JUDGMENT : The present appeal has been preferred by the appellant – accused directed against the judgment of conviction and order of sentence passed by the Fast Track Court – III at Hospet in Sessions Case No.127/2009 dated 29.01.2011. 2. I have heard the learned counsel for the appellant and the learned Additional S.P.P. for the respondent – State. 3. The genesis of the case of the prosecution are that the complainant was working as a Teacher in High School. On 08.08.2009 in pursuance of the instructions given by the Head Master and one Bheema Naik, he was proceeding on his motorcycle to handover the cheque pertaining to his School to CAEO Office at Kenchammanahalli. When he came near Alur cross, his motorcycle got punctured. He was proceeding to garage to get the puncture repaired. It was at about 12:45 p.m. When he was going near the garage, accused came across on his bike, abused him in filthy language, as to why he has advised him and shouted that he is going to kill him and immediately thereafter, assaulted with iron rod on his head, back and caused bleeding injuries. Though complainant tried to escape from the said place, accused continued his assault with rod on his left shoulder, left thigh, right wrist. Complainant made a hue and cry. By hearing the same, one Nagaraj and Sharanappa came from nearby hotel and by noticing the same, he left the place. It is further contended that the accused used to tease girls and also used to give threat. Since complainant is a Teacher, he advised the accused and at that time also he shouted. Due to such animosity, accused assaulted the complainant with iron rod with an intention to take away the life of the complainant. Immediately he was taken to the Government Hospital and there, a statement of the complainant was recorded and a case was registered in Crime No.88/2009. Thereafter, after the investigation, the charge sheet was filed. 4. Learned Magistrate after taking into consideration the cognizance and after following the formalities, he committed the Court to the Sessions Court. Sessions Court took the cognizance and secured the presence of the accused and after hearing the learned Public Prosecution and the learned counsel for the accused, charge was prepared, read over and explained to the accused. Accused pleaded not guilty. Sessions Court took the cognizance and secured the presence of the accused and after hearing the learned Public Prosecution and the learned counsel for the accused, charge was prepared, read over and explained to the accused. Accused pleaded not guilty. He claims to be tried and as such, the trial was fixed. 5. In order to prove the case of the prosecution, the prosecution got examined 10 witnesses and got marked 9 documents and 4 material objects. Thereafter, the statement of the accused was recorded by putting incriminating material as against him. Accused denied the same. He has not led any defence evidence nor got marked any documents. After hearing the learned Public Prosecutor and the learned counsel for the accused, the Court below came to the conclusion that the prosecution has proved the guilt of the accused under Section 307 of IPC and convicted the accused to rigorous imprisonment for four years and to pay fine of Rs.2,000/-with default sentence of three months. Challenging the legality and correctness, the appellant – accused is before this Court. 6. The main grounds urged by the learned counsel for the appellant – accused are that the judgment of conviction and order of sentence passed by the Trial Court is not sustainable in law. The Trial Court without there being any evidence, on surmises and presumption and assumption has come to a wrong conclusion and has wrongly convicted the accused. It is his further submission that P.Ws.2 and 3 are the interested witnesses and their testimony is not trustworthy and reliable. It is his further submission that the case of the prosecution is that the accused has assaulted with rod. But the injuries suffered by the complainant are incised and such wounds are not going to be caused with the weapon like M.O.1 – iron rod. Though the said material is placed on record, the Trial Court without considering the material has wrongly convicted the accused for the offence punishable under Section 307 of IPC. It is his further submission that the appellant accused was not having any intention to take away the life of the complainant. Even the evidence of P.Ws.2 and 3 goes to show that when he came and asked to go, without further delay he has immediately gone. That itself goes to show that he was not having any intention to do away with the life of the complainant. Even the evidence of P.Ws.2 and 3 goes to show that when he came and asked to go, without further delay he has immediately gone. That itself goes to show that he was not having any intention to do away with the life of the complainant. 