JUDGMENT : 1. This appeal is filed under Section 374(2) of Cr.P.C. challenging the judgment of conviction passed in S.C.No.53/2008 on the file of the Principal District and Sessions Judge, Dharwad dated 01.04.2010, convicting the appellant for the offence punishable under Sections 324, 307 and 504 of IPC. 2. The accusation made in the charge sheet is that the appellant married PW.7 Smt. Mallavva about 11 years prior to the incident and both of them were residing together and in the wedlock they were having three children. During the 11 years of living together, this appellant did not allow his wife PW.7 to visit her parents house even once. In one occasion when the father of PW.7 requested the accused to send his daughter to his house, the accused assaulted and sent him back. According to the prosecution, about 6 months earlier to the incident also the brother-in-law of the appellant i.e. brother of PW.7 got married in Sampagaon in Belagavi District. The appellant, his wife PW.7 and their 3 children came to the marriage function directly from Belavadi and further alleged, at that time, the accused picked up quarrel with his wife PW.7 and assaulted her and also gave threat to her life. Therefore, the parents of the PW.7 brought her to their house at Garag Village and since then, PW.7 was residing with her parents at Garag and accused had lodged the complaint before the Alnavar police alleging abduction of his wife by her parents. But at the mediation of Alnavar police, the parents of PW.7 agreed to send her back after few days. In the meanwhile, on 23.12.2005 at about 2.00 p.m., the accused came to the house of his in-laws situate in Srikanth Nagar lane in Garag Village and started abusing his wife and forced her to return back immediately. It is alleged that when mother-in-law of the accused asked the accused to come in and wait till the arrival of her husband, the accused appellant is stated to have removed a chopper (Koita) which was hidden at the back and assaulted PW.6 i.e., his mother-in-law on her shoulder and back of her head. Thereafter, with the same chopper, he assaulted his wife on her head, near the left ear, left shoulder and on the right fore-arm. As a result of this incident, both of them have sustained severe injuries. Thereafter, with the same chopper, he assaulted his wife on her head, near the left ear, left shoulder and on the right fore-arm. As a result of this incident, both of them have sustained severe injuries. On hearing the screaming sound the neighbours i.e. Thimmanna, Shekhappa, Venkanna and Yellavva who have been examined as PWs.9, 11, 13 and 12 respectively rushed to the spot and accused fled away from the place in which motorcycle he came. Hence, the complaint was filed and police after investigation have filed the charge sheet against the appellant. 3. The prosecution in order to prove the allegations made in the charge sheet has relied upon the evidence of PWs.1 to 20 including the injured persons and the appellant did not choose to lead any defence evidence. The prosecution relied upon the documents Exs.P1 to 24. The accused only got marked Ex.D1 copy of the spot panchanama and prosecution relied upon MOs.1 to 13. The Court below after hearing the arguments of both the sides, convicted the appellant. Being aggrieved by the judgment of conviction and sentence, the appellant in this appeal has contended that the Court below erred in passing the judgment of conviction and sentence. 4. The main contention of the appellant in this appeal is that, the trial Court has committed a grave error convicting for all the offences and trial Court has not at all made any efforts to scrutinize the oral evidence on record and it has only considered the evidence helpful to the prosecution, whereby it has leading to miscarriage of justice. The main contention is that there is a delay of about 2 years 6 months in filing the charge sheet and also failed to ascertain the truth as to why the MO Nos.1 to 7 were sent to forensic science laboratory, Belagavi on 26.09.2007, after lapse of 1 year 9 months. The trial Court has failed to appreciate the statement of PWs.6 and 7 recorded on 24.12.2005, but as per Ex.P6 which is requisition to the doctor states that the statement of said witness has not been recorded prior to 26.12.2005. Ex.P6 to be considered, then the statement of PWs.6 and 7 alleged to have been recorded on 24.12.2005 are all created and concocted. Ex.P6 to be considered, then the statement of PWs.6 and 7 alleged to have been recorded on 24.12.2005 are all created and concocted. The Court below misunderstood the fact that the appellant has no intention or motive to commit such an offence and trial Court has failed to evaluate the best evidence of acquittal on record and recovery has also not been proved in the absence of independent evidence and the alleged recovery was made after the lapse of 24 days. The Court below has also exceeded its powers by awarding Rs.1,60,000/-as fine which is in violation of Section 29 of Cr.P.C. The trial Court has also erred in passing sentence of imprisonment in default of fine to the extent of one year is also in excess and in violation of the powers conferred under Section 30 of Cr.P.C. For having contended all these grounds, the appellant has sought for an order of acquittal. 