Mamin Miah vs State Of Tripura

S.G. Chattopadhyay, J

[1] This appeal under Section 374(2) Cr.P.C. is directed against the judgment and order of conviction dated 21.06.2018 and sentence dated 22.06.2018 passed by the learned Additional Sessions Judge of West Tripura Judicial District at Sonamura in case number ST (T-I) 21 of 2016 whereby accused, Mamin Miah (appellant hereinafter) was convicted for offence punishable under sections 326 and 307 of the Indian Penal Code (IPC hereinafter) and sentenced to rigorous imprisonment for 10 [ten] years and a fine of Rs.10,000/- with default stipulation for each of the offences and it was ordered that both the sentences would run concurrently.

[2] Brief facts leading to the rise of the present appeal are that Hosneyara Begam, wife of Majil Haque of Srimantapur, Sonamura lodged a written complaint scribed by Sri Chandan Laskar of Sonamura with the Officer-in-Charge of Sonamura police station on 14.08.2016 at about 10.13 PM alleging, inter alia, that at about 6 O'clock in the morning, her husband Majil Haque, a whole seller of fish, was doing paper work pertaining to cash on his elevated seat in the fish market. At that time, the appellant, a fish seller, following the advice of one Tapan Das attacked him with a dao (a sharp edged weapon) and gave a blow on his back and when her husband raised his left hand to ward off the blow, he received serious injury in his wrist. Her injured husband collapsed on earth. Appellant Mamin Miah and Tapan Das fled away from the market. The injured was then taken to Sonamura Rural Hospital in an auto rickshaw bearing registration No. TR01D 2569 from where he was referred to Dr. B.R. Ambedkar hospital at Hapania, Agartala. As soon as the first informant received the information about the assault on her husband, she arrived at Sonamura Rural hospital from where she accompanied her husband to Dr. B.R. Ambedkar hospital at Hapania, Agartala. Having returned to Sonamura in the evening she lodged the FIR and it was explained by her in her FIR that since she was busy with the treatment of her husband the lodging of the FIR was delayed for few hours.

[3] Based on her FIR, Sonamura P.S. case No. 2016 SNM 092 under section 326 read with section 34 IPC was registered against accused Tapan Das and Mamin Miah.

[4] Sri Srikanta Chakraborty, Sub Inspector of police of Sonamura police station carried out the investigation of the case. On the very day of occurrence he raided the house of the appellant and found him absconding. He was arrested on the following day. By the time the victim was shifted to Kolkata for better treatment and after his return from Kolkata on 24.08.2016, the investigating officer recorded his statement under section 161 Cr.P.C. During his investigation, he also got the statement of Ershad Miah [PW-7], an eye witness to the occurrence recorded under section 164 (5) Cr.P.C. The blood samples collected from the place of occurrence along with the blood sample of the appellant and the blood stained weapon of offence were sent to State Forensic Science Laboratory for forensic examination and pending receipt of the forensic report, the investigating officer [PW-21] submitted the charge sheet against the appellant for offence punishable under section 326 and section 307 IPC. Since no evidence was available against co-accused Tapan Das, he was not sent up for trial. After the forensic report [Exbt.10] was received, the investigating officer submitted supplementary charge sheet against the appellant. Since the offence was exclusively triable by the court of sessions, the Sub Divisional Judicial Magistrate, Sonamura committed the case to the court of the learned Additional Sessions Judge at Sonamura [as it was then] for trial. The appellant who was enlarged on bail appeared at the trial court to face the trial.

[5] The learned trial court framed the following charges of offence against accused appellant Mamin Miah:

"That, you on 14.08.2016 at about 06.00 AM At Sonamura Fish market voluntarily caused hurt to Majil Haque by means of a dao and that you thereby committed an offence punishable under section 326 of the Indian Penal Code and within my cognizance.

Secondly, that, you on same date, time and place did an act with such intention and under such circumstance that if by that act you had caused the death of the Majil Haque you have been guilty of murder and that you thereby committed an offence punishable under Section 307 of the Indian Penal Code and within my cognizance.

And I hereby direct that you be tried on the aforesaid charge, by this Court."