7. It is his further submission that the complainant has deposed that the rod with which he has assaulted, had thrown at place of the incident. Subsequently, he has improved his version and stated that it was taken away by the accused. So in that context, the recovery of the rod at the instance of the accused is not acceptable. It is his further submission that though there is no ample material as against the accused, the Trial Court without proper appreciation and recording the proper finding has convicted the accused. On these grounds, he prayed to allow the appeal and to set aside the judgment of conviction and order of sentence. 8. Per contra, the learned Additional S.P.P. vehemently argued and submitted that the presence of the accused at the place of the incident has not been denied during the course of trial. It is his further submission that P.W.1 is the injured witness. P.Ws.2 and 3 are the eyewitnesses. They have been fully supported the case of the prosecution and their evidence is also corroborated with the evidence of P.W.10 – Doctor, who examined and given opinion, as per Ex.P-8. It is his further submission that the nature of the injuries and the nature of the weapon and the opportunities which has been used by the accused, if they are taken into consideration, they attract the ingredients of Section 307 of IPC. The rod which has been used for the purpose of commission of the offence has been recovered at the instance of the accused. If on perusal of all the evidence which has been produced before the Court, it clearly goes to show that with an intention to take away the life of the complainant, the accused has assaulted with rod and caused grievous injuries. The Trial Court after taking into consideration the said facts and circumstances, has come to a right conclusion and has rightly convicted the accused. There are no good grounds to interfere with the judgment of the Trial Court. The judgment of the Trial Court deserves to be confirmed. The Trial Court after taking into consideration the said facts and circumstances, has come to a right conclusion and has rightly convicted the accused. There are no good grounds to interfere with the judgment of the Trial Court. The judgment of the Trial Court deserves to be confirmed. On these grounds he prayed to dismiss the appeal. 9. I have carefully and cautiously heard the submissions made by the learned counsel appearing for appellant and the learned Additional S.P.P. for the respondent – State and perused the records including the Trial Court records. 10. In order to prove the case of the prosecution, the prosecution got examined 10 witnesses. P.W.1 is the injured complainant. In his evidence, he has deposed that he is working as a Teacher and as per the instructions of Head Master on 08.08.2009, he took the cheque in respect of desks supplied and started to proceed on his motorcycle and when he came near Alur cross, his motorcycle got punctured and he proceeded towards garage to get it repaired. At that time, accused came across and abused him in filthy language and told that he will not leave him. When the complainant was parking his motorcycle, at that time, accused assaulted with an iron rod on his head and left thigh and was uttering that he will not leave him. When he made hue and cry, at that time, P.Ws.2 and 3 came there and by seeing them, the accused went away along with the rod. He has also further deposed that as he used to tease the girls and used to threaten, he had advised him not to do so. With that animosity, he has assaulted him. This witness has also been cross-examined. During the course of cross-examination, the presence of the accused is not denied. Even during the course of argument, learned counsel for the appellant admits his presence and the incident. 11. P.Ws.2 and 3 are the eyewitnesses to the alleged incident. They have deposed that at about 11:30 a.m. they were in the hotel and they heard hue and cry. Immediately they went there and at that time, the accused was assaulting the complainant and when they said to leave him, the accused left and went on his motorcycle. Thereafter, they saw that the complainant had suffered injuries on his head, shoulder, thigh and one Manjunath took the complainant to the Hospital. Immediately they went there and at that time, the accused was assaulting the complainant and when they said to leave him, the accused left and went on his motorcycle. Thereafter, they saw that the complainant had suffered injuries on his head, shoulder, thigh and one Manjunath took the complainant to the Hospital. 