Judgment :- 1. This is an appeal against the judgment of the Sessions Judge of Kottayam in Sessions Case No. 36 of 1953 convicting the accused therein under Ss. 307 and 449 I.P.C., and sentencing him to undergo rigorous imprisonment for five years. The charge against the appellant was that at about 8.30 p.m. on the 5th May 1952 he attempted to cause the death of one Thommi Uthuppu Alias Uppayi, who was examined, as Pw.1 in the Sessions Court, by cutting him from behind with a chopper. The occurrence took place in a toddy shop at Chunkam, on the northern outskirts of the Kottayam town. According to the prosecution, at the time of the occurrence, Pw.1 was seated on a bench in the main hall of the toddy shop, which is a portico, drinking toddy and talking with the proprietor of the shop, Pw. 2 who was sitting on the floor in the same portico, a little to the west of Pw. 1, taking gruel which formed his supper. Pw. 6, Velu, the vendor who had brought toddy to Pw. 1, was sitting on a door-sill near Pw. 2 and another vendor, Kesavan, Pw. 7, was serving customers in the adjoining southern room. One John, a Police Constable on leave who was examined as Pw. 12 in the Committing Magistrate's Court and who died before the trial in the Sessions Court, was also sitting at another table in the portico drinking toddy in the company of a person known as Thaithara Mathan. The prosecution case is that, while Pw.1 was talking with Pw. 2, the accused suddenly came into the shop through the eastern door of the portico and cut Pw.1 with a chopper from behind and immediately turned back and ran away from the place. The cut was aimed at the neck, but it fell on the right cheek, tearing open that cheek to a length of 2 3/4 and causing the crown of the molar tooth on the lower jaw to be broken. Pw. 6 bandaged Pw. 1's wound, and after that Pw. 7 took him to the Kottayam District Hospital in a rickshaw. Receiving an intimation from the Hospital authorities that the injured man had been brought there, the Head Constable in charge of the Kottayam Town Police Station, Pw. 4, went to the hospital at about mid-night and recorded a first information statement from Pw. 1's wound, and after that Pw. 7 took him to the Kottayam District Hospital in a rickshaw. Receiving an intimation from the Hospital authorities that the injured man had been brought there, the Head Constable in charge of the Kottayam Town Police Station, Pw. 4, went to the hospital at about mid-night and recorded a first information statement from Pw. 1, and the case was subsequently enquired into by the Sub-Inspector in charge of the Kottayam Cusba Police Station, (Pw. 12) within whose territorial jurisdiction was the scene of occurrence. For the injury caused to him by the accused, Pw.1 was under treatment as an in-patient in the hospital till 31.5.1952, and the prosecution case is that from 5.5.1952 to 31.5.1952 he was unable to follow his ordinary pursuits. The accused pleaded not guilty and denied in his statement, made before the Sessions Court, that he had stealthily come into the shop and cut Pw. 1. The learned Sessions Judge found the prosecution case true and convicted the accused under S. 307 I.P.C. for attempting to murder Pw. 1, and under S. 449 I.P.C. for committing house trespass in order to commit an offence punishable with death; and for these convictions he sentenced the accused to undergo rigorous imprisonment for five years holding that it was not necessary, in the circumstances of the case, to pass separate sentences. 2. On behalf of the appellant it was contended in this court that the evidence relied upon by the Sessions judge for holding that it was the accused who cut Pw.1 and inflicted the injury on him is utterly unreliable and that in any view of the case the conviction under S. 307 I.P.C. is not sustainable and the accused could be convicted only under S. 326 I.P.C. The motive for the assault, according to the prosecution, was previous enmity, and some evidence was also adduced to prove this previous enmity. The learned judge believed the prosecution evidence regarding motive and found that there was bitter ill-feeling between Pw.1 and the accused and that it was on account of the ill-feeling that the accused made the attempt on Pw. 1's life. Objection was taken by the appellant's counsel to this evidence and