The appellant pleaded not guilty to the said charges and claimed trial.

[6] In order to bring home the charge, altogether 21 [twenty one] witnesses were examined and 14 [fourteen] documents and 3 [three] material exhibits were introduced on behalf of the prosecution. Among the witnesses examined by the prosecution, PW-1 is the first informant wife of the victim. Safiqul Rahaman [PW-2] is an associate of the victim who met him at Sonamura hospital immediately after the occurrence. Abdul Kader [PW-3] is the recovery witness who witnessed the discovery of the weapon of offence [Exbt.MO 2]. Nazrul Islam [PW-4] is also a recovery witness who witnessed the discovery of the weapon of offence [Exbt.MO 2]. Alfu Miah @ Nakku Miah [PW-5] eye witnessed the occurrence. Sri Pradip Das [PW-6], president of fish merchant association of Sonamura, appeared at the spot after hearing about the occurrence and witnessed stain of human blood at the crime scene. Ershad Miah [PW-7], a fish seller, also eye witnessed the occurrence. PW-8 is the victim himself. Sri Deepraj Roy [PW-9] was a Deputy Collector & Magistrate of Sonamura in whose presence the accused made his disclosure statement [Exbt.5]. Sri Keshab Saha [PW-10] was a photographer who videographed the recovery of the weapon of offence. Sri Ashim Shil [PW-11] was a police constable who witnessed the seizure of the CD disc containing the videography of the recovery of the weapon of offence. Sri Kishan Roy [PW-12], another constable of police, witnessed the collection of the blood sample of the victim by Dr. Goutam Chakraborty at Sonamura hospital. Sri Rahul Roy [PW-13], a Judicial Magistrate of Sonamura recorded the statement of Ershad Miah [PW-7] under section 164(5) Cr.P.C. during the investigation of the case. Sri Tapas Das @ Tapan [PW-14] is the auto driver who transported the victim to Sonamura hospital from the place of occurrence. Babul Miah [PW-15] witnessed the seizure of the wearing apparels [Exbt.MO 1] of the accused. Sri Amal Chakraborty [PW-16] was the Inspector of police who received the FIR of PW-1 and registered the case as the Officer-in-Charge of Sonamura police station on 14.08.2016. Smt. Rupali Majumder [PW-17] was an Assistant Chemical Examiner at State Forensic Science Laboratory who examined the exhibits at State Forensic Science Laboratory and submitted report [Exbt.10]. Sri Chandan Laskar [PW-18] is the scribe of the ejahar [Exbt.1]. Dr. Tushar Tudu [PW-19], a consultant surgeon of ILS hospital examined the victim who was admitted there till 15.08.2016. Md. Chayed Uddin [PW-20] was a Sub Inspector of police at Sonamura police station who made the GD entry at the police station following a telephonic information about the occurrence on 14.08.2016. Sri Srikanta Chakraborty [PW-21] was a Sub Inspector of police of Sonamura police station who carried out the whole investigation of the case and submitted charge sheet.

[7] After the recording of evidence of prosecution witnesses was concluded, the learned trial court examined the appellant under section 313 Cr.P.C. In answer, the accused abjured his guilt and claimed that the charges were foisted on him. He also declined to adduce any evidence on his defence.

[8] At the conclusion of trial, the learned trial court by judgment & order dated 21.06.2018 found the appellant guilty and convicted him under section 326 and 307 IPC and by order dated 22.06.2018 sentenced him to rigorous imprisonment for 10 [ten] years and fine of Rs.10,000/- with default stipulation for each of the offences and ordered that the sentences would run concurrently which is under challenge before us.

[9] We have heard Mr. S. Sarkar, learned counsel appearing for the appellant as well as Mr. S. Debnath, learned Addl. P.P appearing for the State respondent.

