Purastam Tripathy and Purusattam Puria vs State of Orissa

A. Pasayat, J.—Challenge in this appeal is to the conviction as recorded by the learned Asst. Sessions Judge, Kandrapaga for offence punishable u/s 307 of the Indian Penal Code, 1860 (in short, ''IPC'') and consequently sentence of eight years rigorous imprisonment, and fine of Rs. 1000/-, with default sentence of one year rigorous imprisonment.

Purusottam Tripathy (hereinafter referred to be the ''accused'') faced trial for having caused serious Adjuries on Digembar Rath (hereinafter referred to as the ''victim'') with intention to take away his life.

Background facts as pertrayed by prosecution in essence are as follows:

On 3-1-1992 while the victim was going towards his shop in a bicycle suddenly the accused assaulted him with a sharp cutting weapon on his left leg, resulting in serious injuries. Information was lodged at Aul Police Station by Ombendra Kumar Rath (P. W. 1), a relative of the victim, investigation was undertaken and on completion thereof, charge-sheet was submitted. The accused pleaded his innosense and false implication.

Prosecution examined thirteen witnesses to further is version while accused examined one to prove his innosence. Placing reliance on the evidence of the victim (P. W. 1), informant (P. W. 10) and Doctor (P. W. 12), learned Asst. Sessions Judge found the accused guilty and convicted and sentenced him as aforesaid.

In support of appeal, it has been strenously urged that evidence of the witnesses do not establish guilt of the accused. On the contrary, they show admitted strained relationship between the secused and victim, providing foundation for false implication. It is further submitted that since victim has accepted strained relationship with the accused, his evidence should have been discarded. Additionally it is submitted that in view of evidence of Doctor, a case u/s 307, IPC is ruled out. Lastly it is urged that sentence as awarded is extremely harsh, Mrs. S. Jena learned counsel for State on the other hand supported the conviction and sentence.

When there is admitted animosity between the victim and accused, Court has to carefully weigh the evidence and find out whether there has been an attempt to falsely implicate the accused. This becomes necessary because in normal course witnesses more particularly relatives, would not falsely implicate an innocent persons and shield the real culprit. If on a careful analysis and scrutiy the Court finds that evidence is credible and cogent, it can act upon it to record conviction. Enmity is a double edged aword. It can be the basis for false implication and at the same time can provide foundation for the crime. In the case at hand, evidence of P. W. 1 has been carefully analysed by learned trial Judge, and it has been accepted, with the conclusion that it has ring of truth. On going through the evidence of P.W. 1, which was elaborately placed before me by learned counsel for appellant, I find no reason to make a departure from the conclusion of learned trial Judge that evidence is credible. So far as plea that on the basis of evidence of victim alone conviction cannot be recorded, it has only to be noticed to be rejected. There is no substance in the plea that evidence of solitary evidence is not sufficient for conviction. Answer is in Section 134 of the Indian Evidence Act, 1872 (in short, ''Evidence Act'') which provides that no fixed number of witnesses shall in any case be required for proof of any fact. The court below has rightly relied upon the evidence of victim to find the accused to be the author of the crime which led to his trial.

It has been urged that Section 307, IPC has no application to the facts of the case. Section 307 deals with an attempt to murder. It provides that whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is provided earlier in the Section. An attempt to commit a crime is an act done with intent to commit that crime, and would constitute its actual commission, if it were not interrupted. Intention or knowledge which is necessary to constitute murder may exist combined with on act which falls short of the complete commission of that offence. The act or omission, although it does not cause death, is carried to such a length as, at the time of carrying it to that langth, the offender considers sufficient to cause death. If there has been not merely a commencement of an execution of the purpose, but something little short of a complete execution, the consumation being hindered by circumstances independent of the will of the author, Section 307, IPC has application. To justify a conviction under the said provision, it is not essential that bodily injury capable of causing death should have been inflicted. Although nature of injury actually caused may often give considerable assistance in coming to a finding as to intention of the accused, such intention may also be deduced from other circumstance and factors and may even in some cases be ascertained without any reference at all to the actual wounds. For the purpose of constituting on offence u/s 307, two ingredients are required, firstly, evil intent or knowledge, and secondly, an act done. It depends upon the facts and circumstances of each case whether the accused had the intention to cause death or know it in the circumstances that his act was going to cause death. The nature of the weapon used, the intention expressed by the accused at the time of the act, the motive for commission of the offence, the nature and size of the injuries, the parts of the body of the victim selected for causing the injuries and the severity of the blow or blows are important factors that may be taken into consideration in coming to a finding whether in a particular case the accused can be convicted of an attempted murder. There must be some overt act combined with evidence of mens rea. In Section 307, IPC the word "intention or knowledge" are used. Intention or knowledge are alternative ingredients of both Sections 299 and 309, IPC. Hence an offence u/s 307 can be committed where there is no intention proved but only knowledge that the act is so imminently dangerous that it must in all probability cause death. Even if the accused did not have a deliberate intention, if he must have had the knowledge that his act was likely lo cause death, Section 307 applies. Intetion and knowledge are a man''s state of mind; direct evidence thereof except through his own confession cannot be hand; and apart from confession cannot be had; and apart from confession they can be proved only by circumstantial evidence. In other words, they are matters for inference from all the circumstances of the case. Word "intention" is used in IPC in the sense that something is intentionally done, if it is done deliberately or purposely, in other words, is a willed though not necessarily is a desired result or a result which is the purpose of the deed. Like most words the word ''intention'' is capable of different shedes of meaning. In the IPC it is used in relation to the consequences of an act, the effect caused thereby, not in relation to the act itself the voluntariness required to constitute an act is implied by that very word. A person commits the offence of "attempt to commit a particular offence" when (i) he intends to commit that particular ofence, and (ii) he having made preparations and with the intention to commit the offence, does on act owards its commission; such on act need not be ponultimate act towards the commission of that offence; but must be an act during the course of committing that offence. (See Abhayanand Mishra Vs. The State of Bihar, and Om Parkash Vs. The State of Punjab, ). In an attempt, every element of the thing attempted is present except the fact of success. Evidence of P.W. 1, the victim clearly shows that accused had aimed at his neck. Considerable force that was used in causing injury is apparent from the evidence of Doctor (P. W. 12). In the aforesaid background, there is no manner of doubt that Section 307 has application to the facts of the present case.

Residual question to be adjudicated is sentence. Over a small matter like charging of price of certain coconuts, there was not exchange of words prior to the incident. Most generated by such exchange of words had not subsided and accused was laying in wait with a sharp cutting weapon to teach the victim a lesson, Considering the background of controversy and the young age of the accused, in my considered opinion, custodial sentences of 3 years and a fine of Rs. 1000/- with default sentence of six months rigorous imprisonment would meet the ends of justice. In case fine is deposited, the same shall be paid to the victim (P. W. 1).

The appeal is dismissed subject to modification of sentence.