finding also. 3. The learned judge believed the prosecution evidence regarding motive and found that there was bitter ill-feeling between Pw.1 and the accused and that it was on account of the ill-feeling that the accused made the attempt on Pw. 1's life. Objection was taken by the appellant's counsel to this evidence and finding also. 3. That Pw.1 sustained a cut on his right cheek on 5.5.1952 and that he was treated as an in-patient in the hospital from 5.5.1952 to 31.5.1952 for the injury caused to him by the cut and was unable during that period to follow his ordinary pursuits, are matters which were not disputed in this court. They are also sufficiently proved by the evidence of Pw. 3, the Medical Officer who treated him. Pw. 3 swears that Pw. 1 was taken to the hospital at about 10.30 p.m. on 5.5.1952 and that he had seen an antero-posterior incised wound right across the centre of the right cheek 2 3/4 " x 1/2" penetrating into the mouth and producing a vertical cut through the lateral aspect of the tongue 1/4' in length and 3/4 behind its tip. According to Pw. 3, this wound could be caused with a weapon like a chopper. Ext. C is the wound certificate issued by Pw. 3, and Ext. D is the letter he sent to the Inspector of Police on 31.5.1952 intimating the fact of Pw. 1's discharge from the hospital. Pw. 3 says further that on the day after Pw. 1's admission into the hospital it was also found that the crown of the molar tooth on his left jaw had been broken by the cut sustained by him. Both Pws.1 and 3 say that Pw.1 was under treatment as an in-patient in the hospital from 5.5.1952 to 31.5.1952 and that during this period Pw.1 was also unable to follow his ordinary pursuits. The learned Sessions Judge has believed Pw. 3's evidence, and we also see no reason to disbelieve the same, especially as it was not questioned by the appellant's counsel in this court. Therefore there is no doubt that on 5.5.1952 Pw.1 sustained a cut with a chopper or similar weapon on his right cheek, and that the cut had caused a long tearing injury which necessitated his treatment as an in-patient in the hospital for over 20 days. 4. Therefore there is no doubt that on 5.5.1952 Pw.1 sustained a cut with a chopper or similar weapon on his right cheek, and that the cut had caused a long tearing injury which necessitated his treatment as an in-patient in the hospital for over 20 days. 4. The witnesses who speak to the occurrence are Pws.1, 2, 6, 7 and 8 and 11. The learned Sessions judge has believed the evidence of Pws.1, 2, 6 and 7, and discarded the evidence of Pws. 8 and 11 as untrustworthy. Besides these witnesses, John referred to in paragraph 1 above, was also cited by the prosecution as a witness to prove the occurrence and he was examined as Pw. 12 in the Committing Magistrate's Court. He did not fully support the prosecution case; and since he died before the trial his deposition in the Committing Magistrate's Court has been exhibited as Ext. H in the Sessions Court. 5. From the evidence of Pws.1 and 6, it would appear that from about 6 months before the occurrence there was ill-feeling between the accused and Pw. 1, and that it started on account of Pw. 1's suspicion that the accused had stolen his purse. Pw.1 questioned the accused about this theft on two or three occasions, and as might be excepted there were heated exchanges of words on all these occasions. According to Pw. 1, about a couple of months before the occurrence, in Makaram 1127, the accused and three of his companions, including John who was Pw. 12 in the Committing Magistrate's Court and John's brother Lukkose, way-laid him once on the road, and during that incident Pw.1 and Lukkose also beat each other. Subsequently, Pw.1 and the accused met on two more occasions in the toddy shop at Chunkam, and on one of these occasions they actually came to blows and on the other they very nearly came to blows. Pw. 6 was present on both those occasions and separated them before any serious harm could be caused. The prosecution case is that it was on account of this feud that the accused attempted to murder Pw.1 on 5.5.1952. Regarding the occurrence on 5.5.1952, Pw. 1's evidence is as follows. Pw. 6 was present on both those occasions and separated them before any serious harm could be caused. The prosecution case is that it was on