Ram Labhaya, J.
1. Ambaram Haloi, appellant, was found guilty under Section 307, I.P.C., and was sentenced to 10 years' R.I. The trial was with the aid of a Jury.
2. Stated briefly the prosecution case was that Titaram, complainant, and Ambaram, accused, belonged to two rival factions, of the village. There was a fight between the two parties a few months before the occurrence in question. In this light one man from each side was killed. The case arising out o that transaction was pending at the time of the trial in this case. It is said that Ambaram, accused, was not present at the time of that fight. He came back to the village some 15 days before the occurrence in question and since then was threatening to take revenge.
3. On the 4th October 1950, Titaram, after taking his evening meal, went out of his house. He was going to the house of Prabin. The house of Prabin was at a short distance. He was carrying a 'Saki' (lamp) in his hand. He sat down to pass urine behind the house of a relation of his. This house was at one end of his own court-yard. Just when he was rising, he was struck with a 'dao' on his neck from behind. He turned round & saw Ambaram with a 'dao' and two others, Rajendra Haloi and Biseswar Haloi. (These two were also tried for abetment under Section 307/114, I.P.C., and were acquitted.) Titaram raised the alarm. He shouted that Ambaram had injured him with a 'dao'. He was about to fall down when P.Ws. Dharani and Sarat, both his relatives, came and lent him support. He felt dazed. Others also collected. He was then taken to a distance of about 10 or 12 cubits to the court-yard of Prabin as the place where the occurrence had taken place was not open. Rajat, Britti, Jatish, Kamini and other neighbours also arrived there.
Titaram told all these persons that Ambaram had caused him the injury on the neck while Rajendra and Biseswar stood at a little distance. The assault on the complainant occurred at about 8 P.W. The people who gathered there soon after the occurrence included Rameswar Gaonbura, Dijen Mandal and Rati Kanungo. Pratap, the neighbouring doctor, was also called at about 10 P.M. The complainant was then taken to Nalbari Police Station, about 9 miles away from the scene of occurrence. He lodged an 'ejahar' at 7.30 A.M. the next day. He was sent to the dispensary where he had to stay for 28 days. His condition was found to be serious in the beginning and apprehending that he might die, the Police had his statement recorded by the Sub-Deputy Magistrate at Nalbari.
4. Ambaram denied the charge and pleaded not guilty. His case was that he did not assault the complainant as alleged. Titaram, it was suggested, was a man of bad character and may have been Injured by someone while he was on his way to the house of Prabin where he was going to commit adultery.
5. Britti Haloi and Sarat Haloi are the two witnesses who are alleged to have seen the occurrence. Rajat P.W., a brother of Sarat, deposed that he had seen Ambaram running away'. Dharani's statement at the trial was that he had heard Titaram telling the people that Ambaram had Injured him. Jotish P.W. also overheard Titaram telling the people that Ambaram had caused him an injury on the neck.
6. Rameswar Goanbura, Dijen Mandal, Rati Kanungo and Pratap, the doctor, were not examined. Similarly, Prabin to whose house the complainant was going at the time of the assault on him, has not been examined. Prabin's mother also lived with him. The learned Counsel for the appellant has contended first that the trial stands vitiated on the ground that the provisions contained in Section 342, Criminal P.C., have not been complied with and the illegality in this respect has caused prejudice. His second contention is that the Jury has been misdirected on two points and these misdirection’s have led to an erroneous verdict.
7. The first contention, in our opinion, has no force. At the trial the learned Additional Sessions Judge asked the accused first to state whether he had attempted to cause the death of Titaram, complainant, by dealing a 'khukri' blow. His answer was that he had not. He was then asked to state if he had threatened to kill Titaram as his brother had been killed in the previous fight by the partisans of the complainant. This question was also answered in the negative. The accused added that he was innocent, had nothing to say and had no evidence to adduce. The learned Counsel contends that the statement does not comply with the requirements of Section 342, Criminal P.C. He urges relying on Tara Singh v. State : 2SCR729 , that 'the importance of observing faithfully and fairly the provisions of Section 342 cannot he too strongly stressed.' He has also pointed out that according to that decision the accused must be questioned separately about each material circumstance which is intended to be used against him.
The whole object of the section is to offer the accused a fair and proper opportunity of explaining the circumstances which appear against him. This authority, however, is of no assistance to the appellant. The learned Counsel has not been able to show that any important or material circumstance, which was utilized against the accused, was not put to him. The whole case against the accused was that he was uttering threats against the complainant's party before the occurrence and that he himself caused the injury to the complainant with a 'dao.' Both these circumstances were put to him. The learned Counsel has been confusing the words 'material circumstance' used by their Lordships of the Supreme Court with the statement of the witnesses. He has argued that the statements of the witnesses were not put to the accused.