5. Learned counsel appearing for the appellant in his arguments contended that the Court below failed to appreciate the material on record and only screened the evidence available in favour of the prosecution and failed to take note of the answer elicited in the cross-examination. Further contended that the victim PW.7 presently residing along with this appellant from last five years and they are happily leading their marital life and this Court has to take lenient view since he was in custody for a period of two months during the course of trial and the same can be considered and PW.7 is also kept present before the Court at the time of addressing the arguments in order to confirm and re-affirm that PW.7 is residing along with the appellant only. 6. Per contra, learned High Court Government Pleader in his arguments contends that the Court below has given the definite finding with regard to the incident is concerned and also relied upon the evidence of PWs.6 and 7, who have been examined and they are the injured witness and also other witnesses PWs.11, 12 and 13 who came to the spot immediately after the incident when PWs.6 and 7 were screamed at the spot. Both the ocular and documentary evidence supports the case of the prosecution and there are no any grounds to interfere with the order of the Court below. Both the ocular and documentary evidence supports the case of the prosecution and there are no any grounds to interfere with the order of the Court below. However, he did not dispute the fact that PW.7 the injured is residing along with appellant and leading her marital life with the appellant. 7. Having heard the arguments of the learned counsel for the appellant and learned Government Pleader appearing for respondent, this Court has to examine whether the Court below has erred in convicting the appellant for the offence alleged against him under Sections 324, 307 and 504 of IPC and it requires an interference. 8. The main contention of the appellant is that the Court below has failed to consider the fact that when an offence is invoked under Section 307 of IPC, there must be an evidence that the appellant was having an intention to take away the life and the prosecution is required to prove that the act committed by the appellant irrespective of the result given was done with an intention or knowledge and under the circumstances mentioned in the said Section in the case on hand there was no such intention or knowledge of the accused and failed to appreciate the same. On perusal of 313 statement of the appellant herein he did not dispute the fact that he went near the house but only he denied that he did not go to the house of the injured persons on the motorcycle and also he did not dispute the fact that PW.7 was residing at Garag Village, but in his 313 statement he contends that they were living cordially but the brothers of PW.7 took her to their house. But he categorically says that he did not cause any life threat and he denied other incriminating evidence and in his 313 statement also he categorically says that if his wife is sent along with him, he is ready to take her back. 9. The prosecution has relied upon both the ocular and documentary evidence and particularly in respect of ocular evidence of PWs.6 and 7 who are the injured persons and also the evidence of PWs.11, 12 and 13 who rushed to the spot immediately after hearing the screaming sound. 9. The prosecution has relied upon both the ocular and documentary evidence and particularly in respect of ocular evidence of PWs.6 and 7 who are the injured persons and also the evidence of PWs.11, 12 and 13 who rushed to the spot immediately after hearing the screaming sound. On perusal of the judgment of the lower Court, the lower Court not only accepted the evidence of PWs.6 and 7 and also considered the evidence of the doctor who has been examined as PWs.10 and 15 and also relied upon the wound certificate at Ex.P11 in respect of PW.7 Smt. Mallavva and also the wound certificate of PW.6 Smt. Thimmavva which has been marked as Ex.P12 and also considered the medical opinion about the weapon which is marked as Ex.P13. I have already pointed out that the appellant did not dispute the fact that he went near the house of PWs.6 and 7 and only evidence has to be gathered with regard to whether with an intention to take away the life, he went near the house of PWs.6 and 7. On perusal of the evidence of PW.7, who is wife of the appellant, she reiterated the contents of the complaint and also the manner in which the incident of assault was taken place and so also PW.6 also reiterated her statement. During the course of cross-examination PW.7, it was suggested that when she was living along with him, he was treated her with love and affection and the same has been denied and also admits that she has filed a petition for dissolution of marriage. The main defense of the appellant is that she was tutored by PW.1 and her parents to deny the material questions deliberately and the same is denied. 