Insufficient evidence of intent to kill led to conviction under Section 325 instead of Section 307, emphasizing that mere injury does not establish the necessary mens rea for attempt to murder.

JUDGMENT :

SIBO SANKAR MISHRA, J.

The present Criminal Appeal, filed by the sole appellant- Puri @ Purusottam Behera under Sections 374(2) of the Cr.P.C., is directed against the judgment and order dated 18.01.1994 passed by the learned Assistant Sessions Judge, Deogarh in S.T. Case No.224/12 of 1993, whereby the appellant has been convicted for the offence under Section 307 of I.P.C. and on that count, he has been sentenced to undergo R.I. for seven years and to pay a fine of Rs.1,000/-, in default, to undergo R.I. for six months.

2. Heard Mr. Subham Sharma, learned counsel appearing for the appellant and Mr. Ashok Kumar Apat, learned Additional Government Advocate for the State.

3. The prosecution case, in brief, is that one Kuber Behera of village Bampali under Barkot Police Station, District Deogarh, had four sons. The accused–appellant is his eldest son. After marriage, the accused resided separately with his wife. The second son lived in the house of his father-in-law. The third son, Tikei @ Khirodra Behera, after the death of his first wife, had remarried and was residing with his parents. The youngest son, Jhanaketan, being unmarried, also resided with the parents in the ancestral house.

It is alleged that Kuber Behera had not partitioned any land or homestead property among his sons. The accused was persistently quarrelling with his parents, demanding his share of land. His mother, Maharagi, who was managing the affairs of the household, firmly refused to make any allotment during her lifetime, which allegedly caused the accused to bear a grudge against her. On an earlier occasion, when the accused attempted to forcibly take possession of a portion of his father's land, his mother is said to have resisted him.

In the year 1993, the accused had sown groundnut crops on two 'kita' of land in Khalimunda Chhack. In the adjacent field, his father had also sown groundnut. A pit located near these fields served as a source of irrigation. The prosecution asserts that the accused prevented his parents from drawing water from this pit. On 5.4.1993, notwithstanding his objection, Maharagi and Tikei irrigated their field from the pit. On the following morning, 6.4.1993, upon discovering this, the accused became enraged, went near his parents' house and abused them, allegedly declaring that he would kill them if they continued to use water from the pit.

On the evening of 6.4.1993, Kuber had gone to guard his watermelon field; Tikei had gone to witness “Dandanacha” in another village; and the youngest son, Jhanaketan, was also away participating in “Dandanacha.” Thus, only Sumati (P.W.1), the accused's sister-in-law, and Maharagi (the deceased) were present in the house along with the infant child of P.W.1. After dinner, P.W.1 retired to her room while Maharagi slept on a cot in the verandah. A lantern was kept burning throughout the night.

At about 10:00 p.m., when P.W.1 awoke to breastfeed her infant, she heard unusual sounds and the groans of her mother-in-law. Rushing to the verandah, she allegedly witnessed, in the light of the lantern, the accused inflicting axe blows on Maharagi. P.W.1 states that she saw the accused deliver another blow on Maharagi's neck, causing profuse bleeding, after which he fled. Believing her mother-in-law to be dead, P.W.1 raised an alarm. Her uncle-in-law and aunt-in-law, who resided in the adjoining house, along with other villagers, arrived immediately. P.W.1 informed them that the accused had assaulted Maharagi with an axe.

On the basis of such allegation, the F.I.R. was lodged on the same night. The police arrived at