All that Section 342, Criminal P.C., requires is that the Court may, at any stage of any inquiry or trial without previously warning the accused, put such questions to him as the Court considers necessary in order to enable him to explain the circumstances appearing in the evidence against him. He may also be questioned generally on the case. The examination in this case did not omit to bring any material circumstance to the notice of the accused. The learned Counsel had to show that some material circumstance which the accused was not asked to explain was utilized against him. He has not been able to refer to any such circumstance. Besides, their Lordships of the Supreme Court also laid down in the same case that:
every error or omission in this behalf does not necessarily vitiate a trial because the errors of this type fall within the category of curable irregularities. Therefore, the question in each case depends upon the degree of the error and upon whether prejudice has been occasioned or is likely to have been occasioned.
The learned Counsel has not addressed us at all on this aspect of the matter and he has not tried to show that any prejudice has been caused or was likely to have been caused by any omission on the part of the learned Judge when examining the accused. This contention, therefore, cannot prevail.
8. The second contention raised is that the learned Judge failed to direct the jury that they could draw an inference adverse to the prosecution from the fact that Prabin and his mother had not been examined as prosecution witnesses. This emission is characterised as a misdirection and reliance has been placed on Tenaram Mondsl v. Emperor 25 Cal WN 142; Nababali v. Emperor 34 Cal WN 151 and Tenaram v. Emperor 33 Cal LJ 180.
9. In Tenaram Mondal v. Emperor 25 Cal WN 142, it was laid down that if certain material witnesses named in the F.I.R., and also in the evidence were not examined at the trial even though they were available and the Judge did not tell the jury that they could draw an inference not favourable to the prosecution and in summing up the evidence the Judge also omitted to draw the attention of the jury to the discrepancies of the evidence of the principal witnesses for the prosecution, the omission to place before the jury the matters stated above constitute material misdirection.
10. The case is distinguishable. In this case it was the cumulative effect of two omissions which was held to constitute misdirection. In the case before us, the learned Counsel has not urged that there was any omission on the part of the Judge when summing up evidence to place before the Jury discrepancies, if there were any.
11. In Nababali v. Emperor 34 Cal WN 1151, it was laid down that there should be a substantive direction in the Judge's charge to the jury as to the view of the prosecution which the jury are entitled to adopt, if they are not satisfied with the explanation offered by the prosecution for the absence of a witness who is material and omission to give such direction amounts to misdirection.
12. The view taken in this case receives support from the decision reported in Tenaram Mondal V. Emperor 33 Cal LJ 180.
13. The last two cases do support the view that the omission on the part of a Judge to tell the jury that they may draw an inference adverse to the prosecution from the fact that certain material witnesses were not examined particularly when they were named in the F.I.R., and also in the evidence, constituted a misdirection. The learned Government advocate does not dispute the statement of the law contained in these cases. His answer to the contention is that Prabin and his mother were not material witnesses in any sense and that in any case the learned Judge did give the necessary direction to the jury.
14. Prabin and his mother admittedly are not the eye witnesses of the occurrence. Their names were not mentioned in the F.I.R., as persons who saw the occurrence or who arrived at the scene of occurrence immediately afterwards. At the trial, P.W. 1., the complainant, stated that he was going to the house of Prabin to sleep there and he sat down to pass urine at a place near Sarat's house. He was just rising when a 'dao' blow was inflicted on the back of his neck. He raised alarm. Rajat Jotish, Kamini and others arrived and he informed them about his assailant. Even in his examination-in-chief, he did not state that Prabin or his mother came to the scene of occurrence. In cross-examination he stated that Prabin's mother was in the house at the time of the occurrence but Prabin was away and he saw him that night about half an hour after the occurrence. He added that Prabin was a school student. He denied the suggestion that he was going to Prabin's house in order to commit adultery. Prabin, according to him, was his uncle's son and his mother was his 'khuri.' P.W. 3 deposed at the trial that Prabin came out of the house when the complainant was removed to the courtyard. Be helped in rendering first aid.
The learned Advocate for the appellant has relied only on these two statements for showing that Prabin and his mother were material witnesses. It would appear from these statements that both Prabin and his mother could not be regarded as material witnesses from the view point of the prosecution. Both were closely related to the complainant. They did not come to the scene of occurrence. When complainant was removed to 'the courtyard of Prabin, he came out but it is not the prosecution case that at that time the complainant informed him about his assailant. Prabin is also a school student, Prabin and his mother, therefore, could not be regarded as material witnesses at all. They had not seen or heard anything material to the prosecution case. In these circumstances there was no need for the learned Judge to tell the jury that they could draw an inference unfavourable to the prosecution from the fact that it had omitted to examine them. Authorities on which the learned Advocate has based his contention do not apply to the facts of this case. They axe clearly distinguishable.
