Judgment : 1. This appeal is filed challenging the judgment dated 06.06.2005 passed by the Presiding Officer, Fast Track Court-III, Mysore in S.C.No.115/2004 convicting the appellant for the offence under Section 307 of I.P.C. and sentencing him to undergo R.I. for three years and to pay fine of Rs.1,000/- and in default to undergo S.I. for three months. 2. The case of the prosecution is that, on 22.12.2003 at about 8.30 p.m. in front of the house of one Puttanka Naika at Debur Village, the accused had assaulted the complainant Mariswamy with chopper below his left ear with such intention or knowledge and under such circumstances that if by threat he had caused the death of CW-1 he would have been guilty of murder of the said Mariswamy, thereby he is alleged to have committed an offence under Section 307 of I.P.C. 3. The prosecution in order to prove the case has examined in all 13 witnesses-PW-1 to PW-13 and got marked Ex.P1 to P11 and produced MOs 1 to 6. The defence of the accused is one of total denial. However, by the impugned judgment the learned Sessions Judge was pleased to convict the accused/appellant and sentenced him as aforesaid. The convicted accused has filed this appeal. 4. Heard Sri. C.M. Jagadeesh, learned Counsel for the appellant and Sri. Vijaya Kumar Majage, learned HCGP for State. 5. Learned Counsel for the appellant submits that in this case the eye-witnesses have turned hostile to the case of the prosecution and the case is based on the evidence of injured-PW-9 and eye-witness-PW-11 who is the brother’s daughter of PW-9. He submits that the presence of PW-9 at the scene of occurrence is not mentioned in the first complaint given by PW-9 which was recorded by the Police. He further submits that there is discrepancy regarding the scene of occurrence while the complainant mentions that the incident had happened when PW-9 was standing in front of shop-cum-house of Mahadeva. Ex.P2-Mahazar states that the house of Mahadeva is at a distance of quarter furlong from the shop of one Puttanka Naika. The prosecution witnesses have stated that the incident had happened in front of the house-cum-shop of Puttanka Naika. Therefore, there is lot of discrepancies in the evidence of PW-9, the injured and Ex.P2-Mahazar. Ex.P2-Mahazar states that the house of Mahadeva is at a distance of quarter furlong from the shop of one Puttanka Naika. The prosecution witnesses have stated that the incident had happened in front of the house-cum-shop of Puttanka Naika. Therefore, there is lot of discrepancies in the evidence of PW-9, the injured and Ex.P2-Mahazar. Further, he submits that PW-10 who is the brother of PW-9 and PW-11 who is the alleged eye-witness have stated that the weapon of offence had fallen at the scene of occurrence and the Police have seized the same on the next day, whereas the prosecution case as brought out through the I.O., which is based on the voluntary statement of the accused is that the knife was recovered in the presence of PWs 7 and 8. However, both PWs 7 and 8 have turned hostile to the case of prosecution and therefore, the prosecution has not proved that the weapon has been seized at the instance of the accused. He further submits that the weapon has not been subjected to chemical examination in this case to hold that the same was used for the commission of the offence to prove that the same is stained with blood. It is further submitted that the complaint recorded from PW-9 does not state that there was loan of Rs.3,000/- given by PW-9 to the accused and the incident had happened when PW-9 asked for return of the said amount. Therefore, the very case regarding the incident happening when PW-9 asked for return of money is doubtful and not supported by complaint. The evidence rendered by the prosecution witnesses is full of improvements and therefore, he submits that no conviction can be based on such improved version of the prosecution witnesses. He submits that the order of conviction maybe set aside and the accused may be acquitted. 6. The learned, HCGP on the other hand submits that so far as the place of incident is concerned, it is stated that originally PW-9 was found standing in front of the shop of Mahadeva Naika and the prosecution case is that the incident of assault had happened in front of the shop-cum-house of Puttanka Naika. He submits that there is no discrepancy at all in the evidence of PW-9 and PW-10 and PW-11 who have corroborated the version of PW-9. He submits that there is no discrepancy at all in the evidence of PW-9 and PW-10 and PW-11 who have corroborated the version of PW-9. The injured when taken to the hospital has stated the name of the assailant as the accused and has also stated the weapon used for commission of offence as spoken to by PW-4-Dr. G. Gayathri and hence he submits that the order does not suffer from any illegality or impropriety and he submits that the order of conviction may be sustained by dismissing the appeal. 