[10] Mr. Sarkar, learned counsel of the appellant has advanced the following arguments:

i. The learned trial court erroneously convicted and sentenced the appellant under section 307 IPC because there is no evidence that accused had intended to kill the victim or he had the knowledge of death in terms of section 307, IPC.

ii. With regard to the conviction and sentence of the appellant under section 326 IPC, it has been argued that the hurt inflicted by the accused on the victim cannot be termed as 'grievous hurt' within the meaning of section 320 IPC and therefore section 326 IPC does not apply to this case. Though, the doctor [PW-19] deposed that the x-ray report of the accused displayed comminuted fracture of distal, radius and ulna, such injuries cannot be said to have been proved without taking the x-ray report into evidence. In support of his contention, Mr. Sarkar, learned counsel of the appellant has relied on the decision of the Apex Court in Budh Singh Vs. State of Punjab reported in (2006) 9 SCC 731.

iii. The victim was totally unprotected. Had the appellant really intended to kill him, he could have easily accomplished his intention. Therefore, there was no intention on the part of the accused to kill the victim and as such section 307 IPC does not apply to the case.

iv. The appellant had no preparation at all for committing the assault on the victim because he carried no weapon with him to execute his plan. The evidence has revealed that he picked up a dao from another fish seller and gave a blow on the victim which indicates that the accused did not act deliberately.

v. It is argued that under no circumstances, an offence under section 307 IPC can be attributed to the appellant of this case because in order to substantiate the charge of offence punishable under section 307 IPC, it has to be proved that the act of assault was done by him with an intention to cause the death of the victim or with knowledge that if the assault caused the death of the victim he would be guilty on murder.

vi. On the premises aforesaid, learned counsel of the appellant urges the court to set aside the impugned judgment and order of conviction and sentence passed by the learned trial court.

[11] Mr. S. Debnath, learned Addl. P.P on the other hand submits that in a case under section 307 IPC, it is not essential that bodily injury capable of causing death should have been inflicted. According to Mr. Debnath, if an inference can be drawn from the evidence that the act of assault was done with the intention or knowledge and under the circumstances mentioned in section 307 IPC, the accused can be convicted for the offence irrespective of the nature of the injury inflicted on the victim.

[12] In support of his contention, learned Addl. P.P has relied on the decision of the Apex Court in State of Madhya Pradesh Vs. Saleem @ Chamaru & Anr. reported in (2005) 5 SCC 554.

[13] It is further argued by the Mr. Debnath, learned Addl. PP that the intention of the accused in the given case can be gathered from the weapon he used and the manner in which he assaulted the victim. It is argued by learned Addl. P.P that the accused was so desperate and determined to kill the victim that he targeted his neck and attacked him from behind. Undoubtedly, he would have killed him unless he was prevented by the victim. According to Mr. Debnath, learned Addl. P.P, there cannot be any doubt that the accused by his gruesome act intended to kill the victim and thereby committed an offence punishable under section 307, IPC.

[14] In support of his contention, Mr. Debnath, learned Addl. P.P has referred to the decision of the Apex Court in Jage Ram & Ors. Vs. State of Haryana & Ors. reported in (2015) 11 SCC 366.

[15] It is finally submitted by learned Addl. P.P that the trial court rightly convicted and sentenced the accused under section 326 and 307 IPC and there is no ground to interfere with the findings of the learned trial court.

[16] Before adverting to the rival contentions of the parties it would be beneficial to have a look into the evidence recorded during the trial.

[17] Smt. Hosneyara Begam [PW-1] did not witness the assault on her husband. She was at home when the occurrence took place at Sonamura fish market. One Nakku Miah who used to work as a cashier in the wholesale market informed her about the assault on her husband over telephone at around 06.20 AM. Knowing that her injured husband was hospitalized by that time she rushed to Sonamura Rural hospital where she met her husband who was found in a critical condition. The injured was immediately transported to Agartala for better treatment. Initially, he was taken to Dr. B.R. Ambedkar hospital at Agartala and from there he was taken to ILS hospital. The PW accompanied her husband. She returned home in the evening, got the FIR [Exbt.1] written by Sri Chandan Laskar [PW-18] and lodged it at the police station based on which the case was registered. She was encountered by the accused in cross examination wherein she stated that her husband was a wholesaler of fish who used to collect fish from Agartala, Sonamura and Bangladesh and sell it to the retail fish sellers in Sonamura market.

