.2008 passed by the learned Additional Sessions Judge, 2nd Fast Track Court, Tamluk, Purba Medinipur in Sessions Case No. 39(2) of 2004 vide Sessions Trial No. 2(II) of 2004 which arose out of G. R. Case No. 395 of 2000 corresponding to Tamluk P.S. Case No. 126 of 2000 dated 19th June, 2000 convicting the accused appellant under Section 307 of Indian Penal Code and sentencing him to suffer rigorous imprisonment for eight years and to pay a fine of Rs. 5,000/- in default to suffer rigorous imprisonment for six months with direction to set off pre-trial detention under gone as per section 428 of the Code of Criminal Procedure.

2. The brief fact leading to this appeal is that on 19.06.2000 at about 12.00 noon at Chapbasan, all the accused persons namely, Moslem Nayak, Rahim Nayak, Mohiuddin Nayak alias Moinuddin Nayak encroached some portion of the land of Fazlu Nayak and made construction of one Chala. Over that issue quarrel ensued between the accused person named above and the victims of the case resulting in misfight. The accused persons formed unlawful assembly with deadly weapons like knife (Chhura), lathi and sword etc. and attacked the victims as a result thereof all the victims suffered injury for which they were treated in hospital.

3. On the written complaint of Mantaj Nayek, Tamluk P.S. Case No. 126 of 2000 dated 19th June, 2000 under Sections 148, 149, 325, 326 and 506 of Indian Penal Code was started and on completion of the investigation, I.O. submitted Charge-sheet against the accused persons under Sections 148, 149, 325, 326 and 506 of Indian Penal Code. The case was committed to the Court of Sessions, Purba Medinipur at Tamluk and the same was registered as S.C. No. 38(2)/2004 and the case initiated by this appellant and Sessions Case No. 39(2) of 2004 initiated against the appellant and others and both the cases were transferred to the Court of learned Additional Sessions Judge, 2nd Fast Track Court at Tamluk and registered as Sessions Trial No. 1(II) of 2004 and Sessions Trial No. 2(II) of 2004 respectively. The learned Additional Sessions Judge tried both the cases concurrently and in Session Case No. 38 of 2004 vide Sessions Trial No. 1(II) of 2004 initiated by this appellant, learned Judge framed charges against the accused person under Sections 324, 308 and 506 of IPC whereas in the Sessions Case No. 39(2) of 2004 vide Sessions Trial No. 2(II) of 2004, learned Judge framed charges against the appellant and other accused persons under Sections 323/324/308/506-II of IPC, to which accused persons of both the cases abjured the guilt and claimed a trial.

4. To substantiate the charge against the accused persons/appellants, prosecution examined as many as 14 (Fourteen) witnesses and also adduced in evidence documents.

5. After the prosecution closed its evidence, the accused was examined under Section 313 of the Cr.P.C. but he declined to adduce any defence evidence. The defence case is one of denial of charges which emerges from the trend of cross-examination of prosecution witnesses.

6. Mr. Sabir Ahmed, learned Counsel for the appellant has contended that the prosecution had failed to establish ingredients of Section 307 of Indian Penal Code against the appellant and that the learned trial Judge should have relied on the testimony of P.W.-1. The statement of P.W.-2 is full of contradiction and did not corroborate the other witnesses.

7. Mr. Ahmed also contended that the learned Trial Judge should have taken note of fact that P.W.-3 has introduced new facts at the time of deposition different from the statement made before the Investigation Officer under Section 161 of the Code of Criminal Procedure, so no credence can be placed upon her deposition and learned Trial Judge failed to notice the discrepancy in the statement of P.W.-3 and P.W.-4. P.W.-4 stated in his deposition that there was mutual fighting between the appella