7. The prosecution in this case commenced with recording the statement of the injured Mariswamy by the Police at the Nanjangud Government Hospital on 22.12.2003. In the said complaint it has been stated by the injured Mariswamy that at about 8.30 p.m. on that day he was standing in front of shop of one Mahadeva in their village. At that time the accused Betta alias Kariaiah came, he was holding a chopper in his hand. Suddenly the accused started abusing him and when he asked as to why he is abusing, the accused started quarrelling and telling that he will not leave without murdering and by saying he assaulted him on the left ear by means of chopper and also on his neck three times and caused injuries. He has stated that the accused has assaulted with the intention of committing his murder and thus he has attempted to kill him. He has prayed for action against the accused. The Villagers have pacified him and thereafter he was brought to the Hospital. The Nanjangud Police have registered the above complaint in Crime No.282/2003 on 23.12.2003 for the offence under Section 307 of I.P.C. and commenced investigation. After completion of investigation, charge sheet came to be filed. 8. PW-1 is a witness to Mahazar but he has turned hostile to the case of the prosecution. PW-2-Puttaraju is the signatory to Ex.P1 under which the Police have seized the cloths of the injured and they are marked as MOs 1 and 2. MO-3 is the towel. PW-3-Chikkaranga Nayaka is a signatory to Ex.P2 under which spot Mahazar was drawn. PW-4-Dr. G. Gayathri has stated that on 22.12.2003 at about 9.40 p.m. the injured Mariswamy was brought to the Hospital by his brother with the history of assault at 8.30 p.m. on the same day by Bettappa @ Karinayaka with a chopper. MO-3 is the towel. PW-3-Chikkaranga Nayaka is a signatory to Ex.P2 under which spot Mahazar was drawn. PW-4-Dr. G. Gayathri has stated that on 22.12.2003 at about 9.40 p.m. the injured Mariswamy was brought to the Hospital by his brother with the history of assault at 8.30 p.m. on the same day by Bettappa @ Karinayaka with a chopper. On examination it was found that the injured had sustained three injuries and the patient was referred to K.R. Hospital, Mysore for further treatment where the injured had taken treatment. She has stated that the injuries sustained by injured Mariswamy are simple in nature and she has issued Ex.P3-wound certificate. Ex.P4 is the Extract of MLC Register. 9. PW-5-S. Naveen Kumar is the Police Constable who had taken the FIR to the Court. PW-6-Shivananja Naika is the person who has reached the scene of occurrence immediately after the incident and he saw CW-1 the injured with the injuries on his neck and thereafter he has shifted the injured to the Nanjangud Government Hospital. After getting the first-aid the injured was shifted to K.R. Hospital, Mysore. It is elicited in the evidence of PW-6 that the incident took place regarding the loan of Rs.3,000/- said to have been given by the injured to the accused. PW-7-Nanjunda Naika is the witness for the recovery of weapon who, has turned hostile to the case of prosecution so also PW-8-Siddarju. Both have not supported the recovery of weapon from the accused. 10. PW-9 is the injured. He has stated that the accused is doing lorry loading work since about 3 years prior to his giving evidence before the Court. While he was going from the house to his shop, the accused was standing near the shop of one Mahadeva. He asked the accused for return of loan of Rs.3000/- which was taken by him. At that time his brother’s daughter Roopa was also with him. The accused told that there is no due to him and so saying he came to assault him. The accused further told that he will kill him. However, he reached the shop of his brother Putta Anka Naika. The accused came from his behind and assaulted him by means of a chopper on his neck three times. His neck started bleeding and he fell down. The accused further told that he will kill him. However, he reached the shop of his brother Putta Anka Naika. The accused came from his behind and assaulted him by means of a chopper on his neck three times. His neck started bleeding and he fell down. Roopa went to the house to narrate the incident and thereafter, his brother Shivanaja came and removed him to Nanjangud Govt. hospital. He was not having conscience. Thereafter, he was taken to K.R. Hospital, Mysore. The Police came to the hospital and recorded his statement as per Ex.P-8. He has identified the chopper as MO-4 used by the accused for commission of offence. In the cross examination, it is elicited that the accused was standing in front of the shop of Mahadeva and he also went and stood there, then the time was at about 8.30 or 9 p.m. He has stated that there is no document to show that the accused has taken a loan of Rs.3000/- from him and accused is having no job. It is further elicited that he has not suited before the police regarding the loan transaction nor regarding the presence of his brother’s daughter Roopa at the time of recording his complaint. It is suggested to him that the police have taken his signature on a blank paper and that he is not aware of the contents of his Complaint. It is further elicited that he has taken treatment in the K.R. Hospital for about 2 months as an inpatient. 