In cross examination it was suggested to the witness that the creditors of her husband assaulted him for non-payment of their dues which was denied by the PW.

[18] Safiqul Rahaman [PW-2] did not also see the occurrence. After receiving a telephonic information from his brother Saiful Islam about the assault of the victim he met the victim in hospital who told him that the appellant gave two blows on him with a dao in the fish market as a result of which he received the injuries. The injured was referred to Agartala for better treatment. He stated in his cross that there was a dispute between the victim and the appellant.

[19] Abdul Kader [PW-3] witnessed the seizure of the blood stained dao from near the boundary wall of the quarters of the judicial officers at Sonamura on 14.08.2016 at about 7 AM when he was going to Sonamura market and pursuant to a request of a police officer he signed the seizure list. The PW also identified the dao during the trial of the case and on his identification it was marked as Exbt.MO 2.

In his cross examination it was stated by him that one police personnel brought out the dao from the place where it was lying.

[20] Nazrul Isalm [PW-4] is another seizure witness who witnessed the seizure of the blood stained dao on 14.08.2016 at around 8 O'clock in the morning and stated that he heard from the crowd that the appellant Mamin Miah had assaulted the victim with this weapon in Sonamura fish market.

[21] Alfu @ Nakku Miah [PW-5] is an eye witness to the occurrence. According to him, he arrived at the market in the early morning at around 05.45 AM to work as a Manager of the victim who was a wholesaler in the fish market. The appellant was a retailer in the market. Victim Majil Haque arrived in the market at about 6 AM. When the victim was busy with his work, the accused took a dao from Babul Miah and gave a blow on the back of the victim to kill him. When the victim raised his left hand to ward off the blow he received cut injury on the wrist of his hand. The appellant fled away with the weapon of offence. The PW informed the wife of the victim immediately and hospitalized the injured with the aid of others. In his examination in chief he categorically stated that once the appellant used to do business together with the victim but after a certain period of time they developed enmity between them. The occurrence took place as a result of such enmity. It was further stated by the PW that police arrested the appellant on the following day and after his arrest he confessed before the Deputy Collector & Magistrate [PW-9] that he assaulted the victim with a dao. When the dao which was already seized by the police was shown to him, the appellant also confessed that he used the dao in the assault of the victim.

In his cross examination, the PW stated that he was working with the victim for the last 10 [ten] years as his Manager. A suggestion was put to him that the victim was due to pay huge amount of money to the appellant which was denied by the PW.

[22] Sri Pradip Das [PW-6], the president of the fish merchant association, came to know about the assault of the victim from his colleagues and when he visited the fish market after the occurrence, he saw the crime scene stained with human blood.

In his cross examination the PW stated that the appellant was in partnership business with the victim. Subsequently, they started quarreling with each other and dissolved their partnership.

[23] Ershad Miah [PW-7], a fish seller witnessed the occurrence with his own eyes. He arrived at the fish market at around 05.45 AM on the fateful day and the occurrence took place at 6 AM. Few minutes before the occurrence the PW asked the appellant why he was looking upset. No reply came from the appellant. Suddenly, he picked up a dao from the market and gave a blow on the left shoulder of the victim and while he raised the dao to give the second blow the victim resisted the blow and received cut injury on his left wrist. Seeing the horrifying incident the PW got nervous. The appellant fled away and the victim was hospitalized. After the incident he gave statement to a Magistrate as an eye witness to the occurrence.

In his cross examination he stated that he and his brother used to purchase fish in credit from the victim.

[24] Majil Haque [PW-8] is the victim himself. He has stated in his examination in chief that on 14.08.2016 at about 6 O'clock in the morning when he was sitting on his elevated seat and doing some work, the appellant all on a sudden picked up the dao from Babul Miah, a fish seller, and gave a blow on his back. Thereafter, when he again raised the dao to give the second blow on his neck he raised his left hand to ward off the blow and received cut injury in his wrist. The PW had stated that about a year back, the appellant, a fish seller, had taken fish from him in credit and as a result he had an outstanding dues of Rs.50,000/-. When he demanded the appellant to pay back the outstanding dues he started quarrelling with him. As a result the PW, a wholesaler, stopped supplying fish to the appellant over the last 1 [one] year. According to him, the appellant on the day intended to kill him and therefore he targeted his neck but somehow he was able to resist the fatal blow on his neck and received cut injury in his left wrist. According to the PW, immediately after the assault, his colleagues hospitalized him in Sonamura Rural hospital from where he was brought to Agartala and from Agartala he was flown to Kolkata for better treatment in the Nightingale hospital.

