JUDGMENT & ORDER : Heard Mr. A Khaleque, learned counsel for the appellant and Mr. P S Lahkar, learned Additional Public Prosecutor. None appears for respondent no.2. 2. Prosecution case in brief is that on 6.3.2012 at about 5:45 PM, Mukut Ali armed with a dao entered the house of Amir Hussain alias Lora and gave several cut blows to him resulting severe injuries on his person. Hearing his hue and cry neighbouring people arrived and he was immediately taken to a nearby hospital for treatment then to Gauhati Medical College Hospital. On being informed about the matter, the sister of the injured Smt. Aklima Begum lodged an FIR with the officer-in-charge of Nagaon PS and also stated that the accused took away Rs 2 lakh from the house of the injured after the incident. Based on the said FIR Nagaon PS case No. 321/2012 u/s 448/326/307/379 of the IPC was registered and later the accused also surrendered before the police when he was arrested. 3. During the course of investigation the IO visited the place of occurrence, seized a dao from the possession of the accused, collected the injury report and after completion of investigation submitted charge sheet against the accused u/s 448/326/307 of the IPC. The offence being triable by the learned Sessions Judge the case was committed to him. The learned trial court after hearing both parties framed charges u/s 448/326/307/387 of the IPC and the accused denied the charges Prosecution examined thirteen witnesses in support of the charge and the defence also examined three witnesses. Accused was examined u/s 313 of the CrPC, and at the conclusion of trial the learned trial court held the accused guilty u/s 448/326/307 of the IPC and acquitted him of the charge u/s 387 of the IPC on benefit of doubt and sentenced him to r/i for one year u/s 448 of the Code and r/i for five years with a fine of Rs 5,000 and in default to r/i for one year u/s 326 of the IPC and r/i for seven years with a fine of Rs 5,000 and in default to r/i for one year u/s 307 of the IPC with further direction that the fine amount if realised be paid to the injured Amir Hussain as compensation. 4. Assailing the judgment and the order of conviction and sentence the accused has filed this appeal. 5. 4. Assailing the judgment and the order of conviction and sentence the accused has filed this appeal. 5. Heard arguments advanced by both parties and perused the LCR. 6. The contention raised by learned counsel for appellant is that there being no eye witness to the occurrence and no immediate neighbour being examined by the investigating officer the presence of the witnesses who were examined in this case is very much doubtful. Learned counsel also tried to impress upon the court to say that the testimonies given by the witnesses are contradictory regarding the time as and when they appeared at the spot with the testimony of the injured. Further it is argued that the learned trial court has erred in law in convicting the accused u/s 307 of the IPC as the evidence showed that the accused returned on his own from the spot which indicates that he had no intention to kill the injured. It is pointed out that the injured was alone at the time of the occurrence and the accused was in a position to kill the injured had he intended so. 7. Learned Additional Public Prosecutor Mr PS Lahkar has strenuously opposed such contention of learned counsel for appellant that there is no contradiction at all among the witnesses and the victim regarding the time and the occurrence. The presence of witnesses at the spot being the nearby people is not at all doubtful as contended by learned counsel for appellant. As regards the intention to cause death of the injured, the evidence of the injured is relevant as he said that the accused with a heavy sharp weapon(dao) after inflicting several injuries to different parts of his body also tried to inflict cut blow on his neck which he could somehow fend off. Accordingly it is contended that the learned trial court has properly appreciated the evidence on record and there is no infirmity in the impugned judgment. 8. I have considered the rival submissions and perused the evidence on record. 9. The evidence of the injured being the primary evidence let us discuss the same. 10. According to injured Md Amir Hussain/PW6, on 6.3.2012 in the evening hours at about 5-6 PM when he returned home from the market he found the accused standing in front of his gate. 9. The evidence of the injured being the primary evidence let us discuss the same. 10. According to injured Md Amir Hussain/PW6, on 6.3.2012 in the evening hours at about 5-6 PM when he returned home from the market he found the accused standing in front of his gate. After asking the accused as to where he is going to, PW6 went to his room and the accused following him entered his room and dealt dao blow on his head and he fell on the floor. Thereafter the accused pointed the dao blow at his neck and then PW 6 raised his hand to save from the blow but the dao blow fell in his hand resulting in serious injury on his head and somehow he raised hue and cry while lying in a pool of blood on the floor with cut injuries in his hand, legs, etc and neighbours arrived and the accused went away with the dao. The local people took him to Dispur Hospital where he had been in the ICU for several days. After one month of the occurrence his right hand was operated for the injuries he sustained. He further stated that he could not walk normally and was unable to move the