Intent to kill not established in sudden quarrel; conviction modified from S. 307 to S. 324 IPC.

1. This appeal is directed against impugned judgment of conviction and order of sentence dated 29-4-98 passed in Sessions Trial No.167/97 by the 2nd Additional Sessions Judge, Raigarh whereby the appellant has been held guilty of commission of offence as described below:

2. Prosecution story, as unfolded from the records of the case is that on 8-6-97, the appellant and the victim - Ramnath (PW 1), who are brothers, were sitting in the veranda and consuming liquor. During that time, certain words were uttered by the victim. It is said that there were abuses hurled and then the appellant picked up axe and gave a blow on the neck of the victim resulting in incised wound. The incident was reported to the police. Victim - Ramnath (PW 1) was sent for medical examination and treatment. He was examined and treated by Dr. Basant Singh (PW 6), FIR was lodged in the police station by Umesh Singh (PW 2), son of the victim. On the next day, i.e. on 9-6-97, offence under S.307, IPC was registered against the appellant. Upon completion of investigation, charge - sheet was filed. The appellant was charged of commission of offence under S.307, IPC which he denied having committed. So, he was put to trial.

3. In order to prove its case, the prosecution examined, in all, seven witnesses and thereafter, the appellant was examined under S.313, Cr. P.C. in respect of the incriminating circumstances appearing against him in the evidence led by the prosecution. No defence witness was examined.

4. Learned trial Court, mainly relying upon the ocular testimony of victim - Ramnath (PW 1), nature of injury, weapon used for commission of offence held the appellant guilty of commission of offence under S.307, IPC and sentenced as described above, which has given rise to this appeal.

5. Assailing correctness and validity of impugned judgment of conviction and sentence, learned counsel for the appellant argued that no case of commission of offence under S.307, IPC is made out as the circumstances of the case, back ground in which incident happened, at the most, it could be a case of assault without any premeditation, in a sudden heat of passion, upon sudden quarrel. She submits that the appellant was the brother of the victim and both of them were sitting together in the veranda and consuming liquor which shows that there existed cordial relation between them and because of some words uttered, suddenly in a heat of passion injury was inflicted by the appellant. Though the injury was caused in the neck, injury was not likely to cause death in the absence of treatment even though it was grievous in nature. The victim (PW 1) has stated that he was discharged from the hospital in two days. She further submits that the incident happened in the evening on 8-6-97 whereas the victim was taken for treatment to the doctor at 2.45 p.m. next day, which by itself shows that the injury was not serious. Therefore, opinion of the doctor is not reliable. It is next contended that the incident happened in the house between the two brothers, it being a 20 years old incident and the appellant, at present is aged about 73 years, the impugned judgment of conviction may be set aside or in the alternative, altered to the period already undergone as commission of offence under S.304, IPC only. In support of his contention, learned counsel for the appellant relied upon Ramesh v. State of U.P. , 1992 (1) SCC 318 : AIR 1992 SC 664 ; Madan Sahu v. State of C. G., 2013 (1) CGLJ 9 and Thakur Ram v. State of M. P. (now C.G.), 2013 (4) CGLJ 299.

6. Per contra, learned counsel for the State supports the judgment of conviction and sentence and submitted that relevant attending circum