P.K. Musahary, J.

1. Heard Mr. A. Choudhury, learned Counsel for the Appellant and also heard Mr. B.B. Gogoi, learned Addl. P.P., Assam.

2. This appeal has been preferred against the judgment and order dated 16.11.2002 passed by learned Adhoc Addl. Sessions Judge No. 1, Kamrup (Assam) in Sessions Case No. 230 (K)/2001, convicting the accused-Appellant under Section 307 IPC and sentencing him to undergo to simple imprisonment for 3 years and to pay fine of Rs. 500/- and in default of payment of fine to undergo simple imprisonment for another one month.

3. Briefly stated, the prosecution story is that on 22.06.2001 at about 4.30 PM at Salmara under Baihata Chariali P.S. the informant, Shri Khogen Deka, S/o Shri Saganmal Deka of the said village went to their seedling orchard to see the growth of seedling which was situated near the residence of accused, Shri Kiran Deka. After entering into the said orchard he found that a goat was roped inside the seedling bed and the goat was feeding on the seedlings and damaging it. He found that somebody purposefully roped the goat in the seedling bed. Then he tried to pull out the knot of the rope from the seedling bed and at that moment the accused, Kiran Deka arrived there and inflicted a blow with a dao on the back side of his head with an attempt to kill him and caused grievous injury to him. The accused then fled away immediately. The informant, Shri Khogen Deka was immediately rushed to the nearby clinic and then he was shifted to Guwahati Medical College Hospital with the help of some other persons. On a written FIR lodged by the informant, a case being Baihata Chariali P.S. Case No. 48 of 2001 under Sections 326/307/506 IPC was registered. The police investigated the matter and after completion of the investigation, submitted the charge sheet against the accused-Appellant under Sections 307/326/506 IPC. The learned S.D.J.M., Rangia committed the case to the Court of Sessions, Kamrup, Guwahati. On receipt of the case records, the learned trial Court framed the charges under Sections 307/326 IPC against the accused-Appellant. The charges were read over and explained to the accused-Appellant, he pleaded not guilty and claimed to stand the trial.

4. The prosecution examined as many as 7 witnesses including the I.O. and the M.O. to establish the charge against the accused-Appellant. The defence examined only one witness. The informant and victim, Shri Khogen Deka was examined as PW 1. Maintaining the allegations made in the FIR against the accused-Appellant, the PW 1, deposed that he visited the place of seedling orchard on 22.06.2001 at about 3 PM and he found a goat was roped for feeding the seedlings by some body purposefully. He removed the knot of the rope and called out the people of the accused's house as the said goat belonged to them. Then, the wife and elder son of the accused came out and then he asked why they had roped the goat over the seedling bed. On his enquiry, they replied that the goat entered into the seedlings bed by getting the rope disconnected from the original roping place. Not being satisfied with the answer, the informant told them that he would take the goat to the village headman. Then the wife of the accused asked him not to take the goat to the village headman and assured him not to repeat such thing again. During such conversation, the accused Kiran Deka came from the back side with a dao in his hand and inflicted a blow, causing serious injury on the backside of his head, just above the neck. He pressed the injury with a hand and cried out for help. He called out Giridhar Deka (P W 4) and at that moment, the accused fled away with dao. Shri Giridhar Deka (PW 4), Mintu Sarma (PW 5) lifted him up and brought him in an auto-rickshaw to a private clinic of Dr. Bolin Deka at Baihata Chariali where he was given preliminary treatment and thereafter referred to Guwahati Medical College Hospital.

5. The informant was hospitalized in the said medical college hos