S. Acharya, J.
1. The appellant stands convicted under Section 307 IPC and has been sentenced thereunder to undergo R.I. for a period of seven years.
2. The prosecution case is that on 21.4.68 at about 5 P.M. Rusi Mohapatra P.W. 5 (the injured) was working in his garden at Mangalpur. At that time a bullock belonging to Jayakrushna Swain the father of the appellant, entered into the garden of P.W. 5 and ate away and damaged his Plantain trees P.W. 5 called Jayakrushna and asked him to take away his bullock from the garden. At that time there was a quarrel and hot exchange of words between P.W. 5 and Jayakrushna. Hearing this Quarrel the appellant came running from his house situated nearby with a Bhali and with the same dealt 6 to 7 blows on the head and legs of P.W. 5 causing bleeding injuries on his person. Accused Krupasindhu Swain, another son of Jayakrushna came to the spot with a lathi and assaulted P.W. 5 on his back. Some P.Ws. who witnessed the occurrence and other co-villagers who later came to that Place took P.W. 5 to the Mangalpur Primary Health Centre for his treatment P.W. 1, a nephew of P.W. 5 heard the entire incident from P.W. 5 on the next day morning when P.W. 5 regained senses and then P.W. 1 lodged information in the Pipli P.S. at 11 A.M. on 22.4.68. The officer-in-charge Pipli P.S. investigated into the case and submitted the charge-sheet in the case. After the commitment proceeding the appellant and his brother Krupasindhu were charged under Section 307/34 IPC in the trial court, and the appellant only has been convicted under Section 307/34 Indian Penal Code, and his brother krupasindhu has been convicted under Section 323 I.P.C. As his brother has not preferred any appeal against his aforesaid conviction, it is not necessary for me to deal with his case in this appeal.
3. The defence plea is a complete denial of the prosecution case. The appellant has also taken the plea of alibi.
4. The prosecution has examined 7 witnesses to Prove its case. P.W. 1 is the nephew of P.W. 5 who lodged the FIR P.W. 5 as stated above is the injured. P.W. 6 is the doctor. P.W. 7 is the I.O. who investigated into the case and P.Ws. 2. 3 and 4 are the eve witnesses to the occurrence.
5. There is ample evidence on record from which it is clear that there was enmity between the injured on the one hand and the accused persons and their father on the other. There were litigations both civil and criminal between the parties. The court on a proper appreciation of the evidence on record finds that on a previous occasion appellant Naran had attempted to assault P.W. 5.
6. The court, on a consideration of the evidence of the three eye witnesses (P.Ws. 2. 3 and 4) discarded the evidence of P.Ws. 3 and 4 as unreliable as both of them made prevaricating statements and resiled from their statements at the investigation stage. On a perusal of their evidence and the discussion of the same in the impugned judgment I also do not like to attach any importance to their evidence.
7. Leaving aside their evidence, there is yet the evidence of P.W. 2 who witnessed the occurrence from a close quarter. He was in his field which adjoins the garden of P.W. 5 where the occurrence took place. He went running from his field to the Place of occurrence when he heard somebody crying out 'Marigali' from inside P.W. 5's garden. When he went there he saw the appellant assaulting P.W. 5 with a Bhali on his head and accused Krupasindhu assaulting him with a lathi. The accused persons fled away from that place when they saw P.W. 2 and P.W. 4 coming towards the place of occurrence. P.W. 2 coming close saw P.W. 5 lying injured at the Place of occurrence, with bleeding injuries both on his head and leg. On seeing this he, P.W. 4 and others carried P.W. 5 te the Mangalpur Hospital where the doctor P.W. 6, attended to P.W. 5. I have carefully perused the evidence of P.W. 2. He has given a vivid account of all that he saw after he went to the place of occurrence. He has been cross-examined at length, and the material portion of his evidence could not at all be shaken in any manner. Nothing has been suggested to, much less elicited from this witness as to why he would perjure against the appellant so as to implicate him in an offence of this nature. His evidence read as a whole inspires confidence. He has corroborated the evidence of P.W. 5 in all material particulars, and I am satisfied that he has given a truthful version of the entire occurrence. The court below, on a careful consideration of his evidence, finds him (P.W. 2) to be a reliable and truthful witness and I fully agree with the court's view about this witness.