12. P.W.4 is the recovery mahazar of Pancha of the rod i.e., Ex.P-4. He has not supported the case of the prosecution. He has been treated as hostile. P.W.5 is also recovery mahazar panch of the iron rod. In his evidence, he has deposed that the Police called him at about 05:00 p.m. and accused produced a rod, bringing it from a bush which was hidden and the same was seized by drawing a mahazar, as per Ex.P-4. P.W.6 is the spot mahazar Pancha to Ex.P-5. P.W.7 is the seizure mahazar pancha of the clothes of the injured, as per Ex.P-2. P.W.8 is the circumstantial witness. In his evidence, he has deposed that the complainant was working as an Assistant Teacher and on 08.08.2009 a cheque was given to the complainant and because of the galata, he did not give the cheque. Nothing has been elicited from the mouth of this witness so as to discard his evidence. P.W.9 is the Investigating Officer, who registered the case and after investigation, the charge sheet has been filed. 13. P.W.10 is the Doctor, who has treated the injured and has issued the wound certificate as per Ex.P-6. In his evidence, he has deposed that injured wasbrought to the hospital and he has given him treatment and he has suffered the following injuries: a. Deep incised and lacerated wound on the scalp at occipital region around 6cm length and 1½ cm length deep. b. Clinically fracture of proximal phalynx of right hand. c. Deep incised wound seen on cordial region measuring around 10 cm length 1½ cm deep. d. Incised wound seen on lateral aspect of left thigh, bleeding from the wound around 4 cm length. e. Huge haemotoma seen anterior aspect of left arm measuring around 21 cm x 5 cm size. f. multiple abrasions seen on face.” 14. He has further deposed that he has issued the wound certificate as per Ex.P-8. He has further deposed that if the treatment was not given quickly there was possibility of death. e. Huge haemotoma seen anterior aspect of left arm measuring around 21 cm x 5 cm size. f. multiple abrasions seen on face.” 14. He has further deposed that he has issued the wound certificate as per Ex.P-8. He has further deposed that if the treatment was not given quickly there was possibility of death. During the course of cross-examination, he has deposed that if a person falls on a hard substance, the injury caused may happen and other suggestions have been denied. 15. On close reading of the evidence which has been produced, the incident in question is not disputed and the presence of the accused is also not disputed. Under Section 307 of IPC what the Court has to see is whether the act irrespective of its result was done with an intention or knowledge that the said act is likely to cause or take away the life of the injured. Intent which is a state of mind can never be precisely proved by direct evidence, it can only be deduced or inferred from the other facts. The relevant facts which are to be considered for the purpose of proving of the offence under Section 307 of IPC, are i) the nature of the weapon used; ii) the place where injuries were inflicted; iii) the nature of the injuries caused; and iv) the opportunity available which the accused gets. 16. On close reading of the evidence of P.Ws.1 and 10, the Doctor who has given the treatment, that the injured has suffered the said injuries as mentioned above and injury Nos.1 to 3 are grievous in nature and there is a fracture of proximal phalynx of the right hand and deep incised wound seen on cordial region and lacerated wound scalp on occipital region. 17. As rightly stated above, the nature of the injuries and the place where the injuries have been inflicted, coupled with the intention of the accused has to be seen. Where the injured person was completely at the mercy of the accused causing the injuries and he was also assaulting with a rod which was available with him, yet he did not make the grievous assault on other parts, except on the scalp at occipital region and the said injury is 6 c.m. length and 1½ c.m. in length deep. 18. 18. As could be seen from the evidence of P.Ws.2 and 3, when they came and told that “leave Jaffar” and immediately he left and went away from that place. Under such circumstances, if the accused was having an intention to cause the death and was also holding a rod, without further assault, he left the place. Then under such circumstances, the said act of the accused appears to be not having any intention to done away with the life of the complainant – injured. If likely he was intending to done away with the life of the complainant – injured, then under such circumstances, only on simple say of P.Ws.2 and 3, he could not have left the place and it is clear that the accused was not having any intention to take away the life of the complainant – injured. 19. In that light, I am of the considered opinion that though the prosecution has proved the guilt of the accused, but the offence is not under Section 307 of IPC, but it will fall within the purview of Section 326 of IPC. Therefore, the conviction under Section 307 of IPC is set aside and the accused is convicted for the offence punishable under Section 326 of IPC. The Trial Court has convicted the appellant – accused and sentenced to undergo rigorous imprisonment for a period of four years and to pay fine of Rs.2,000/-. 