11. PW-10 Nanjunda is a witness to Ex.P-2 mahazar recorded at the spot. PW-11 is Roopa who is brother’s daughter of the injured. She has stated that she was present at the scene of occurrence along with her uncle on the date of the incident. She has further stated that the accused was standing near the shop of one Mahadeva and he was talking with his uncle and her uncle asked about the money. At that time, the accused pushed her uncle and thereafter, telling that he will kill him, accused went away. It is in the evidence of PW11 that thereafter, the accused came to the shop where her uncle was standing, holding a chopper in his hand and assaulted, her uncle on the left side of his neck three times. Her uncle sustained bleeding injuries and fell down. It is in the evidence of PW11 that thereafter, the accused came to the shop where her uncle was standing, holding a chopper in his hand and assaulted, her uncle on the left side of his neck three times. Her uncle sustained bleeding injuries and fell down. She went to the house to call her another uncle PW6 and thereafter, the injured was removed to the hospital. In the cross-examination, she has stated that since there was darkness, she cannot say as to who were all present at the scene of occurrence. It is further elicited that she has seen the accused before the incident also since she had gone to the shop to bring the things. It is further suggested that her uncle was in the habit of drinking liquor. However, she has denied the said suggestion. Subsequently, she has stated that her uncle was in the habit of drinking liquor. 12. PW-12 PSI has conducted part of investigation in this case and has filed charge-sheet against the accused. PW-13 ASI has visited PW9 Mariswamy in the K.R. Hospital and since he was in a position to give statement, he recorded the statement of the injured which is marked at Ex.P-8 and has registered the case after coming back to the Police Station in Crime No.282/03. 13. It is from the above evidence of these witnesses, that the learned Sessions Judge has found the accused guilty and convicted him as herein before mentioned. 14. On a careful consideration of the material on record, it is seen that the information regarding the incident has been given by PW-9 on 22.12.03 and the doctor has certified that at the time of giving statement, patient was in a sound state of mind and the doctor has also endorsed Ext.P-8 the complaint recorded from the injured. However, in the said complaint, the injured Mariswamy has not stated regarding the presence of PW-11 with him so also his asking for return of loan of Rs.3000/- from the accused. Further, it is seen that he has stated that the incident has happened in front of the shop of one Mahadeva, whereas Ex.P-2 Mahazar states that scene of occurrence is in front of the shop of one Putta Anka Naika and that shop is about ¼ furlong away from the spot mentioned in Ex.P-2. Further, it is seen that he has stated that the incident has happened in front of the shop of one Mahadeva, whereas Ex.P-2 Mahazar states that scene of occurrence is in front of the shop of one Putta Anka Naika and that shop is about ¼ furlong away from the spot mentioned in Ex.P-2. It is further stated by PWs.10 and 11 that the weapon of assault had fallen at the spot and the police had come on the next day and seized the same whereas the prosecution case is that the said weapon was recovered as a consequence of information given in the voluntary statement of the accused and it was seized in the presence of PWs. 7 and 8. The voluntary statement is at Ex.P-9, as a consequence of which the alleged recovery has been made. In view of categorical evidence of P.Ws.10 and 11, the recovery is falsified since the weapon was found on the spot itself. Further the weapon has not been subjected to FSL examination nor the clothes of the injured to establish that the said, weapon is connected with the crime. In view of the above discrepancies, it cannot safely be held that the accused has committed the assault on PW9 on the date of the offence and therefore, I am of the opinion that the appellant is entitled for benefit of doubt holding that the prosecution has not proved the case against the appellant beyond reasonable doubt. 15. In the result, this appeal is allowed. The order of conviction and sentence passed against the accused is hereby set aside. Bail bond executed by the accused shall be discharged. The fine amount, if any deposited by the accused shall be refunded to him. Appeal allowed.