There must be intentional attempt to commit murder to attract ‘attempt to murder’ offence: Kerala High Court

Section 307 conviction

• The prosecution had alleged that the convict along with other co-accused persons formed unlawful assembly to cause death of a person and bodily hurt on two persons.
• It was further alleged that he indulged in the act of rioting armed with deadly weapons and wrongfully restrained three persons including the victim.
• During the altercation, the appellant allegedly stabbed the victim on the back with a knife, while the co-accused beat the others.
• After framing charge for the offences punishable under various sections of the IPC, the sessions court recorded evidence and completed the trial.
• The sessions court convicted him for the offences punishable under Sections 307, 341 and 323 of IPC and sentenced him to seven years of imprisonment.
• The counsel for the convict argued that he was not properly identified and the evidence available was insufficient to enter into conviction for attempt to murder offence.
• It was further argued that, at the most, the offence in this case that would be attracted is only under Section 324 of IPC and not under Section 307 of IPC.
• The public prosecutor supported the verdict of the sessions court and submitted that the evidence available in this case would substantiate that the convict committed the offences sentenced for.

Court’s observations

• Even though the counsel for the convict disputed identity, when the questions asked during cross-examination were perused, it could be seen that the dispute regarding identity was not at all raised before the sessions court.
• Even though the witness failed to identify the accused at the dock in specific, he referred to him as the accused, who assaulted him. Therefore, the contentions raised by the counsel for the appellant to make the prosecution case unbelievable on the issue of identity could not sustain.
• Going through the manner in which the incident occurred and the attack at the instance of the convict, either intention or knowledge to cause death of the victim could not be found and the convict only caused one injury that was also on the shoulder of the victim, as borne from the wound certificate.
• Therefore, on no stretch of imagination, it is safe to conclude that he committed the offence punishable under Section 307 of IPC.
• Though, from the evidence offence punishable under Section 324 of IPC is made out.
• The sessions judge found offences punishable under Sections 341 and 323 of IPC also by the convict. On evaluation of the evidence, the said offences are also made out.
• Therefore, the verdict would require interference by holding that the convict committed the offences punishable under Sections 323, 324 and 341 of IPC.

Court’s direction

• The conviction and sentence imposed by the sessions court for the offence punishable under Section 307 of IPC is set aside.
• He is convicted for the offences punishable under Sections 323, 324 and 341 of the IPC.
• The accused is sentenced to pay a fine of Rs 1,000, 40,000 and 500 respectively for the offence punishable under Section 323, 324 and 341 of IPC.
• The order suspending sentence and granting bail to the appellant stands vacated, with direction to appear before the sessions court to undergo the modified sentence, failing which, the sessions court is directed to execute the sentence, without fail.