Intent is crucial in determining the severity of charges under IPC; relevant evidence must reflect intention to kill for conviction under attempted murder.

JUDGMENT :

G.Satapathy, J.

1. This criminal appeal impugns the judgment passed on 30.01.1995 by the learned Sessions Judge, Sambalpur in S.T. Case No.267 of 1994 convicting the appellant for offence under Section 307 of IPC and sentencing him to undergo Rigorous Imprisonment (RI) for a period of five years.

2. An overview of facts involved in this case were on 12.10.1994 at about 9.45 PM, PW2 while returning from a cloth shop after making some purchase had a collision with the appellant at Baidyanath Chowk and on this, when PW2 asked the appellant to walk properly on the road, the appellant being annoyed, went to a nearby place and brought out a sword and chased PW2 to assault, but PW2(injured) accordingly ran towards Kansaripada with appellant following behind him by holding a sword, however, the appellant could be successful in reaching near PW2 in front of the residence of Headmaster, Town High School and dealt successive blows on the head and back of PW2 by means of the sword resulting in bleeding injuries on his persons. This incident was witnessed by PW1-Milan Maharana, PW4-Ashok Nepak and PW-5-Jagadish Mahapatra and out of whom, PW1 had unsuccessfully tried to rescue PW2 ending only with receiving injury on his right index finger. Immediate after the occurrence, PWs.1 and 2 went to the police station and PW2 orally reported the incident and, thereafter, both of them receive treatment at a hospital.

3. On the same date i.e. on 12.10.1994 at about 10.10 PM, PW2, however, lodged FIR against the appellant, which paved the way for registration of Sambalpur Town P.S. Case No.354 of 1994, which culminated in submission of charge-sheet against the appellant for offence under Sections 307 /324 of IPC read with Section 27 of Arms Act, but the learned trial Court proceeded against the appellant in the trial by framing charge under Section 307 /324 of without assigning any reason for not proceeding against the appellant for offence under of Arms Act. This was how the trial commenced in the case.

4. In support of its case, the prosecution examined altogether 6 witnesses vide PWs.1 to 6 and relied upon five documents under Ext.1 to 5 as against no evidence whatsoever by the defence in support of its plea of false implication and innocent of the offence.

5. After appreciating the evidence on record upon hearing the parties, the learned the learned trial Court by the impugned judgment, convicted the appellant for commission of offence U/S.307 of IPC and sentenced him to the punishment indicated (supra). The learned trial Court, however, considered the charge under Section 324 of against the appellant as an alternative charge and accordingly, appeared to have ignored to consider such charge against the appellant after his conviction for higher offence U/S.307 of . It appears from the impugned judgment that the learned trial Court had convicted the appellant by mainly relying upon the evidence of eye witnesses PWs.1, 2 and 5.

6. In this case, PW2 being main injured witness-cum-informant, his evidence requires to be scrutinized first in the sequence. The evidence of PW2 transpired that on 12.10.1994 at about 9.30 PM, he had a collision with the appellant at Baidyanath Crossing and, accordingly, cautioned him to walk properly on the road, but the appellant brought out a sword and chased to assault him and the appellant accordingly, dealt sword blows on his head and back, as a result he sustained bleeding injuries on his person. It was his further evidence that when PW1 intervened to rescue him, one of the sword blows made by the