20. At this juncture, learned counsel for the appellant submits that the appellant – accused is a student and he is a young man and he is having a bright future and if he is imprisoned for a period of four years, then his future career will be affected. It is the specific contention of the learned Additional S.P.P. that it is the duty of the court to impose adequate sentence, for one of the purposes of imposition of requisite sentence is protection of the society and a legitimate response to the collective conscience. In order to substantiate his contention, he relied upon the decision in the case of Sumer Singh vs. Surajbhan Singh and others reported in (2014) 7 SCC 323 , at paragraph 36 it has been observed as under: “36. Having discussed about the discretion, presently we shall advert to the duty of the court in the exercise of power while imposing sentence for an offence. Having discussed about the discretion, presently we shall advert to the duty of the court in the exercise of power while imposing sentence for an offence. It is the duty of the court to impose adequate sentence, for one of the purposes of imposition of requisite sentence is protection of the society and a legitimate response to the collective conscience. The paramount principle that should be the guiding laser beam is that the punishment should be proportionate. It is the answer of law to the social conscience. In a way, it is an obligation to the society which has reposed faith in the court of law to curtail the evil. While imposing the sentence it is the Court’s accountability to remind itself about its role and the reverence for rule of law. It must evince the rationalized judicial discretion and not an individual perception or a moral propensity. But, if in the ultimate eventuate the proper sentence is not awarded, the fundamental grammar of sentencing is guillotined. Law cannot tolerate it; society does not withstand it; and sanctity of conscience abhors it. The old saying “the law can hunt one’s past” cannot be allowed to be buried in an indecent manner and the rainbow of mercy, for no fathomable reason, should be allowed to rule. True it is, it has its own room, but, in all circumstances, it cannot be allowed to occupy the whole accommodation. The victim, in this case, still cries for justice. We do not think that increase in fine amount or grant of compensation under the Code would be a justified answer in law. Money cannot be the oasis. It cannot assume the centre stage for all redemption. Interference in manifestly inadequate and unduly lenient sentence is the justifiable warrant, for the Court cannot close its eyes to the agony and anguish of the victim and, eventually, to the cry of the society. Therefore, striking the balance we are disposed to think that the cause of justice would be best sub-served if the respondent is sentenced to undergo rigorous imprisonment of two years apart from the fine that has been imposed by the learned trial judge.” 21. I am conscious of the fact that the sentence must be befitting to the offence which has been committed by the accused and adequate sentence has to be given in this behalf. I am conscious of the fact that the sentence must be befitting to the offence which has been committed by the accused and adequate sentence has to be given in this behalf. But when the accused is said to be a student and he is having bright future, in that light, I am of the considered opinion that instead of convicting the accused for four years, if the fine amount is increased and the sentence is reduced, then it is going to balance and it will meet the ends of justice. 22. Taking into consideration the submissions and the peculiar facts and circumstances of the case, if the accused is convicted and sentenced to undergo imprisonment for a period of one year and liable to pay a fine of Rs.20,000/-, then under such circumstances, it will be adequate and cause of justice would be subserved in this regard. In the light of the discussions held by me above, the appeal is partly allowed. The judgment of conviction and order of sentence passed by the Fast Track Court – III at Hospet in Sessions Case No.127/2009 dated 29.01.2011 convicting the appellant – accused under Section 307 of IPC is hereby set aside. The appellant – accused is convicted for the offence punishable under Section 326 of IPC and he is ordered to undergo rigorous imprisonment for one year and he shall pay a fine of Rs.20,000/-and in default to undergo simple imprisonment for a period of six months. Out of the fine amount, an amount of Rs.15,000/-is ordered to be paid to P.W.1 on proper identification and acknowledgment. The Trial Court is hereby directed to secure the appellant – accused and issue conviction warrant as ordered above. Appellant – accused is also entitled to set off under Section 428 of Cr.P.C. for the purpose which he has already undergone being in judicial custody.