account of this feud that the accused attempted to murder Pw.1 on 5.5.1952. Regarding the occurrence on 5.5.1952, Pw. 1's evidence is as follows. At about 8.30 p.m. he came to Chunkam to change some currency notes for paying the wages of bandymen whom he had engaged for transporting timber to a house he was constructing near the Sacred Heart School, and after paying their wages, he went to the toddy shop for a drink and sat down on a bench in the portico. Pw. 6 brought the drink that he ordered. After taking a sip or two he put down the mug on the table, and while he was talking with Pw. 2 who was taking his gruel, some-one came behind him and cut him on the right cheek. He immediately covered the wound with his hand and looked back and saw the accused going out of the shop with a chopper in his hand. Pw. 6 ran up and bandaged his wound, and since he was feeling giddy Pw. 6 and others laid him down on the bench. Then they brought a rikshah and took him in it to the Kottayam District Hospital. Pw.1 also speaks to the nature of the injury sustained by him and to the period he was under treatment as an in-patient in the hospital. His evidence regarding the occurrence is fully corroborated by Pw. 2. PW. 2 could not see from where he was sitting the accused coming into the shop. Nor has he seen the actual cutting. While he was taking gruel and talking with Pw. 1, he suddenly heard a sound and a grating noise and heard Pw.1 crying out "I have been cut". On looking up he saw Pw.1 covering his right cheek with his hands and blood flowing from his cheek. He also saw the accused running out of the shop. Pw. 2 then asked his employees to fetch a car and take Pw. 1 to the hospital. According to Pw. 6, after he served toddy to Pw. 1, and while he himself was sitting on the door-sill near Pw. 2, he saw the accused suddenly coming into the shop through the eastern door and going near Pw. 1. Pw. 2 then asked his employees to fetch a car and take Pw. 1 to the hospital. According to Pw. 6, after he served toddy to Pw. 1, and while he himself was sitting on the door-sill near Pw. 2, he saw the accused suddenly coming into the shop through the eastern door and going near Pw. 1. He did not suspect anything untoward was going to happen and did not therefore give any warning to Pw. 1. Nor did he notice any weapon in the accused's hands at that time. The accused came to Pw.1 from behind without the latter noticing him and suddenly cut him with a long heavy knife and ran away from the place. Pw. 6 bandaged Pw. 1's wound with his own towel and sent Pw. 7 to an Advocate who was living about two furlongs away from the toddy shop, and then he himself went in obedience to Pw. 2's orders to fetch a motor-car for taking Pw.1 to the hospital. By the time he came back with the car Pw. 7 had returned with the Advocate and taken Pw.1 to the hospital in a rikshaw. Pw. 7 says that while serving the customers in the southern room he heard Pw.1 crying from the portico that he had been cut, and that he therefore ran to the portico. Pw. 7 then saw Pw.1 standing with his hands covering a bleeding wound on his cheek and the accused running away from the place and making good his escape through the eastern door. The facts that Pw. 6 sent him to the Advocate after bandaging Pw. 1's wound and that he returned shortly with the Advocate and took Pw.1 to the hospital in a rickshaw are also spoken to by Pw. 7. If the evidence of these witnesses is true there can be no doubt of the fact that it was the accused who cut and inflicted the injury on Pw. 1. 6. In Ext. H, John had said that when he was asking for toddy he heard a cry, and that on turning round he saw Pw.1 with a bleeding injury on his cheek. According to him, one of the vendors in the shop brought a cloth and bandaged Pw. 1's cheek. But he professed ignorance of the identity of the vendor who bandaged Pw. 1's wound, and said that he did not see Pw. According to him, one of the vendors in the shop brought a cloth and bandaged Pw. 1's cheek. But he professed ignorance of the identity of the vendor who bandaged Pw. 1's wound, and said that he did not see Pw. 6 in the shop on that day. John said further that Pw.1 said at the time that it was the accused who had cut him and that on hearing this statement he (John) went out into the courtyard for catching the