The PW was subjected to incisive cross examination by the appellant. He was asked about how he used to conduct his business in the market. The PW told that after collecting fish from Sonamura and Agartala he used to sell it to various retailers in auction according to the rate of their bids. It was suggested to the PW that he was to pay a huge amount of dues to the appellant. The suggestion was denied by him. The PW also denied the suggestion that he was not assaulted by the appellant and his wife lodged a false case against the accused.

[25] Sri Deepraj Roy [PW-9] was a Deputy Collector & Magistrate on 15.08.2016 at Melaghar in Sonamura Sub-Division. On that day, police produced the appellant before him after his arrest the appellant admitted that on the previous day he assaulted the victim with a dao and he led the police officers and the PW to the place where he had thrown the dao after committing the offence.

[26] Sri Keshab Saha [PW-10], a photographer owned 'Studio Om' at Sonamura who had videographed the scene when the appellant was leading the police party to the place of recovery of the weapon of offence.

[27] Sri Ashim Shil [PW-11] is a constable of police in whose presence the still photographs containing the photograph of the accused leading the police party to the place of recovery of weapon of offence and a CD disc containing the videograph of the scene were seized by police.

[28] Sri Kishan Roy [PW-12] is also a constable of police who witnessed the collection of blood sample from the victim at Sonamura Rural hospital and became a signatory in the seizure list of the blood sample.

[29] Sri Rahul Roy [PW-13], the Sub-Divisional Judicial Magistrate of Sonamura recorded the statement of Ershad Miah [PW-7] under section 164(5) Cr.P.C and on his identification the statement recorded by him was admitted into evidence as Exbt.8.

[30] Sri Tapas Das @ Tapan [PW-14] transported the victim to Sonamura Rural hospital from the place of occurrence in his auto rickshaw who stated that during his transportation to hospital the victim told him that he was assaulted by the appellant.

[31] Babul Miah [PW-15] is a seizure witness who witnessed the seizure of the wearing apparels of the victim and signed the seizure list. On the following day he went to the police station and heard the accused stating to one Executive Magistrate that on the previous day he assaulted the victim with a dao.

[32] Sri Amal Chakraborty [PW-16] an inspector, received the ejahar of wife of the accused [PW-1] at the police station and on 14.08.2016 based on the ejahar he registered the case against the accused.

[33] Smt. Rupali Majumder [PW-17], an Assistant Chemical examiner in State Forensic Science Laboratory examined the exhibits of the case and submitted the report which was admitted as Exbt.10 on identification by the witness. She deposed at the trial that she received 3 [three] exhibits marked as Exbt. A,B & C which were as follows:

A. One sealed paper envelop bearing case reference and signature of witnesses containing two gauge cloth pieces with brownish stain, said to be blood sample from the P.O i.e. fish market of Sonamura where incident took place.

B. One sealed paper envelop bearing case reference and a label Blood sample collected from weapon of offence i.e. Dao containing a piece of gauze cloth, said to be blood sample from the weapon of offence i.e. dao.

C. One sealed paper envelop bearing a label blood sample of Majil Haque containing few pieces of gauze cloth with brownish stain said to be preserved control blood sample from the victim namely, Majil Haque.

She also stated that the result of her examination was as follows:

Blood stain of human origin were detected in the exhibits marked as A, B and C.

Blood group of the exhibit market as A could be determined as B group.

Blood group of the exhibit market as B could be determined as B group.

Blood group of the exhibit market as C could be determined as B group.

[34] Sri Chandan Laskar [PW-18] stated in his examination in chief during trial that Hosneyara Begam came to his tea stall on 14.08.2016 and requested him to write a complaint for her. Accordingly he reduced the version of the complainant in writing and signed it as the scribe. The complainant also signed her complaint and lodged it at the police station.

