A conviction can be altered from attempted murder to voluntarily causing hurt when intent to kill is not sufficiently proven within the evidence presented, affirming the principle of rehabilitation for youthful offenders.

JUDGMENT :

CHAITALI CHATTERJEE DAS, J.

1. By filing this criminal appeal under Section 374 (2) of the Code of Criminal Procedure challenge has been made against the judgement dated 27^th August,2009 and order of conviction dated 28^th August,2009 passed by the Learned Additional Sessions Judge, Fast Track Court, Krishnanagar, Nadia in connection with sessions trial no Vi (11) 2007 arising out of sessions case no 38 (12) 2006, convicting the appellants for commission of offence punishable under Section 307/34 of the Indian Penal Code and sentencing them to suffer Rigorous Imprisonment for 4 years and to pay a fine of Rs. 500/- each in default to suffer simple imprisonment for one month for the offence punishable under Section 307 /34 of the Indian Penal Code.

2. The prosecution case was launched on the basis of a complaint lodged by one Islam Mallik, the de-facto complainant against the present appellants alleging that on 26^th November, 2005, Saturday at about 5.30 P.M. his son one Samsul Mallik with his brother Manirul Mallik were proceeding towards ferry ghat to call from Akbar’s telephone booth. At that point time the present appellants, Khalek Sk., Din Mahammed, Hara Sk., Lalan Sk., Rohit Sk. obstructed the path of his son and Bhaipo near the house of Din Mohammed armed with ramdah a (big chopper) and “hasua (big sickle) (sharp cutting weapon), when his son raised protest the aforesaid persons hacked his son on his neck with the ramdah with an intention to kill him, as a result he sustained a deep cut neck injury as well as bleeding injury. He further alleged that his Bhaipo Manirul Mallick was repeatedly hacked on the neck, head and different parts of the body and was seriously injured. After hearing shouts and screaming the de-facto complainant and some other people rushed over there and the accused persons fled away and then both the injured got admitted at Shaktinagar Hospital in a serious condition. The de-facto complainant also explained the delay in lodging the FIR on 28th November, 2005 as he was busy making arrangement for treatment of the injured. The Chapra P.S. case no 260 dated 29^th November, 2005 under Section 341/324/326/307/34 IPC started and after completion of the investigation the I.O. submitted the charge-sheet on 30^th December, 2005 against the 5 accused persons. Subsequently, the case was transferred before the Court of Additional District and Sessions Judge, Fast Tract Court iv, Krishnanagar, Nadia for trial being exclusively triable by a Sessions Court on commitment.

The Learned Court after assessing the evidences adduced by the prosecution witnesses examining the accused persons under Section 313 of Cr.Pc and also the exhibited documents placed before the Court passed the order of conviction against the present appellant namely Hara Sk. Lalon Sk.,Rohit Sk. and Khalek Sk. under Section 307/34 IPC and one accused Din Mohammad was found not guilty and was discharged from his bail bond. Being aggrieved thereby the instant appeal has been filed.

Submissions

3. It is submitted on behalf of the Learned Advocate representing the appellants that 5 persons were named in the FIR which was lodged at the instance of the de-facto complainant and after completion of investigation the charge-sheet was submitted against all the five persons for commission of the same offence but the Learned Trial Court passed the order of conviction against 1 to 4 and acquitted Din Mohammad who was absolutely similarly circumstanced with