The conviction under Section 307 IPC was not sustainable due to insufficient evidence of intent to kill, leading to modification to Section 324 IPC.

JUDGMENT :

(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)

1. This Criminal Appeal preferred by the accused Popatsinh Kalusinh Makwana – original accused no. 1, is directed against the impugned judgment of conviction and order of sentence dated 28.01.2005 passed by the Sessions Judge, Sabarkantha at Himmatnagar in Sessions Case No. 4 of 2004, by which, the appellant has been convicted under Section 307 of the INDIAN PENAL CODE and sentenced to undergo imprisonment for a period of 3 years and pay fine of Rs.2000/-, and in default of payment of fine, to further undergo 30 days additional imprisonment.

2. The case of the prosecution in short is that, on 17.05.2003 at village : Fatehpur marriage function was organized by villager Shivsinh Waghsinh. In the said marriage, one Bhaktisinh Kodarsinh was invited and he had attended the marriage. After marriage ceremony, Bhaktisinh Kodarsinh invited by the complainant PW-1 Bapusinh for refreshment at his home. The son-in-law of Bapusinh PW-2 Kalusinh Parvatsinh was also there in the house of Bapusinh. During the discussion, the dispute arose on the identification of the caste of ‘Thakor’ between Kalusinh and Bhaktisinh. By intervention of PW-1 Bapusinh, the matter was resolved and thereafter, Bhaktisinh had left the house of PW-1. On account of said dispute at about 9-00 PM, the brother-in-law of Bhaktisinh i.e. present appellant – Popatsinh Kalusinh and other 4 persons armed with deadly weapon came in the house of complainant PW-1. They hurled abusive and assaulted Kalusinh Parvatsinh PW-2, who was sitting in front of house. According to prosecution case, the appellant, by weapon scythe gave a blow on the head of Popatsinh Kalusinh. He was severely injured and taken to Gambhoi Government Hospital and thereafter, Himmatnagar Civil Hospital and after taking primary treatment, he was referred to Ahmedabad Civil Hospital. He sustained injury over fronto parietal region and right side occipital region and there was a depressed fracture in parietal region. He was admitted at Ahmedabad Civil Hospital for about 10 days and discharged thereafter. In such circumstances, PW-1 Bapusinh lodged an FIR with Bhiloda Police Station, which came to be registered for the offences punishable under Sections 147 , 148, 149, 504, 307 r/w Section 114 of the INDIAN PENAL CODE and Section 135 of the BOMBAY POLICE ACT . The accused were arrested. The Investigating Officer, PW-10, after completion of the investigation, filed a chargesheet and the case was committed to the court of Sessions. Charges were framed to which the accused pleaded not guilty and claimed trial. The prosecution examined 11 Witnesses and exhibited 20 documents, to establish the guilt of the accused. After closure of the prosecution evidence, the accused were questioned under Section 313 of Cr.P.C., to which, they stated that the complainant party was the aggressor and had assaulted them, as a result, the appellant accused sustained a serious head injury, for which, the FIR on the same day was came to be filed against the injured Kalusinh Parbatsinh and others. Though opportunity was extended, no oral evidence having been adduced on the side of the appellant and others.

3. The trial Court, relying on the testimonies of injured witness and eye witnesses, came to the conclusion that it was the appellant, who inflicted serious injury upon Popatsinh Kalusinh PW-2, and having regard to the medical evidence, the trial court found guilty the appellant accused for the offence of attempt to murder, as defined under Section 307 of the INDIAN PENAL CODE and sentenced him to suffer 3 years rigorous imprisonment and acquitted other 4 accused from all charges.

4.