JUDGMENT & ORDER : 1. This appeal is directed against the judgment and order dated 13.7.2015 passed by the learned Sessions Judge, Darrang Mangaldoi in Sessions Case No. 15(DM) 12 (GR Case No. 865/11) convicting the accused appellant to suffer rigorous imprisonment for 5 years U/S 326 and to pay a fine of Rs.5000/- in default of payment of fine to undergo further rigorous imprisonment of 6 (six) months. The accused appellant was also sentenced to undergo rigorous imprisonment of 6 years and to pay a fine of Rs.5,000/- in default to undergo further rigorous imprisonment of 6 (six) months U/S 307 IPC and the accused is sentenced to undergo further rigorous imprisonment of 3 years and to pay a fine of Rs.3000/- in default to undergo further rigorous imprisonment of 3 months U/S 457 IPC. All the sentences shall run concurrently. 2. The prosecution case in short is that one Md. Fakir Ali on 14.1.2011 lodged an FIR before the O/C Dalgaon Police Station alleging inter-alia that he has been residing in the house of the appellant Md. Hazarat Ali @ Md. Harzat Ali for 1½ years after marrying sister of the appellant-Hazarat Ali @ Md. Harzat Ali. He also stated that about 6 months ago, his wife, sister of the accused expired. The informant was entitled to Rs.3200/- from the appellant-Hazarat Ali @ Md. Harzat Ali and when he asked for the money the accused person asked him to vacate his house. On 6.1.2011 the accused Hazarat asked him to come to Bechimari market at around 11.00 PM to receive his money but he did not go and on the same night around 1.30 AM the accused person along with 3/4 other persons entered into his house by opening the door in order to commit murder of him and the accused Hazarat assaulted him and his mother Fulmati Bewa aged about 70 years on her stomach by dagger and also assaulted his son Rejaul Ali aged about 7 years in his stomach and on left leg causing grievous injuries. On hearing hue and cry he woke up from the sleep and caught hold of the appellant-Hazarat Ali @ Md. Harzat Ali but said appellant-Hazarat Ali @ Md. Harzat Ali assaulted on his left hand by dagger and got released from his grab and fled away from the scene. On hearing hue and cry he woke up from the sleep and caught hold of the appellant-Hazarat Ali @ Md. Harzat Ali but said appellant-Hazarat Ali @ Md. Harzat Ali assaulted on his left hand by dagger and got released from his grab and fled away from the scene. It is stated that due to serious injuries sustaiend his mother and son he had to take them by 108 ambulance to Mangaldoi Civil Hospital for treatment. Therefrom they were referred to GMCH for better treatment. As he was busy in providing treatment to the injured there was delay in lodging the FIR. 3. On receipt of the FIR the O/C Dalgaon Police Station registered the Dalgaon P.S. Case No. 39/11 U/S 457/326 IPC and investigated into the matter and upon conclusion of investigation submitted the charge sheet against the appellant, showing him absconder U/S 457/326/307/323/34 IPC. 4. On committal of the case by the Magistrate concerned, the aforesaid Sessions Case was registered and the learned court of Sessions, Darrang Mangaldoi framed the charge under the aforesaid Sections of law against the appellant. The charges were read over and explained to the appellant who pleaded not guilty and demanded trial. Accordingly, the appellant stood the trial. 5. In order to bring home the aforesaid charges the learned trial court examined 8 (eight) witnesses including 3 number of doctors and the I/O of the case. Accused appellant was examined under Section 313 Cr.P.C. wherein he denied all allegations and he declined to examine any witness in his defence. On the basis of the materials available on record, the learned trial court passed the impugned judgment and order convicting and sentencing the appellant as mentioned above. Hence the appeal. 6. The learned Amicus Curiae for the appellant Mr. S.K. Agarwal has advanced his argument basically challenging the impugned judgment on the ground of delay in filing the FIR and for having no supporting independent witness to the occurrence and has urged that the conviction and sentence is bad in law and liable to be set aside. On the other hand the learned counsel for the State Respondents Mr. B. Sarma, has vehemently contended that the learned trial Court has elaborately discussed and appreciated all the evidence on record in proper perspective and there is no scope for interference into the impugned judgment. On the other hand the learned counsel for the State Respondents Mr. B. Sarma, has vehemently contended that the learned trial Court has elaborately discussed and appreciated all the evidence on record in proper perspective and there is no scope for interference into the impugned judgment. The evidence of three injured persons found trustworthy, corroborated by medical evidence and their evidence cannot be discarded solely for non having the independent witness. 