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This appeal is directed against the judgment of conviction and order of sentence rendered by the trial Court in S.C.No.9/2008 dated 24/26.08.2010, whereby the accused is convicted for the offence punishable under Sections 307 r/w 511 of IPC and 120-B of IPC. The appellant said to be arraigned as accused No.1 is sentenced to suffer an imprisonment for a period of two years for the aforesaid offences.

2. The factual matrix of the case as per the charge-sheet laid by the I.O. is that on 16.08.2006, the appellant-accused No.1, along with accused No.2 Pandu Pai @ Panduranga Pai @ Praveen Pai, had agreed to take away the life of CW-2 Nagesh Devadiga @ Pitti Nagesh for a ransom of Rs.2,00,000/-, because of some previous enmity. Accused No.2 had promised to pay the said ransom to accused No.1, but during the course of trial, accused No.2 is reported dead and therefore the case against him stood abated. As on the aforesaid date at around 5 p.m., at Badagubetta Village near Kukkikatte Bus Stop, accused No.1 was present and waiting for CW-2 Nagesh Devadiga @ Pitti Nagesh as he was hatching a plan with accused No.2 to take away the life of CW-2. A photograph of CW-2 was found in the possession of accused No.1, so also a sword which was concealed by accused No.1 in his back. On suspicion and also on information given by PW-4 Anwar, police swung into operation in apprehending this accused. Subsequently, on enquiry with this accused relating to concealment of sword, which is marked as MO-1, he did not give any proper explanation. Therefore he was taken into police custody and on his personal search, they found a purse, on currency notes of Rs.100/-, photo of CW-2 Pitti Nagesh, which are marked as MO-2, MO-3 and MO-4, respectively. One paper containing printed letters 'SKKK Fruits' is marked as MO-5 and MO-6 is a photo in a cover. These are all the material objects which were found in possession of the accused which have been seized by the police in the presence of PW-1, PW-4 and PW-8 who is the PSI who filed suo moto complaint as per Ex.P6. Based on his complaint, crime came to be registered by recording an FIR as per Ex.P7. The said material objects which were seized by PW-8, the I.O. in part, during the course of investigation, have been subjected in PF No.112/06 and PF No.17/07. Subsequent to recording the FIR, the case has been handed over to another I.O, PW-12 who investigated the case and laid the charge-sheet against the accused before the Committal Court.

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statement. The portion of the statement has been got marked at Exs.P4 and P5. Therefore, the evidence of PW-7 which is contradictory to the evidence of PW-1, PW-4 and PW-8 who filed the suo moto complaint as per Ex.P6 and based upon his complaint, the FIR has been registered as per Ex.P7 and the case has been taken up for further investigation by PW-12 who has laid the charge-sheet against the accused.

8. PW-9 Rosario D'Souza, PW-10 Head Constable and PW-11 ASI were examined on behalf of the prosecution. Therefore, their evidence is required to be appreciated in a greater care and caution where the ingredients of the offences under Section 511 of IPC, that he made attempt to take away the life of CW-2 Pitti Nagesh, but did not succeed. But it is only a theory put forth by the prosecution in order to lay the charge-sheet against the accused, merely because MO-1 sword was found in his possession, so also other articles marked

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evidence has to be re-appreciated, so also the ingredients of Section 307 of IPC. If any hurt is caused to a person, then only an offence under Section 307 of IPC can be constituted, if not, it cannot be constituted. Section 511 of IPC is attempting to commit an offence. The offence under Section 307 of IPC itself is a penal provision of law, hence the question of attempting as noted in the charge-sheet under Section 511 of IPC, does not arise at all, unless having well founded theory with ingredient of the offence. Thus, the theory put forth by the prosecution by laying charge-sheet against the accused, is said to be only for a statistical purpose, it can be inferred.

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corroborative, positive, consistent and acceptable evidence to prove the guilt of the accused beyond all reasonable doubt.

15. Accordingly, I proceed to pass the following:

ORDER The appeal is allowed. The judgment of conviction and order of sentence dated 24.08.2010 passed by the Presiding Officer, Fast Track Court, Udupi in S.C.No.9/2008, convicting the accused-appellant herein for the offences punishable under Section 307 read with Section 511 IPC and Section 120-B IPC is hereby set aside. The accused is acquitted of the offences levelled against him. The bail bond if any, shall stand cancelled.