15. It may be noted, however, that the suggestion put forward from the side of the accused at the trial was that Titaram was going to the house of Prabin with a view to committing adultery. Illicit connection with Prabin's mother was suggested. The idea behind the suggestion was that the assault on the complainant could have been committed by someone else. Immorality was attributed to him with a view to bringing out the possibility of some one else being the culprit. This suggestion was made at the trial. The prosecution could not anticipate any such defence, nor could they examine witnesses to prove its falsity or worthlessness.
It is also clear that no inference adverse to the prosecution could be drawn from their failure to examine Prabin and his mother for it was not the prosecution case that any relevant fact which formed part of the prosecution case was within their knowledge. Where a material witness is kept is back, the presumption that may be made is that if he had been examined he would not have supported the case put forward. Such a presumption was not possible in this case from the non-examination of Prabin and his mother. The authorities relied on do not support the contention which in effect is that Prabin and his mother should have been examined with a view to discovering if there was any illicit connection between the complainant and Prabin's mother. It may not, therefore, be laid down as a matter of law that it was obligatory on the part of the prosecution to examine these witnesses for the purpose that the defence had in view. The omission to examine these witnesses, therefore, was of no importance. The facts are similar to those in the case reported in 'HACHANI KHAN v. EMPEROR' 34 Cal WN 390.
16. In that case the witness not examined was 'an old man and there was nothing to show that he ever came out of the covered portion of the boat, or that he saw anything of the dacoity. It was held that the omission to give the jury the direction that an inference adverse to the prosecution could have been drawn from his non-examination was of no importance.
17. It is also noteworthy that the omission on the part of the prosecution to examine Prabin and his mother was referred to by the learned Judge in his charge. This reference was in the following terms:
It is worth mentioning here that you have neither the evidence of Prabin nor his mother, in support of the prosecution case that Titaram openly went to sleep at Prabin's, house leaving the shelter of parents and his wife at his house.
18. Caution has been given to the jury even on this point. The learned Judge stopped short after giving the caution. He did not direct the jury to draw any adverse inference as the fact that he was going there was not denied. In fact, the defence suggestion was that the visit was prompted by an illicit purpose. So far as that purpose was concerned, no presumption was justified. It was a matter which the accused had to prove. It cannot be said, in these circumstances, that the verdict of the jury has been erroneous by reason of any misdirection on the part of the learned Judge; nor are we prepared to hold that any prejudice has been caused to the appellant In the circumstances of this case by non-examination of Prabin and his mother.
19. The second misdirection which has been complained of is that the learned Judge did not place before the jury the possibility of the offence being or falling under Section 326, I.P.C. The learned Counsel has not placed any authority in support of his contention. He has not shown us that in a case like this it would be obligatory on the part of the Judge to place the ingredients of a lesser offence that may possibly be said to have been committed even if it was not suggested at the trial that the facts, if taken as proved, would justify a conviction for an offence of lesser gravity. It would have been a prudent and a much sober course to follow. But we do not think that appellant has been prejudiced even by this omission as in our opinion the facts brought out do justify a conviction under Section 307, I.P.C. Where any act is done with, such intention or knowledge and under such circumstances that, if by that act death is caused the person doing that act would be guilty of murder, the case will be covered by Section 307, I.P.C., even if death is averted or does not follow. As Digby, J. held in Provincial Govt. C.P. & Berar v. Abdul Rahman AIR 1943 Nag 145:
All that is necessary to establish is the intention or knowledge with which the act is done, and if once that intention or knowledge is established the nature of the act is immaterial. The crux of every case apart from cases resting on knowledge is thus the intention of the assailant.
20. In this case there is evidence that the accused was threatening to kill someone from complainant's party. P.W. 1 deposed as follows 'Amba threatened to cut one of our party.' This was said in his hearing. The allegation, therefore, was that he was out to kill some one from the complainant's party. The injury caused was by a 'khukri.' The wound was caused on the right side and back of the neck. It was an oblique incised wound 8' x 1' x 3.' The muscles, blood vessels and nerves were completely cut. The spinout process of the 7th cervical vertebra was partially cut. According to the medical opinion the injury was grievous and the patient's condition on admission to the hospital was extremely serious. It was found necessary to have his dying declaration recorded immediately on his arrival at the hospital.
21. Quite apart from the intention of the accused it should follow from the weapon used, the Vital part of the body on which the injury was caused and the nature of the injury that the accused had knowledge that if death was caused he would be guilty of murder.
22. The learned Counsel has argued that a conviction under Section 326, I.P.C., would be more appropriate. He concedes that the injury was dangerous to life. We are not prepared to hold that in the circumstances of the case an offence under Section 307, I.P.C., was not made out. There is, therefore, no question of any misdirection on the point.
23. The last contention raised by the learned Counsel was that the sentence was unduly severe. We think there is force in this contention. The accused has been sentenced to 10 years' R.I. The sentence is excessive. A substantial reduction is called for. We think a sentence of 5 years' R.I., would meet the needs of justice and we reduce it accordingly.
24. The appeal is allowed to the extent indicated above.
25. I agree with the result.