10. On perusal of the discussion made in the judgment of the trial Court regarding intention to take away the life has not been considered, the evidence of PW.7 is not specific that with an intention to take away the life, he assaulted her. But says that he abused her in a filthy language and started to assault her mother and her and first he assaulted the mother. While convicting the accused, it is the duty cast upon the Court, first muster the evidence with regard to the intention to take away the life. But says that he abused her in a filthy language and started to assault her mother and her and first he assaulted the mother. While convicting the accused, it is the duty cast upon the Court, first muster the evidence with regard to the intention to take away the life. No doubt, PWs.6 and 7 have sustained injuries and also the doctor has opined those injuries were inflicted with the weapon of chopper and mere sustaining injuries is not enough to convict the accused appellant for the offence punishable under Section 307 of IPC and nowhere both PWs.6 and 7 have stated that this appellant while abusing them abused that he will not leave these two persons and with that object, he assaulted both of them and PWs.6 and 7 did not dispute the fact that the appellant came and demanded to send her back and PWs.6 and 7 categorically says that husband of PW.6 and father of PW.7 was not in the house and called him inside the house and told him to wait till the arrival. Hence, it is clear that appellant came back to the house of PWs.6 and 7 in order to take PW.7, to his house and complaint also discloses that the appellant gave complaint of abduction on PW.7 and matter is mediated and the police agreed to send her back and hence he came to take her back. In his 313 of Cr.P.C. statement he categorically stated he is ready to take her back and when such being the evidence before the Court, the trial Court ought not to have convicted the accused for the offence punishable under Section 307 of IPC. No doubt, while invoking Section 307 of IPC need not necessary that the victims have to sustain injuries, but in the case on hand, they have sustained injuries and mere sustaining of injuries are not enough and there must be an intention and knowledge that if such injury is inflicted, take away the life and very inflicting of such injury is with an intention to take away the life and this aspect has not been considered by the Court below in order to invoke Section 307 of IPC. 11. 11. For having taken note of the evidence available before the Court i.e. evidence of PWs.6 and 7 and evidence of the doctor, no doubt both of them have sustained injuries and wound certificates which are marked as Exs.P11 and 12 discloses the nature of injuries and having taken note of the nature of the injuries and the evidence of PWs.6 and 7, particularly who are the victims and other witnesses PWs.11, 12, 13 and 14 who rushed to the spot immediately after the incident categorically deposed that they came to the spot immediately after the incident. I do not find any reasons to set aside the judgment of the lower Court for the other offences with regard to Sections 324 and 504 of IPC but only the conviction in respect of the offence punishable under Section 307 of IPC is not sustainable in the absence of intention and knowledge and with an intention and knowledge, he inflicted the injuries, it is clear that the dispute between the appellant and PW.7 is in connection with matrimonial dispute and I have discussed that, when he came near the house of PWs.6 and 7 he demanded to send her back to matrimonial home and same was refused. The incident was taken place and hence the very finding of the Court below is in respect of the offences under Section 307 of IPC, it requires interference of this Court. Hence, the judgment and conviction of sentence is requires to be modified and conviction for the offences punishable under Section 307 of IPC requires to be set aside. 12. Now regarding sentence is concerned for the offences punishable under Section 324 and 504 of IPC. On perusal of the orders of the lower Court, the Court below while sentencing the accused for the offence under Section 324 of IPC, sentenced to undergo Rigorous Imprisonment of six months and in respect of offence under Section 504 of IPC, sentenced him to undergo Rigorous Imprisonment for six months. Further it is observed that, the lower Court by invoking Section 428 of Cr.P.C. the period of custody undergone by the accused as under trial prisoners shall be given set off. The order sheet of the lower Court discloses that he was arrested on 16.01.2006 and he was in custody till 04.03.2006 almost he was in custody for a period of 47 days. The order sheet of the lower Court discloses that he was arrested on 16.01.2006 and he was in custody till 04.03.2006 almost he was in custody for a period of 47 days. Having taken note of the fact that PW.7 rejoined the matrimonial house which has been confirmed during the course of arguments and PW.7 also appeared before this Court and made a statement that since from last five years she is staying with the accused appellant, I am of the opinion that it is fit case to set-off the sentence since he was in custody for 47 days during the trial and release the accused appellant. The very object of criminal jurisprudence and also in order to punish the guilty person and he was in custody and the same can be set-off in view of the changed circumstances and new development that PW.7 is united with the appellant. 13. In view of the discussions made above, I pass the following; ORDER The appeal is allowed in part. The conviction and sentence in respect of offence under Section 307 of IPC is set aside. The judgment of conviction in respect of offence punishable under Sections 324 and 504 of IPC is confirmed. The appellant was in custody for a period of 47 days and hence the same is set off by invoking Section 428 of Cr.P.C. The bail bond executed by the appellant is cancelled.