wrist of the right hand. 11. Supporting the evidence of PW6, PW2 Najmol Hussain, PW3 Askar Ali and PW5 Abdul Samad all of them stated that on the day of occurrence at about 5:30 PM while they were returning from the market hearing hue and cry in the house of PW6 they went there and saw the accused Mukut Ali coming out with a blood-stained dao in his hand and entered his house adjacent thereto. They immediately entered the house of PW6 and found the injured lying on the floor in a pool of blood with cut injuries in his hand, legs etc. The injured was crying and reported that the accused had dealt cut injuries to him. Although PW2 is a related witness to the injured, PW3 and 5 are independent witnesses. All of them immediately took the injured to the hospital for treatment. No contradiction, omissions etc has been proved of any of the witnesses so as to falsify their evidence except giving some mere suggestion the defence could not scattered their evidence. 12. Although PW2 is a related witness to the injured, PW3 and 5 are independent witnesses. All of them immediately took the injured to the hospital for treatment. No contradiction, omissions etc has been proved of any of the witnesses so as to falsify their evidence except giving some mere suggestion the defence could not scattered their evidence. 12. Although PW4 Bulumoni Hussain, PW7 Nazrul Islam, PW9 Ashif Ali, PW10 Md Kamal Hasan and PW12 Bipul Hussain are not the eye witnesses but they arrived at the spot immediately after hearing commotion that the accused Mukut Ali had cut PW6 and they rushed to the house of the injured and found the PW6 lying on the floor in a pool of blood with cut injuries in the back of the head, leg and hands. The injured told them that accused has inflicted the cut injuries. They arranged for treatment of the victim. Initially the victim was taken to BP Hospital at Nagaon and then he was referred to GMCH for urgent treatment. The evidence of a large number of witnesses has fully supported the facts of the prosecution without leaving any scope for doubt about their presence at the spot. All of them being the neighbours of the injured have given positive evidence of the incident. Mentioning of time accurately by all the witnesses cannot be expected but the thing remains that it was just the evening hours when the occurrence took place and three of the witnesses have clearly found the accused coming out of the house of the injured with a blood-stained dao in his hand. It is noteworthy that the injured was taken to the hospital for treatment by the witnesses themselves. In such premise the submission of learned counsel for appellant about non-examination of neighbouring witnesses has no force. 13. The wife of the accused Ms Pabina Begum was examined as PW8 who stated that the house of the injured was adjacent to their house and hearing hue and cry in the house of the injured she came to know that her husband had caused injury to PW6. In cross-examination she made a different reply that on the date of the occurrence the injured came to their house and tried to outrage her modesty and she told the matter to her husband/accused. 14. In cross-examination she made a different reply that on the date of the occurrence the injured came to their house and tried to outrage her modesty and she told the matter to her husband/accused. 14. The informant Akima Begum as PW1 has stated the same fact as given in the FIR that she was informed about the incident over telephone that the accused had assaulted her brother/PW6 in his own house and he was taken to a hospital at Guwahati for better treatment. She went to meet her brother at Dispur Nursing Home at Guwahati and on being asked the injured told that accused Mukut Ali had cut him with a dao and taken away an amount of Rs 2 lakh. She filed the FIR accordingly. Of course she is not an eye witness to the occurrence. 15. Insofar as the evidence of Dr Krishna Bora/PW11 who attended on the injured at the BP Hospital at Nagaon in connection with the present case, on examination of the injured, he found the following injuries in the body of the injured: “(1) Deep cut injury over right knee joint size 8x4x4 cm. (2) Deep cut injury over left leg, size 6x3x3 cm. (3) Deep cut injury over left forearm, size 5x4x4 cm. (4) Deep cut over right forearm near elbow, size 5x3x2 cm. (5) Deep cut over right forearm near elbow, size 5x3x2 cm. (6) Cut injury in skull, size 4x3x2 cm. It is further deposed that the injured had sustained injuries on different parts of his body i.e. right knee joint, left leg, left forearm, right forearm and skull. The injuries are grievous in nature and caused by sharp cutting weapon. It is also opined that the injured was in shock haemorrhage and referred to GMCH for needful treatment urgently. Ext.2 is the medical examination report given by him and Ext.2(i) is his signature.” 16. Obviously the medical report also supported the case of prosecution regarding the injuries sustained by the injured. 