IMPORTANT POINT
The court clarified that for a conviction under section 307 IPC, there must be clear evidence of intent to kill, which was not established in this case.

JUDGMENT :

The present appeal is filed against the judgment of conviction and sentence dated 5-4-2000 passed by the learned First Additional Session Judge, District Dewas (M. P.) in ST No. 192/1992, whereby, the appellant has been convicted under section 307 of the Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’) and sentenced to undergo 05 years R.I. with fine of Rs. 1000/-.

2. As per the prosecution case, on 15-3-1998 at about 02 PM, the complainant Bhagwansingh with his maternal uncle Manishankar reached his field where one Jivan Gari was grazing his goats, he interrupted for not grazing the same and took the stick of Jivan. Due to the said hot talk, at about 11 PM in the night, Bandi @ Narendra Singh, Badri Gari, Jivan Gari with other co-accused persons reached the house of complainant, Manishankar opened the door. At that time, Dinesh Patel, maternal uncle of Bhagwansingh came there, during the scuffle, an unknown person assaulted with Katar on the stomach of Dinesh Patel, thereafter, the appellant along with other co-accused fled away from the spot. On the same date, the complainant/injured was taken to the hospital at Ujjain. Thereafter, the police recorded the statements of the witnesses and registered the FIR under sections 147, 148, 149 and 307 of Indian Penal Code. After completion of investigation, charge-sheet was filed. Thereafter, the learned trial Court has framed charges against the appellant under section 147 and 307 of Indian Penal Code. Later on, the matter was committed to the Court of Session.

3. In support of the case, the prosecution has examined as many as 14 witnesses namely Omprakash (PW-1), Chagganlal (PW-2), Suresh (PW-3), Ramnarayan (PW-4), Dinesh Patel (PW-5), Manishankar (PW-6), Bhagwansingh (PW-7), Bhahadursingh (PW-8), Kailash (PW-9), Vikramsingh (PW-10), Yashwantsingh (PW-11), S. P. Singh, Sub-Inspector (PW-12), Arvindra Kumar (PW-13), Dr. P. N. Verma (PW-14). No witness has been adduced by the appellant in his defence.

4. The learned trial Court on appreciation of the evidence and arguments adduced by the parties, finally concluded the case and convicted the appellant for the commission of the offence punishable under section 307 of Indian Penal Code, vide the impugned judgment.

5. Learned counsel for the appellant, being crestfallen by the aforesaid finding of the trial Court, submitted that on the same set of evidence, the learned trial Court has acquitted five other co-accused persons. Out of 12 witnesses of the prosecution seven witnesses have turned hostile and have not supported the case of prosecution. Further, there is no identification was conducted in the matter by the prosecution. It is also submitted that in the FIR, the complainant has not named the present appellant but in the statements recorded before the trial Court, the complainant has named the present appellant that he has caused the injury. Manishankar (PW-6) has also not named the person who has caused the injury and he simply stated that out of the accused persons, one has caused the injury to the injured with Katar. In his statements, the injured had clearly stated in his examination-in-chief that Bhagwan Singh has caused injury with Katar, therefore, there are material contradictions and omissions in the statements of the witnesses. The statement of witness injured Dinesh Patel was recorded on 15-7-1998 whereas the incident happened on 14-3-1998, therefore, his statements cannot be relief upon being afterthought.

6. Further, learned counsel for the appellant submits that since there is a single blow in the matter, hence, the offence under section 307 of Indian Penal Code cannot be made out against the appellant and if the case of the prosecution is taken as it is, the case of the prosecution would not travel more the offences under section 324 and 326 of Indian Penal Code. The appellant has already suffered months of his incarceration out of the five years.

7. Alternatively, counsel for the appellant has further a