assailant. But he did not see and was not able to catch any one. Relying on John's statement in Ext. H that he did not see Pw. 6 in the shop on the day of the occurrence it was contended by the appellant's counsel that Pw. 6 was not in the shop at the time of the occurrence and that his evidence that he saw the accused coming into the shop and cutting Pw.1 is false. It was also contended that Pws.1, 2 and 7 could not have seen the assailant making his escape after cutting Pw. 1, that the assailant must have been either John or Mathan and not the accused, and that the failure of the prosecution to call Mathan as a witness was a suppression of material evidence. 7. As pointed out by the learned Judge, Pw. 2 is a thoroughly respectable and disinterested witness. The judge was well impressed with his evidence. Both Pw.1 and the accused were his customers, and he had nothing to gain by taking sides with either the one or the other. His evidence is clear and definite that at the time he was taking his supper, Pw. 6 was sitting on a door-sill near him and that from where he was sitting Pw. 6 could see Pw.1 and the door leading into the portico from outside. According to Pw. 2, at the time of the occurrence there were two electric lights burning in the portico - one of 100 volts and the other of 40 volts. Pw. 2 has said further that after the occurrence Pw. 6 bandaged Pw. 1's wound and that he (Pw. 2) himself asked Pw. 6 to fetch a motor-car for taking Pw.1 to the hospital. In the light of this evidence of Pw. 2 the suggestion that Pw. Pw. 2 has said further that after the occurrence Pw. 6 bandaged Pw. 1's wound and that he (Pw. 2) himself asked Pw. 6 to fetch a motor-car for taking Pw.1 to the hospital. In the light of this evidence of Pw. 2 the suggestion that Pw. 6 was not present in the shop at the time of the occurrence seems to be absolutely groundless. John's statement in Ext. H that he did not see Pw. 6 at the time of the occurrence was evidently due to his desire to help the defence. As has been said in paragraph 5 above, according to Pw. 1, John and his brother Lukkose were the partisans of the accused, and in Makaram 1127 there was an incident in which all of them were concerned and during which Pw.1 and Lukkose had beaten each other. In Ext. H, John admitted that immediately after the occurrence Pw.1 had said that it was the accused who cut him and that he (John) also saw one of the vendors of the shop bandaging Pw. 1's wound. Although John belonged to the same locality and was also a regular customer of the shop he professed ignorance of the identity of the vendor who had bandaged Pw. 1's wound. It is difficult to believe that John could not have known the identity of the vendor who had bandaged Pw. 1's wound in his presence. From his professed ignorance of the identity of this vendor and the evidence of Pws.1, 2, 6 and 7 that after the occurrence of Pw. 6 bandaged Pw. 1's wound, it may be safely inferred that the vendor who bandaged Pw. 1's wound in John's presence after the occurrence was Pw. 6 and that it was for helping the defence by casting a doubt on Pw. 6's evidence that John's said in Ext. H that he did not know the identity of the vendor. Having regard to these facts and circumstances, the prosecution case that at the time of the occurrence Pw. 6 was sitting on a door-sill in the portico from where he could see the assailant coming into the room and cutting Pw.1 appears to be probable and true. It has not been shown that P. 6 is in any way interested in the prosecution or biased against the defence. 6 was sitting on a door-sill in the portico from where he could see the assailant coming into the room and cutting Pw.1 appears to be probable and true. It has not been shown that P. 6 is in any way interested in the prosecution or biased against the defence. There is, therefore, no reason to reject his evidence that he saw the accused coming into portico and cutting Pw.1 from behind. His evidence regarding the identity of the assailant is corroborated by Pws.1, 2 and 7. The suggestion that they could not have seen the assailant making good his escape through the door after cutting Pw. 1, is as groundless as the suggestion that Pw. 6 was not present at the time of the occurrence. It is but natural that when a person is cut from behind he would immediately start up