The court affirmed the change of conviction from section 307 to section 324 IPC due to insufficient evidence of intent to kill, establishing the necessity of clear evidence for higher charges.

ORDER :

1. The revision petitioners were initially tried for the offence under section 307 read with section 34 of the INDIAN PENAL CODE , 1860 (for short 'IPC') and convicted to undergo rigorous imprisonment for two years apart from a fine of Rs.20,000/- each. In the appeal preferred by them before the Sessions Court, the conviction was altered to section 324 IPC and the accused were sentenced to undergo imprisonment for one year and to pay a fine of Rs.5,000/- each and in default to undergo rigorous imprisonment for three months each. Aggrieved thereby, the accused have preferred this revision petition.

2. Prosection alleged that due to enmity with the defacto complainant, the accused had on 06.12.1997 trespassed into the pathway of the defacto complainant, armed with an iron pipe and knife, and with the intention to cause death of the defacto complainant, assaulted him brutally on his head and abdomen and inflicted serious injuries, thereby committing the offences under sections 307 and 447 read with section 34 of the IPC.

3. In order to prove the prosecution case, PW 1 to PW13 were examined and Ext.P1 to Ext.P5 were marked while the defence examined DW1 and DW2 apart from marking Exts.D1 to D8. The learned Magistrate, after evaluating the evidence adduced, came to the conclusion that the accused are guilty for the offence under section 307 read with section 34 of the IPC and sentenced them to undergo rigorous imprisonment for two years apart from a fine of Rs.20,000/- each. A default sentence was also imposed.

4. As mentioned earlier, in the appeal preferred before the Sessions Court, Thrissur, the conviction was altered from section 307 to section 324 and the accused were sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.5,000/- each with a default sentence.

5. Since the counsel initially appearing for the revision petitioners had relinquished his vakalath, repeated notices were issued from this Court but the revision petitioners could not be served and therefore this Court had appointed an Amicus Curiae to advance arguments on behalf of the revision petitioners. Since the said Amicus Curiae had stopped practice and due to the long pendency of this revision petition, this Court decided to consider the matter on its merits, after hearing Smt.V.Sreeja, the learned Public Prosecutor.

6. The incident is alleged to have occurred at 10 am on 06.12.1997. Ext.P1 FI Statement was recorded on the same day at 11.45 am itself, on the basis of which Crime No.368 of 1997 was registered. PW1 is the injured witness while PWs 2, 3 and 6 are the occurrence witnesses. The learned Sessions Judge had after appreciating the evidence adduced came to the conclusion that the offence under section 307 is not made out, but only an offence under section 324 read with section 34 of the IPC alone is attracted.

7. PW1, who is the injured witness, had spoken in tune with the prosecution case and deposed about the assault committed on him. PWs 2 and 3, who are witnesses to the incident, had also supported the case of the prosecution and also deposed about the attack with the iron pipe. While appreciating the evidence of the prosecution witnesses, learned Sessions Judge had also noticed the inconsistencies in the evidence of PWs 2, 3 and 6 and it is for this reason that the court came to the conclusion that there is insufficient evidence to establish with certainty the existence of an intention to cause death of the victim.

8. Every aspect of the evidence adduced before the court was specifically considered. The findings entered into by the learned Sessions Judge are proper and regular and do not call for any interference.

9. I am in complete agreement with the conclusion of the learned Sessions Jude that the circumstances