7. I have given due consideration to the submission above and scrutinise the evidence on record and gone through the impugned judgment. 8. PW-2 is the informant who married the sister of the accused-appellant. He had two sons and one daughter from earlier wife. Prior to six months of the incident, sister of the accused-appellant also expired, but he continued to live in the house of the accused-appellant. The accused appellant asked to vacate the room as and when PW 2 asked him to return the money of Rs.3200/- payable to him. 9. On examination of evidence of other two injured persons PW 6 Fulmati Bewa 70 years and PW 7 Rejaul Hoque, 12 years it is found that both of them were sleeping in the same room at the time of occurrence and both of them have stated similar evidence that on the day of occurrence accused appellant Hazarat Ali first assaulted PW 6 and PW 7 put on torch from mobile phone and saw the accused causing injuries on the stomach of his grandmother and PW 7 pleaded not to assault PW6 and then accused appellant assaulted him three times then PW 7 shouted for his father and then his father/informant PW 2 arrived and grab the accused appellant but the accused appellant assaulted his father also and fled away. It is also in their evidence that one of the neighbour Ahed Ali informed 108 Ambulance and took them to Mangaldai Civil Hospital and then to GMCH. Both of them fully identified the accused appellant Hazarat Ali, however, regarding wearing apparels it has been stated by the PW6 that the accused was wearing a white stripe shirts and PW 7 stated that it was blue white stripe shirt and the PW 2 stated that the accused appellant was wearing a black shirt and a lungi. Both of them fully identified the accused appellant Hazarat Ali, however, regarding wearing apparels it has been stated by the PW6 that the accused was wearing a white stripe shirts and PW 7 stated that it was blue white stripe shirt and the PW 2 stated that the accused appellant was wearing a black shirt and a lungi. Both these witnesses PW 6 & PW 7 have denied the suggestion of defence side that the case has been filed in order to grab the land of Hazarat Ali where they reside. 10. The only independent witness examined by the prosecution is Md. Ahed Ali, PW5, who has supported the fact that on the night of occurrence at about 2 AM, hearing hue and cry in the house of the informant he came out and met the informant on the road who was asking for help saying that the condition of his mother is very serious and he called him to his house. Accordingly, he went to the house of PW2/informant and found Fulmati Bewa/ PW6 and Rejaul/PW7 have serious cut injuries on their stomach and PW 2 also had some cut injury on his hand. He managed on 108 Ambulence and took both the injured to Mangaldoi Civil Hospital. However the said PW5 denied having any knowledge as to who committed the offence. He was declared hostile by the prosecution and denied to have given any statement before IO that he was told by the PW2 that it was the accused appellant who committed the offence. His statement made before the IO is confirmed by the IO in course of examination. 11. Shri Amal Chandra Dey/PW 8 is the investigating officer who has stated that the said independent witness Ahed Ali made a statement before him U/S 161 CrPC that when I asked Fakir Ali he stated before me that Hazarat Ali along with 3/4 persons have assaulted his mother Fulmati Bewa and his son Rejaul Ali by dagger and thereafter fled away. 12. Further regarding the investigation the PW 8 has stated that on 14.1.2011 he received the FIR from the informant and when he reached the place of occurrence the injured persons Rejuaul Ali and Fulmati have already shifted to hospital and accordingly he collected the medical Certificate from GMCH. He also sent the informant to Dalgaon PHC for treatment. 13. 12. Further regarding the investigation the PW 8 has stated that on 14.1.2011 he received the FIR from the informant and when he reached the place of occurrence the injured persons Rejuaul Ali and Fulmati have already shifted to hospital and accordingly he collected the medical Certificate from GMCH. He also sent the informant to Dalgaon PHC for treatment. 