1. This appeal is directed against the judgment and order passed by Shri J.N Barua, Assistant Sessiens Judge, Goalpara at Dhubri in Sessions Case No. 4 (D)/71 convicting the appellant under Section 307 of the I.P.C and sentencing him to suffer rigorous imprisonment for six years and to pay a fine of Rs. 1000/- in default, to suffer rigorous imprisonment for 6 months more. The learned Assistant Sessions Judge, also directed that on realisation of the fine the injured be given a sum of Rs. 500/- out of the total fine of Rs. 1,000/-. The drama was enacted on 26-9-1969 at or about 4 p.m in a bazar, named and styled as “Tipkai bazar”, where, according to the injured first informant, P.W 2 Rupsing Brahma, he was selling “Pork” along with others. The accused after having purchased Pork from him returned back and took his own Dao and dealt several blows on the neck of the first informant wherefor he lodged the first information report to the police at Bilasipara on the very same day.

2. It may be stated here that the accused person is a cultivator and was at all relevant time aged about 55 years, i.e to say, he is at present aged about 63 years or so, It is also not contested by the learned Public Prosecutor, when it was submitted by the learned counsel for the appellant that the accused belongs to a backward class or community. Therefore, these are indubitable factors of the case. This is also proved by the prosecution beyond reasonable doubt that the injured P.W 2 Rupsing Brahma sustained 4 simple injuries caused by “sharp weapon” and the expert evidence disclosed that not a bone was cut, nor the injured lost his senses after receiving the blows in question. The Police investigated the case. But, unfortunately, in the present case, although the most material evidence of the case, namely, the weapon with which the assault was committed, was neither seized by the police officer conducting the investigation of the case, nor it was produced before the Court as material exhibit.

3. In the instant case, after the ejahar was lodged, the police started investigation of the case and after having completed the investigation submitted a charge sheet against the appellant and in due course after the committal proceedings under the old Criminal Procedure Code the appellant was sent up for trial before the learned Assistant Sessions Judge, as stated above,

4. Before the Assistant Sessions Judge as many as 8 witnesses including P.W 1, Dr. M.C Sarma, were examined.

5. Shri P.C Kataki, the learned counsel for the appellant took a straight trail and submitted before me that it is not a case covered by Section 307 of the I.P.C inasmuch as the essential constituents or ingredients of the offence are conspicuously absent, which the learned Assistant Sessions Judge did not take into consideration at all. The learned counsel submitted that it is a case in which the appellant is liable to be convicted under Section 323 of the I.P.C The learned counsel was fair enough to submit that on the facts and circumstances of the case he does not desire to advance any argument for acquittal of the accused of the charge under Section 323 of the I.P.C He has submitted on the question of sentence as well.

6. The learned public prosecutor, Shri G. Sarma, has clearly conceded that this is not a case under Section 307 of the I.P.C but is a case under Section 324 of the I.P.C This is a concession made by the learned Public Prosecutor.

7. As an abundant caution I do not propose to act on concessions made by the learned Public Prosecutor. The essential ingredients of the offence under Section 307, I.P.C are the following:

1) That the death of human being was attempted;

2) That such death was attempted to be caused by, or in consequence of, the act of the accused,

3) That such act was done with the intention of causing death; or

that it was done with the intention of causing such bodily injury as—

i) the accused knew to be likely to cause death; or

ii) was sufficient in the ordinary course of nature to cause death; or

that the accused attempted to cause such death by doing an act known to him to be so imminently dangerous that it must in all probability cause (1) death, or (2) such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury.

8. The word “intent” is derived from the word archery or aim. The “act” attempted to must be with “intention” of killing a man.