17. Next, the evidence of IO Maheswar Basumatary/PW13 is formal in nature, who stated all about the receipt of FIR, preparation of sketch map at the time of investigation, examination of witnesses, etc. It is stated that the accused surrendered before the Nanai O/C with the dao and was examined accordingly. No material contradiction of the witnesses is proved through the IO. 18. It is stated that the accused surrendered before the Nanai O/C with the dao and was examined accordingly. No material contradiction of the witnesses is proved through the IO. 18. It is to be noted that the accused examined himself as witness and also adduced two other witnesses in his defence denying the allegations made in the FIR. Accused as DW1 stated that he never surrendered before the IO nor did assault the injured nor did he take the alleged money. It is further stated that he found the injured Amir Hussain with his wife in a compromising position. As his wife made hue and cry and as soon he arrived the accused fled away and then he informed the matter to the local people. It is stated that as he complained to the public against the injured, the present case has been filed. DW2 Ms Nasin Begum and DW3 Md Sadarmet Ali also stated that as the injured/PW6 tried to outrage the modesty of the wife of the accused Mukut Ali and as the same was complained to the local people, the false case has been filed against him and accused never surrendered before the police. 19. Though the defence has projected a story, the same has no force as no FIR was filed against the injured for such serious allegation. No married woman will remain idle without taking the recourse of law if such attempt to rape is made by another person. Similarly the denial of the accused about his surrender is also of no avail in view of the evidence of the IO which is also supported by the other evidence on record. Denial of the allegation/facts is of no consequence unless is substantiated by requisite evidence. As such the defence evidence is liable to be discarded. 20. From overall appreciation of the evidence on record it is found that the evidence of three witnesses i.e. PW2, 3 and 5 and PW6 is enough to implicate the accused in the offence charged with as he was found returning from the house of the injury with a blood-stained dao in his hand and the injured was found lying behind with serious injuries. The other witnesses who arrived immediately after occurrence also reported by injured that it was the accused who inflicted him the injuries. The other witnesses who arrived immediately after occurrence also reported by injured that it was the accused who inflicted him the injuries. The fact that the injured sustained grievous injuries on different parts of his body is also corroborated by the IO and all other remaining witnesses also lent support to the entire facts and circumstances of the case leaving no scope to belie the testimony of the injured. Nothing has surfaced to hold that the witnesses have any sort of hostility or enmity with the accused for false implication. Their evidence is clear and convincing and not destructive to the prosecution case. They arrived at the spot within a few minutes of the occurrence. The FIR was also filed without much delay 21. As regards the contention of learned counsel for appellant that the offence u/s 307 of the IPC is not proved, it is to be noted that the accused with a heavy sharp weapon like dao has attempted to inflict cut blow to the neck of the injured, to which he resisted by raising hand as a result of which the targeted portion was missed. Had the injured not succeeded to resist the dao blow he could have been killed. In order to amount an attempt to murder, the act attempted must be such, if not prevented or intercepted, it would sufficient to cause death of the victim. The accused has the knowledge that such cut blow on the vital part of the body i.e. neck will be enough to cause death of the victim. The Section 307 IPC clearly contemplates an act which is done with the intention and knowledge of causing death but which fails to bring about the intended consequences on account of the resistance/intervention. In this backdrop the offence u/s 307 of the IPC is made out. In view of the medical report about grievous injuries sustained by the injured the offence u/s 326 of the IPC is also well established. The intention of the accused while entering the house of the injured to commit the offence of assault rendered him liable for the offence u/s 448 of the IPC. The learned trial court has properly appreciated the entire material on record and I find nothing to interfere with the order of the learned trial court and accordingly the same is hereby upheld. The learned trial court has properly appreciated the entire material on record and I find nothing to interfere with the order of the learned trial court and accordingly the same is hereby upheld. Learned counsel for appellant, however, urged upon this court for some consideration in view of the long detention of the accused since the date of the judgment on 30.9.2016 and also the earlier detention for over 3 months during the course of investigation. 22. I have given anxious consideration to the submissions made and is of the considered opinion that although the defence could not prove the plea of attempt to sexual assault to his wife by the injured, this is perhaps the reason that prompted the accused to give such blows out of temptation otherwise there was no enmity between them, being the neighbours. The accused is a married man and remained behind bars for a considerable period and facing a trial from the confinement is hard for a sane person who has no previous antecedents. 23. Taking into account all above while upholding the conviction the sentence under Sections 326 and 307 of the IPC is reduced to the period already undergone by the accused and the fine amount will remain the same. 24. Accordingly the appeal is partly allowed to the extent indicated above. Send down the LCR.