8. P.W. 6 who examined the injured in the Mangalpur primary Health Centre at 8.30 P.M. on the date of occurrence found 4 cut injuries, of different dimensions on the head of P.W. 5. The doctor has opined that the said cut injuries on the head could be caused by an instrument like a Bhali. Apart from the four cut injuries on tine head, the doctor also found two cut injuries on the right leg and one cut injury on the left lee of P.W. 5. He has also testified to the fact that the four cut injuries on the head were of a grievous nature and left permanent marks of disfiguration on the head and face of P.W. 5. The other cut injuries on his legs were of simple nature. He opined that all those injuries might have been caused by a sharp cutting weapon. The injuries on the person of P. W, 5 as found by P.W. 6 also lend corroboration to the evidence of P.Ws. 2 and 5.
9. On a perusal of the evidence of P.Ws. 2, 5 and 6. I have absolutely no hesitation to hold that it was the appellant who assaulted P.W. 5 on the date of occurrence with a Bhali.
10. Mr. Misra, the learned Counsel for the appellant, urged that even on the finding that it was the appellant who assaulted P.W. 5 and caused the above mentioned injuries on Ms person, it cannot be said on the evidence on record that the appellant had the intention of causing death or had the intention of causing any such bodily injury as would come within the other three clauses of Section 300 I.P.C. and so the appellant cannot be held guilty of an offence under Section 307, I.P.C.
The doctor in his report Ext. 3 has not stated anything about the nature and gravity of the cut injuries sustained by P.W. 5. In his evidence in court he has of course stated that the head injuries were of a grievous nature. All the injuries however were of small dimensions and were certainly not of a very serious nature so as to endanger life. From the dimensions and nature of the injuries it is difficult to say that the appellant while inflicting the blows on P.W. 5 had either the intention to cause the death of P.W. 5 or had the intention or knowledge to cause any such bodily injury as would come within the other three clauses of Section 300 I.P.C.
P.W. 5 was cured within 10 days-by the treatment of P.W. 6 in the Primary Health Centre. If the condition of P.W. 5 would have been very bad or alarming, P.W. 6, a young doctor with only six months of experience in service and the scanty resources available at his disposal in the Primary Health Centre, would not have taken the risk of keeping him in his hospital for treatment.
Moreover from the prosecution evidence itself it is seen that two or three persons including the appellant assaulted P.W. 5 when he was alone, and there was no resistance or fear of retaliation from P.W. 5 or any hindrance or obstruction from any other quarter. So if the appellant really intended to cause the death of P.W. 5 he could have dealt fatal blows on P.W. 5 and there was nothing, for the time being, to deter him from that direction.
From all the above it is difficult to say that the appellant, by inflicting the blows on P.W. 5 on the date of occurrence, attempted to murder him on that occasion.
11. In Sarju Prasad's case reported in AIR 1965 SC 843 their Lordships of the Supreme Court have held:.the burden is still upon the prosecution to establish that the intention, of the appellant in causing the particular injury to Shankar Prasad was of any of the three kinds referred to in Section 300 I.P.C. For, unless the Prosecution discharges the burden, the offence under Section 307 I.P.C. cannot possibly be brought home to the appellant.
12. On the above considerations it is difficult to say on the facts and circumstances of this case that the offence under Section 307 I.P.C. is squarely brought home against the appellant. But on the facts established in this case I am satisfied that an offence under Section 326 I.P.C. is clearly made out against the appellant.
Accordingly the conviction of the appellant under Section 307 I.P.C. and the sentence passed thereunder are set aside, and instead he is convicted under Section 326, I.P.C. and is sentenced thereunder to undergo R.I. for three years.
The appeal accordingly is partly allowed.