[35] Dr. Tushar Tudu [Pw-19] attended the injured in ILS hospital at Agartala on the date of occurrence. The injured was an indoor patient in the hospital who took admission on 14.08.2016 i.e. the very date of the occurrence. After examination of the victim, the PW found the following injuries on his person:

One lacerated injury measuring 10 cm x 7 cm x 5 cm on the left wrist, the injury was severe in nature and caused by sharp object.

One cut incised wound measuring 15 cm x 3 cm x 5 cm on the left upper back (Speculator region). The injury was severe in nature caused by sharp object.

X-ray of the injured hand was done at the hospital and according to the PW, the x-ray showed that there was comminuted fracture of distal radius and ulna and therefore the PW opined that the injuries were grievous in nature. He also identified his injury report as Exbt.11. The PW stated that the victim left the hospital before completion of treatment against medical advice.

[36] Md. Chayed Uddin [PW-20] received a telephonic information at the police station at about 06.20 AM on 14.08.2016 to the effect that an incident occurred in Sonamura fish market. He recorded the information in general diary of the police station vide. G.D. entry No. 7 dated 14.08.2016 and arrived at the place of occurrence to verify the veracity of the information when he came to know that at 6 O'clock in the morning the appellant Mamin Miah assaulted Majil Haque and after the incident the injured was hospitalized. Situation in the market was found tensed. The PW then cordoned the crime scene and collected and seized blood stains from there by preparing a seizure list. Subsequently, he searched the neighbouring area and recovered the weapon of offence from near the boundary wall of the quarters of Judicial Officers. After examining some other witnesses he went to Sonamura Rural hospital where the injured was admitted.

[37] Sri Srikanta Chakraborty [PW-21] is the investigating officer of the case who carried out the whole investigation and on completion of his investigation he submitted charge sheet against the appellant. During his investigation, the PW also seized the discharge certificate of the victim issued from Nightingale hospital, Kolkata which has been marked as Exbt.MO 5 by the trial court.

[38] As regards the act of assault on the victim, the prosecution evidence discussed herein above is very clear, consistent and trustworthy. Apart from the victim, Alfu @ Nakku Miah [PW-5] & Ershad Miah [PW-7] are the eye witnesses who witnessed the accused committing the offence. Their evidence consistently supports the evidence of PW-8 [the victim]. The recovery of the blood stained weapon of offence from a nearby place soon after the occurrence is also proved. The fact that the blood stain on the weapon of offence was of human origin and its group and the blood group of the victim was same has also been established by the Forensic report [Exbt.10]. It has thus been conclusively proved that the weapon was used for committing the offence. The medical evidence of Dr. Tushar Tudu [PW-19] who attended the victim in ILS hospital at Agartala has also supported the fact that the victim received incised wound on his left upper back and lacerated injury on his left wrist and both of such injuries were caused by sharp weapon. As a result of such evidence, there is no doubt in our mind that the accused committed the alleged assault on the victim at the alleged place and time.

[39] Now the following two questions are arising for our consideration:

Whether the act committed by the accused constitutes an offence punishable under section 307 IPC?

Whether the injuries inflicted on the victim can be termed as „grievous hurt‟ within the meaning of section 320 IPC to make out an offence punishable under section 326 IPC?

[40] On the first question whether the offence comes within the purview of section 307 IPC, learned Addl. P.P. for the State respondent argued that in a case under section 307 IPC, the court has to see whether the act irrespective of its result was done with the intention or knowledge that death will be caused by such act. In support of his contention, learned Addl. P.P. relied on the decision of the Apex Court in the case of State of Madhya Pradesh Vs. Saleem @ Chamaru & Anr. (Supra) wherein the Apex Court has held as follows:

"12. To justify a conviction under this section it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in this section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof."

"13. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The section makes a distinction between the act of the accused and its result, if any. The court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. Therefore, an accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt."