9. Intention, which is a state of mind, can never be precisely proved by direct evidence as a fact; it can only be deduced or inferred from other facts which are proved. The intention may be proved by res gestae, by acts or events previous or subsequent to the incident or occurrence, on admission, Intention of a person can't be proved by direct evidence but is to be deduced from the facts and circumstances of a case. There are various relevant circumstances from which the intention can be gathered. Some relevant considerations are the following:—

1. The nature of the weapon used.

2. The place where the injuries were inflicted.

3. The nature of the injuries caused.

4. The opportunity available which the accused gets,

10. In the instant case, it is worthwhile to mention that the evidence of the doctor clearly shows and indicates that all injuries which were sustained by the injured were simple in nature and they were caused by sharp weapons. The nature of the injuries is indicative of the fact that no heavy weapon was used. No bone was cut. The injuries are such that even the injured did not lose his consciousness. Even the doctor does not say that any “blow” was given by any weapon whatsoever. His only evidence was to the effect that a “sharp weapon” was used. It was not even attempted to be elicited from the expert witness that from the nature of the injuries it could be inferred by him that the injuries were caused by any “dangerous weapon” or that the injuries were such from which the intent of the accused person could be gathered to cause death of the injured. Therefore, it is apparent that the prosecution has clearly failed to establish from evidence of the expert witness, namely, the doctor that the injuries were of grievous nature or that the weapon said to have been used by the accused person was ‘dangerous’ or that from the injuries itself the intention could be inferred or gathered that the accused person had the intention of doing away with the life of the injured person. In the instant case, from the nature of the injuries, I find that it was nothing but graze or scrapes made by a sharp weapon on the injured. The nature of the injuries do not show that even “blows” were given by a “sharp weapon”. If the accused person had the intention of killing the injured with a so-called dangerous weapon, the injuries would not have been so innocuous, simple and superficial.

11. In this connection it is essential to refer a decision reported in (1971) 3 SCC 762 : AIR 1972 SC 1764 : (1972 Cri LJ 469) (Jai Narain v. State of Bihar), wherein their Lordships in the Supreme Court observed as under:—

“Taking the case of appellant Suraj Mishra, we find that he has been convicted under Section 307 I.P.C and sentenced to 5 years' rigorous imprisonment. According to the evidence Suraj was responsible for the chest injury which is described by Dr, Mishra, P.W 6 as a penetrating wound 1½′ × ½′ × chest wall deep (wound not probed) on the side of the right side of the chest. Margins were clean cut. Suraj, according to the evidence, had thrust a bhala into the chest when Shyamdutt had fallen as a result of the blow given by Mandeo with the Farsa on his head. According to the Doctor the wound in the chest was of a grievous nature as the patient developed surgical emphysema on the right side of the chest. There was profuse bleeding and, according to the Medical Officer the condition of the patient at the time of the admission was low and serious and the injury was dangerous to life. Out of the four injuries which the Medical Officer noted, this injury was of a grievous nature while the other three injuries were simple in nature. Where four or five persons attack a man with deadly weapons it may well be presumed that the intention is to cause death. In the present case, however, three injuries are of a simple nature though deadly weapons were used and the fourth injury caused by Suraj though endangering life could not be deemed to be an injury which would have necessarily caused death but for timely medical aid. The benefit of doubt must, therefore, be given to Suraj with regard to the injury intended to be caused and, in our opinion the offence is not one under Section 307-IPC but Section 326-IPC, His conviction, therefore, under Section 307 IPC is set aside and we convict him under Section 326-IPC. His sentence of 5 years' rigorous imprisonment will have to be reduced accordingly to 3 years' rigorous imprisonment.”

12. In the instant case it is apparent that the injured person was completely at the mercy of the person causing the injury (the appellant) and that, according to the prosecution allegation a weapon like dao was available to the accused yet he did not make use of that in a cruel or brutal or merciless manner but inflicts only some scrapes, grazes and superficial injuries under such circumstances no offence tinder Section 307 of the I.P.C can be sustained.

13. Same view was expressed by the Hon'ble the Chief Justice in Criminal Appeal No. 25 of 1969 (Gau), When merely simple injuries were caused and when allegations were that the accused got opportunities of giving fatal blow but did not give any such blow, it was held by his Lordship, the prosecution could not bring home a charge under Section 307 of the I.P.C I respectfully agree with the opinion expressed by My Lord, the Hon'ble Chief Justice.