13. It is to be noted that the independent witness has virtually supported the case of the informant that all three persons PW2, PW6 and PW7 were subject to attack and assault by sharp weapons and they were shifted for medical treatment immediately and there is no dispute that the informant resided in the house of the accused appellant at the time of occurrence and as per the evidence on record the accused appellant was not found since after the incident and found absconding and the charge-sheet was also filed declaring the accused/appellant as absconder. It can be assessed that if there is no complicity of the accused with the offence alleged, there should be no occasion for him to abscond immediately after the occurrence and his conduct itself is a relevant factor in the given circumstances. 14. That apart, there is another story as to why the incident had happened. The informant was the brother in law of the accused appellant who happened to stay in the house of the accused appellant since he married his sister but unfortunately the sister of the accused appellant died prior to six months of occurrence and thereafter informant was asked by the accused appellant to vacate his house when the informant asked for the money of Rs.3200/- which was taken by the accused appellant and only thereafter this incident occurred. This aspect of the matter indicates motive on the part of the accused appellant to commit the offence so as to get rid of the informant from his property and to avoid the payment. Motive plays a vital role behind the offence which lend another support to a prosecution case. 15. In the instant case all the injured witnesses PW 2, PW6 and PW7 have given clear evidence that it was accused appellant who inflicted several cut injuries on their persons and there appears no reason for false implication of the accused appellant. Motive plays a vital role behind the offence which lend another support to a prosecution case. 15. In the instant case all the injured witnesses PW 2, PW6 and PW7 have given clear evidence that it was accused appellant who inflicted several cut injuries on their persons and there appears no reason for false implication of the accused appellant. The independent witness/PW may not specifically spell out the complicity of the accused appellant for the simple reason being the adjacent neighbour of the accused appellant. However, his evidence is supporting towards the incident that has happened in the house of informant on the fateful day. All the injured persons who were tested in the lengthy cross examination has given a detailed description of the incident without any material omission and contradiction. All of them have stated about the arrival of PW5 immediately after the occurrence. The fact regarding identification of accused appellant is reaffirmed by all the witnesses that they could fully identified the accused appellant as the accused was caught hold by the informant and he was not a stranger to him and PW7 saw him in the light of mobile phone. In such backdrop the challenge of identification having regard to the wearing apparels is of little consequence. 16. Now let us turned to the medical evidence that has been examined by the prosecution. The prosecution has examined three doctors-PW1 Dr. Kailash Kr. Thakuria, Dr. Rupnarayan Goswami/PW3 and Dr. Mriganka Ch. Kakati/ PW4. PW1 was deposed that on 21.3.2011 while he was serving as Register of Surgery Department of GMCH, on police requisition he submitted injury report of Fulmati Bewa, 70 years (PW6) which is as follows:- (1) Penetrating injury 2.5 cm length at left hypochoudrim over prolapsed of omentum. (ii) 2 cm length penetrating wound below right costal margin and (iii) Splenic injury (laceration). According to this PW1 as per nature of wound weapon used was sharp and the injury was grievous. He proved the report, Ext.1 and his signature as Ext.1(1) and stated that as per report, entry date was 7.1.2011 at 9.30 PM. Another Doctor, Dr. (ii) 2 cm length penetrating wound below right costal margin and (iii) Splenic injury (laceration). According to this PW1 as per nature of wound weapon used was sharp and the injury was grievous. He proved the report, Ext.1 and his signature as Ext.1(1) and stated that as per report, entry date was 7.1.2011 at 9.30 PM. Another Doctor, Dr. Rupnarayan Goswami as PW 3 proved the injury report as regards injury to PW 7, Rejaul Ali that on 14.11.2011 while he was working as Register in GMCH he issued the report pertaining to examination of said Rejaul Ali who sustained penetrating abdominal injury and prolapsed of quantum, which are grievous injuries. Dr. Mriganka Ch. Kakati/PW4 stated that on 14.1.2011 when he was working as medical and health officer at Dalgaon under NRHM and on that day he examined PW2, Fakir Ali as per police requisition and found the following: (i) Post operative healing ulser on the left ventral aspect of the forearm above the wrist joint. Size 1½ inches in length which is caused by sharp object. (ii) Tenderness on chest caused by blunt object. As per his opinion, the injury sustained was simple and he proved his report as Ext.4. 