Conviction for attempted murder under the IPC was inappropriate given the lack of intent, and the appellants were entitled to probation benefits due to the case's circumstances.

JUDGMENT :

PRADEEP KUMAR SRIVASTAVA, J.

Heard Mr. Anurag Kashyap, learned counsel appearing for the appellants as well as Mr. P.D. Agarwal, learned Spl.P.P. appearing for the State.

2. Present appeal is directed against the judgment and order dated 31.03.2006 passed by Learned Sessions Judge, Hazaribagh in Sessions Trial No. 203 of 1992, whereby and whereunder the appellants have been held guilty and sentenced for the offences under Section 307 and 452 of the INDIAN PENAL CODE and sentenced to undergo rigorous imprisonment for seven years with fine of Rs.2,000/- each and they are further sentenced to undergo R.I. for five years along with fine of Rs.1,000/- each under Section 452 of the I.P.C. with default stipulation. Both the sentences were directed to be run concurrently.

Factual Matrix

3. The factual matrix giving rise to this appeal is that on 30.11.1989 at about 04:00 PM, informant Arun Kumar Jain was in his shop at “Okni Road Wool House.“ Meanwhile, his father came to the shop and told that 5-6 persons entered the house, then the informant rushed towards his home and saw that present appellants and some others have entered in the house after breaking the lock. Upon protest, they assaulted the informant by hammer and bhujali. It is further alleged that informant’s father and brother were also assaulted by the accused persons and received injuries. Hearing commotion, local persons also gathered and informed the police. The injured were brought to Sadar Hospital for medical examination where Fardbeyan of the informant was recorded by the police.

4. On the basis of aforesaid information, Sadar P.S. Case No. 448/89 was registered for the offences under Sections 4 52 , 307, 323 read with Section 34 of the INDIAN PENAL CODE .

5. After completion of investigation, charge-sheet was submitted against the above appellants for the offences under Section 307 , 452, and 323 read with Section 34 of the INDIAN PENAL CODE . Further, the case was committed to the court of Sessions where the charges were framed and explained to them which were denied by the appellants and claimed to be tried.

6. After conclusion of trial, the impugned judgment and order of conviction and sentences were passed in which has been assailed in this appeal.

7. In order to prove the charges altogether eight witnesses were examined by the prosecution.

8. Apart from oral evidence of ocular witnesses, following documentary evidences were also adduced.

Exhibit 1 : Injury report of Rajesh Kumar Jain

Exhibit 2 : Injury Report of Arun Kumar Jain

Exhibit 3 : Injury report of Deep Chand Jain

Exhibit 4 : Fardbeyan of Arun Kumar Jain.

Exhibit 5 : Signaure of Soyeb Akhtar on Seizure list

Exhibit 6 : Seizure list.

Exhibit 7 : Formal F.I.R.

9. The case of defence is denial from the charges and further defence is that appellants are innocent who have not committed any offence and they have falsely been implicated in this case.

10. Being aggrieved with the impugned judgment of conviction and order of sentence dated 31.03.2006; this Criminal Appeal has been preferred on behalf of the appellants.

11.An interlocutory application was filed by the appellants for deletion of name of appellant no.3 (Nagi Singh @ Nageshwar Singh @ Nagendra Singh @ Nagi) as he had died on 08.03.2016, Hence, the appeal so far relates to the appellant no.3 stands abated.

12. Learned counsel for the appellants has argued that the injury report of the informant, his father and brother clearly shows that there is one grievous injury on the ribs and other injuries are simple in nature caused by hard and blunt substance. P.W.3, the brother of the