14. In view of the observations of their Lordships in the Supreme Court and my Lord, the Hon'ble the Chief Justice, the learned Public Prosecutor was fair enough to concede that this is not a case covered under Section 307 of the I.P.C

15. The learned Public Prosecutor submits that this is a case covered by Section 324 of the I.P.C inasmuch as there is enough evidence to show that a “dangerous weapon” was used. The alleged eye witnesses have spoken about the use of “a dao” by the accused person while inflicting the injuries. Having looked into the evidence as to the nature of the injuries personally I cannot persuade myself to believe that a man of 55 years at all relevant period could have inflicted such injuries with a “dao”. Can we expect that the accused person behaved abnormally and merely grazed or gave scratches with the dao? That cannot be the normal behaviour of a normal human being. In the instant case, as I have already stated, the doctor even did not say that the weapon which caused the injuries in question was “dangerous in nature” Therefore, in my view, the prosecution has failed to show and establish through the expert evidence that the weapon which caused injuries was dangerous in nature or in other words “dangerous weapon” as contemplated under Section 324 I.P.C

16. In order to bring home the charge under Section 324 of the I.P.C, it is the duty of the prosecution to show and establish that the hurt was caused by any instrument for shooting, stabbing or cutting or by any instrument, which used as a weapon is likely to cause death etc. In the instant case, there is no medical evidence or expert evidence to show that the weapon used was any of the instruments or weapons mentioned in Section 324 of the I.P.C This is the evidence of the expert as adduced by the prosecution itself.

17. Next, we search for the weapon in order to find and see as to whether the weapon was “dangerous weapon” as contemplated under Section 324 of the I.P.C Why not was it seized and produced before the Court for the purpose of appreciating the evidence? No explanation has been given by the prosecution as to why the alleged weapon, which was used by the accused person and thrown away near the place of occurrence could not be seized by the police officer and produced in Court It was not even exhibited as material Exhibit, nor it is before me. There is no explanation of the prosecution—I am at a why not The only presumption for non-production of such a vital evidence is that the weapon in question was not a weapon as covered under Section 324 of the I.P.C It is undoubtedly true, as submitted by the learned Public Prosecutor, that the weapon in question was described as a “dao” by the witnesses. Now, the question is as to what is the nature of the evidence of these witnesses. In my opinion, the evidence is notional or based on impression. In view of the nature of the injuries, medical evidence and non-production of the weapon can't give much credence on such oral evidence.

18. Therefore I have every reason to believe that the prosecution has failed to prove beyond reasonable doubt that the appellant caused the injuries by “dangerous weapon” as contemplated under Section 324 of the I.P.C and as such I must give the benefit in favour of the accused person and have no alternative but to hold that the prosecution has failed to prove the case under Section 324 of the I.P.C

19. There is not the least doubt about the fact that the injuries were caused by the accused person and it has been established beyond all reasonable doubt that pork vendor was assaulted and injured and that he must have sustained pain and injuries and in fact the action of the accused person was an offence under Section 323 I.P.C

20. Now, the question arises as to how a balance should be struck and maintained in regard to the sentence. I have considered the status of the parties and find that the accused is nothing but an ordinary cultivator—he comes from “a tribal community”. I also find that the age of the accused person is at present about 63 years. I also take into consideration the nature of the injuries inflicted on the injured (which are all simple in nature), I also take into consideration the inordinate delay of 7 years in final disposal of the case and I come to the conclusion that in the instant case the most appropriate sentence should be that the accused should be sentenced for the period already undergone by him, namely 7 days, as submitted by the learned counsel for the parties. I find that under the facts and circumstances of the case the sentence of fine is also on the high side. The accused, as stated is a cultivator, but at the same time the injured has also suffered sufficient pain and agony. My opinion is that a sentence must be just, reasonable and even so that the parties to the proceedings may bear it. The cause of justice, in my opinion, shall be enhanced if the fine is reduced to Rs. 600/- and the entire amount be directed to be paid to the injured.

21. In the result, the appeal is allowed to the extent indicated above and the sentence is modified accordingly. Before parting with the record, I desire to observe that the fine imposed may be realised at the earliest possible convenience of the Court and paid to the injured person without undue delay.

22. Appeal allowed.