17. The above medical report has supported the fact of prosecution that PW6/Fulmati Bewa and PW/7 Reajul sustained grievous injuries at abdomen on their persons caused by sharp weapons. It is to be noted that the aforesaid medicolegal case report was prepared subsequently on the basis of documents in GMCH and it has a reference of examination of the patients/injured on 6.1.2011. There are some other documents in the record i.e. discharge certificates as a part of record (though not exhibited by the prosecution) which reveals that the aforesaid two injured were admitted in the GMCH as on 7.1.2011 and was discharged on 13.1.2011 and 19.1.2011. It is also evident that the informant being the guardian of the aforesaid two injured was busy in attending both of them in the hospital on critical condition and as such delay in filing the FIR is not at all doubtful. 18. On the basis of evidence on record the learned trial Court has convicted the accused appellant U/S 457/326/307 IPC. 18. On the basis of evidence on record the learned trial Court has convicted the accused appellant U/S 457/326/307 IPC. So far as the offence U/S 457 and 326 IPC the learned trial Court has rightly convicted the accused appellant and same is upheld but in the given circumstances the offence U/S 307 IPC cannot be held to be proved as against the accused appellant. As we found that the evidence of PW 6 & PW 7 who have sustained grievous injuries on the person has given their evidence in the simple manner that the accused persons inflicted injury with a kukri at the abdomen and as soon as the informant/PW 2 arrived, the accused fled away. It is to be noted that at the time of attacking those two witnesses, the PW 2 was not there and as such had the accused intended to cause death of those witnesses, he could have easily succeeded as there was no protest at that time. The evidence of PW 6 and PW 7 made no such allegation that the accused in fact intended cause death and only because of resistance made by the PW 2 they narrowly escaped the death. 19. In order to amount to an attempt to murder, the attempt must be of such that if not prevented or intercepted it would be sufficient to cause death of the victim. In order that a person may be guilty of an attempt to murder, the following two ingredients must be present (a) an intention or knowledge for committing murder (b) the doing of an act towards it. For the purpose of section 307 IPC what is material is the intention or knowledge, nor the consequences of the actual act done for the purpose of carrying out the intention. The offence under Section 307, IPC is a very serious offence and it requires the same very factors to be proved as are needed to prove an offence under Section 302, IPC except that in this case the act falls short of the death of the deceased which is necessary under Section 302, IPC the other like under Sections 324, 326, 326 etc. In both the cases, injuries may be there. There may be existence of motive or intention or knowledge one the part of the wrong doer. In both the cases, injuries may be there. There may be existence of motive or intention or knowledge one the part of the wrong doer. Care has, therefore, to be taken that, in such cases there may not be wrong application of the evidence looking to the serious consequences following from such an error; as the penalty prescribed under them very to great extent. 20. In the given facts and circumstances, the present case as has been discussed above, though the two victims/injured persons sustained grievous injuries on their persons but it appears that the accused appellant had no intention to cause death of those persons to constitute an offence U/S 307 IPC. Accordingly, the order of conviction U/S 307 IPC is hereby set aside. On the other hand, the accused appellant is already behind the bars since more than 1½ years and considering all matters on record, the sentence of the accused person is reduced to the period already undergone by the accused appellant. The impugned order of conviction and sentence is modified to the extent as indicated above. 21. The appeal is partly allowed as aforesaid, return the LCR forthwith with a copy of the judgment to the Court below. 22. I appreciate the valuable assistance rendered by Mr. S.K. Agarwal, Amicus Curiae in conducting the case and accordingly an amount of Rs.7500/- be paid to him for his remuneration by the Legal Services Authority, Gauhati High Court, Guwahati.