[41] In the case of Jage Ram & Ors. Vs. State of Haryana & Ors. (Supra) which has also been relied upon by the learned Addl. P.P., the Apex Court was of the same view that to justify a conviction under section 307 IPC, it was not necessary that fatal injury capable of causing death should have been caused. It was held that the court has to gather the intention of the accused from various circumstances like the weapon used, severity of the blow, the body part on which the blow was given etc. and the Apex Court held as under:

"12. For the purpose of conviction under Section 307 IPC, the prosecution has to establish (i) the intention to commit murder; and (ii) the act done by the accused. The burden is on the prosecution that the accused attempted to commit the murder of the prosecution witness. Whether the accused person intended to commit murder of another person would depend upon the facts and circumstances of each case. To justify a conviction under Section 307 IPC, it is not essential that fatal injury actually caused may be of assistance in coming to a finding as to the intention of the accused, such intention may also be adduced from other circumstances. The intention of the accused is to be gathered from the circumstances like the nature of the weapon used, words used by the accused at the time of the incident, motive of the accused, parts of the body where the injury was caused and the nature of injury and severity of the blow given, etc."

[42] Mr. S. Sarkar, learned counsel of the appellant on the other hand argued that the circumstances do not make out a case under section 307 IPC for various reasons. According to the learned counsel, the victim was totally unprotected. According to learned counsel, had the accused really intended to kill the victim, he could have easily accomplished his mission. Moreover, there is no evidence that the accused acted deliberately or that he had a pre plan to kill the victim which is evident from the fact that he did not carry any weapon with him. All on a sudden he picked up a dao from the market and gave the blow on the accused.

[43] In the given circumstances, it is not possible to accept the contention of Mr. Sarkar, learned counsel of the appellant because the accused was so desperate that he did not stop after giving the first blow on a very vital part of the body of the victim and when he raised the weapon to give the second blow the victim raised his left hand to ward off the blow as a result of which he received cut injury in his wrist and the severity of the blow can be well ascertained from the depth of the injuries suffered by the him in his left wrist. The medical evidence of PW-19 has clearly established the fact that he received lacerated injury measuring 10 cm x 7 cm x 5 cm on his left wrist causing comminuted fracture of distal radius and ulna and the victim also received incised wound as deep as 15cmx3cmx5cm on his upper back i.e. on the speculator region which was also very severe in nature and both the injuries were caused by sharp cutting weapon. The severity of the blow, the weapon of offence used by the accused and the body part which was targeted by him and also the number of blows inflicted on the victim clearly indicate that the appellant intended to kill the victim.

[44] Before proceeding further, it would be apposite to refer to section 307 IPC which is as under:

Attempts to murder-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 hereinbefore mentioned.

Attempts by life convicts-[When any person offending under this section is under sentence of [imprisonment for life], he may, if hurt is caused, be punished with death.]

Illustrations

a) A shoots at Z with intention to kill him, under such circumstances that, if death ensued A would be guilty of murder. A would be guilty of murder. A is liable to punishment under this section.

b) A, with the intention of causing death of a child of tender years, exposes it in a desert place. A has committed the offence defined by this section, though the death of the child does not ensue.

c) A, intending to murder Z, buys a gun and loads it. A has not yet committed the offence. A fires the gun at Z. He has committed the offence defined in this section, and if by such firing he wounds Z, he is liable to the punishment provided by the latter part of [the first paragraph of] this section.

d) A, intending to murder Z by poison, purchases poison and mixes the same with food which remains in A‟s keeping; A has not yet committed the offence defined in this section. A placed the food on Z‟s table or delivers it to Z‟s servant to place it on Z‟s table. A has committed the offence defined in this section.

[45] From a plain reading of section 307 IPC, it is apparent that even if the injury inflicted by the accused is simple or minor it does not rule out the application of section 307 IPC if an intention to cause death is attributable to the accused. The Apex Court highlighted the position in State of MP Vs. Mohan & Ors. reported in (2013) 14 SCC 116 wherein it was held as follows:

"14. Section 307 uses the word "hurt" which has been explained in Section 319 IPC and not "grievous hurt" within the meaning of Section 320 IPC. Therefore, in order to attract Section 307, the injury need not be on the vital part of the body. A gunshot, as in the present case, may miss the vital part of the body, may result in a lacerated wound, that itself is sufficient to attract Section 307."

