The court upheld the conviction under Section 307 IPC, establishing that the appellants had the intention to commit murder based on the evidence of eye witnesses and the nature of the assault.

JUDGMENT :

(Ananda Sen, J.)

This Criminal Appeal is directed against the judgment of conviction dated 28th June, 2016 and order of sentence dated 30th June, 2016, passed by learned 1st Additional Sessions Judge, Deoghar, in Sessions Trial No.297 of 2007, arising out of Mohanpur P.S. Case No.89 of 2007 (G.R. No.330 of 2007), whereby all the appellants were convicted under Sections 148, 323, 324, 341, 452, 307 & 504 of the IPC read with Section 149 of the IPC.

Appellant Nos.1 and 2 have been sentenced to undergo R.I. for 10 years for the offences under Sections 307/149 IPC and fine of Rs.10,000/- each and in default of payment of fine, they are further directed to undergo S.I. for 6 months. They are further sentence to undergo R.I. for 2 years for the offence under Section 148 I.P.C., S.I. for 1 year for the offence under Section 341 I.P.C., S.I. for 3 months for the offence under Section 452 I.P.C. and R.I. for 1 year for the offence under Section 504 I.P.C.

Appellant Nos.3 and 4 have been sentenced to undergo R.I. for 7 years for the offence under Section 307 I.P.C. and fine of Rs.5,000/- each and in default of making payment of fine they are further directed to undergo S.I. for 6 months. They are further awarded R.I. for 2 years for the offence under Section 148 I.P.C., S.I. for 1 year for the offence under Section 341 I.P.C., S.I. for 3 months for the offence under Section 452 I.P.C. and R.I. for 1 year for the offence under Section 504 I.P.C.

2. Heard learned counsel appearing on behalf of the appellant and learned A.P.P. appearing on behalf of the State and perused the materials available on record.

3. Learned counsel appearing on behalf of the appellants submitted that these appellants have been falsely implicated in this case. It is their case that since there was a free fight amongst the parties, the appellants could not have been convicted under Section 307 of the IPC. As per the appellants, the prosecution has failed to prove that the appellants had an intention to commit murder nor did they have any knowledge that the assault may lead to death. In absence of “knowledge” or “intention”, no conviction can be sustained under Section 307 of the IPC. It is also the contention of the appellant that there was no mens rea in commission of the offence. In absence of a mens rea, conviction of the appellant is bad.

As per the appellants, if the evidence of P.W.-1 is scrutinized properly one would understand that he is not the eye witness to the occurrence. The medical report also suggests that the injuries were of such a nature which cannot attract Section 307 of the IPC. The witnesses are highly interested witnesses and related to the informant, thus, their testimony is not believable and also there are contradictions in their statements.

Further there is a reference of C.T. Scan but the prosecution withheld the report of C.T. Scan. Withholding the medical evidence was fatal for the prosecution.

Learned counsel further submits that even if at all the conviction is upheld, the sentence be reduced to the period undergone since they have faced the rigours of the trial since 2007.

4. Per contra, learned A.P.P. submitted that in this case, P.W.-1 is an eye witness so is P.W.2. The P.W.-2 is the witness in whose house the appellants entered after chasing one of the injured persons i.e. Md. Ali and they assaulted him with tangi. From her evidence, nothing contrary could be extracted and she being a reliable witness, her testimony cannot be discarded. Further, it has been submitted that the Doctor’s report clearly suggests that the injuries were grievous in nature and on the vital part of the body i.e. the head. Thus, an inference has to be drawn that there was an intention to commit murder. P.W.-2 further stated that the villagers came and intervened, then only the appellants fled from the place of occurrence which clearly suggests that if the villagers would not have been there, Md. Ali and Tahir would have been murdered. There is consistent