[46] The accused in the present case, being a fish seller was well aware that the blow he was going to inflict on the victim with the fish cutting dao was very likely to cause death of the accused. The manner in which he gave repeated blows on the victim also indicates that he had a clear intention to eliminate the accused.

[47] Therefore, after giving due consideration to the facts and circumstances of the case and the evidence on record, we find no merit in the contention of the learned counsel of the appellant that there was no intention on the part of the appellant to kill the victim. Having held so, we do not find any reason to interfere with the findings of the learned trial court with regard to the conviction of the accused under section 307 IPC.

[48] In so far as the conviction and sentence of the appellant under Section 326 IPC is concerned, it has been contended by Mr. Sarkar, learned counsel of the appellant that in order to justify conviction under Section 326 IPC, injuries inflicted on the victim must satisfy the requirements provided under Section 320 IPC. With regard to the fracture of distal radius and ulna it is argued on behalf of the appellant that the fracture was detected by PW 19 from the x-ray report. But the x-ray report not being produced by the prosecution, the medical evidence with regard to fracture has no value. In support of his contention Mr. Sarkar, learned counsel, has relied on the decision of the Apex Court in Budh Singh and Ors.(supra).

[49] In the case of Budh Singh (Supra), the trial court acquitted the accused from the charges of Sections 302 and 307 IPC which was reversed by the High Court in appeal. The Apex Court, while considering the appeal of the accused appellant, found that though the incident took place on 12.04.1992 and the son of the deceased who also received gun-shot injury during the occurrence was produced in hospital on 13.04.1992 morning and a report of his injuries was prepared, his x-ray was taken much later on 18.04.1992 and after x-ray, a supplementary injury report was prepared. It is in that context, the Apex Court observed that since the x-ray plate as the primary document was not produced in court, the supplementary injury report which was prepared on the basis of x-ray plate was not admissible in evidence and it was not possible to effectively examine the correctness of the report without the x-ray plate. The context of the two cases being distinguishable, the appellant, in our considered view, cannot derive any benefit from the said decision of the Apex Court.

[50] In the given case, Dr. Tushar Tudu [PW-19], an orthopedic surgeon of ILS Hospital, Agartala, recorded in his injury report, Exbt.11 that the x-ray of the left wrist of the victim showed that the victim sustained comminuted fracture of distal radius and ulna. During his deposition in court he opined that all the injuries sustained by the victim were grievous injuries. The PW being an expert on his subject, we find no reason to disbelieve his evidence merely because the x-ray report was not produced before the trial court. Moreover, the cross examiner did not even make a suggestion that no x-ray was taken or that the PW misread the x-ray report. This apart, evidently the victim sustained lacerated injury measuring 10cm x 7cm x 5cm on his left wrist and according to the doctor the injury was severe in nature and caused by sharp object. Evidently, the assault on his wrist also caused comminuted fracture of distal radius and ulna.

[51] Such fracture injury has been designated as grievous hurt within the meaning of clause 7 of Section 320 IPC. It is apparent from the injury report of the victim that the deep cut injury in his left wrist caused comminuted fracture of distal radius and ulna. Whether comminuted fracture can be termed as grievous hurt within the meaning of Section 320 IPC, the Apex Court in Hori Lal and Anr. Vs. State of UP reported in AIR 1970 SC 1969 held as follows:

".......It is not necessary that a bone should be cut through and through or that the crack must extend from the outer to the inner surface or that there should be displacement of any fragment of the bone. If there is a break by cutting or splintering of the bone or there is a rupture or fissure in it, would amount to a fracture within the meaning of clause 7 of Section 320."

[52] In view of what is discussed above, we are of the considered view that the learned trial court was wholly justified in convicting and sentencing the accused also under Section 326 IPC.

[53] On perusal of the entire evidence and the law on the subject, we are of the view that the trial court was right in holding the appellant guilty of offence punishable under Sections 326 and 307 IPC for which he was convicted and sentenced appropriately. Resultantly, the appeal stands dismissed.

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