and turn back - the action would be almost involuntary. In this case, there was only one cut and the assailant turned and ran away immediately. Therefore, it is impossible to accept the contention that after receiving the cut Pw.1 would not have turned back and seen the assailant, and that fear and panic would have deterred him from turning and looking back. The first reaction to a sudden attack from behind would be to turn and have at least a fleeting look at what was happening and going to happen. That would in most cases be an involuntary act, and fear and panic would only follow. In the present case, as the assailant had turned and ran away immediately after cutting Pw. 1, there was nothing to deter the latter from having a good look at the fleeing person. Pw. 2's evidence is that on hearing Pw. 1's cry he got up and saw Pw.1 with a bleeding injury on his cheek and the accused running away through the eastern door. Almost similar is the evidence of Pw. 7 also. Running into the portico on hearing Pw. 1's cry he also saw Pw.1 with the bleeding injury on his cheek and the accused making good his escape through the eastern door. The accused was well-known to Pws.1, 2, 6 and 7. All of them belong to the same place. Pw.1 had engaged him for work on several occasions, Pw. 2 had known him for over 31 years, and Pw. 6 for over 25 years. The accused was well-known to Pws.1, 2, 6 and 7. All of them belong to the same place. Pw.1 had engaged him for work on several occasions, Pw. 2 had known him for over 31 years, and Pw. 6 for over 25 years. If it was John or Mathan or anybody else who had attacked Pw.1 and the accused was not in the shop, there is no reason why Pws.1, 2 and 6 should give false evidence allowing the real culprit to go free and implicating the accused who was not even present at the time of the occurrence. In Ext. A, first information statement, Pw.1 appears to have said that John's brother, Lukkose, and another person, Thommi, had come with the accused to the door of the portico and that the accused cut him when they asked him. RvaL. This case of abetment was found to be not true by the investigating officer. Although the case was originally registered against the accused and the persons mentioned as abettors in the first information statement, in the final charge-sheet laid by Police the case of abetment was given up and the accused alone was charged for the attempt to murder Pw. 1. When he was confronted with Ext. A during his cross-examination in the Sessions Court, Pw.1 said that he had not made the statements found in it regarding Lukkose and Thommi. These circumstances were relied upon by the appellant's counsel to discredit Pw. 1's evidence, and they and Pw. 1's evidence that John and Lukkose were concerned in the incident in Makarom 1127 and he (Pw. 1) and Lukkose had beaten each other on that occasion were also relied upon by the learned counsel to support the suggestion that it might be John or Lukkose or some other person and not the accused who had cut Pw. 1. Pws. 2 and 6 were present in the portico at the time of the occurrence, and from where he was sitting Pw. 6 could see all that was happening in the portico as well as at the door. Neither Pw. 2 nor Pw. 6 says that Lukkose and Thommi had come to the door and asked the accused to cut Pw. 1. The statement found in Ext. 6 could see all that was happening in the portico as well as at the door. Neither Pw. 2 nor Pw. 6 says that Lukkose and Thommi had come to the door and asked the accused to cut Pw. 1. The statement found in Ext. A regarding Lukkose and Thommi, although denied by the accused to have been made by him, must really have been made by him, and very probably it was made on account of a desire to rope in Lukkose and Thommi also. But the fact that Pw.1 gave an exaggerated version in Ext. A and tried to rope in Lukkose and Thommi also as abettors would not in any way detract from the value of the evidence of Pws. 2 and 6. The evidence which Pw.1 has given in the Sessions Court regarding the occurrence is exactly the same as the evidence of Pws. 2 and 6 which appears to be absolutely true. In view of the corroboration afforded by the evidence of Pws. 2, 6 and 7, the evidence which Pw.1 has given in the Sessions court can safely be accepted. From the evidence of these witnesses, it appears that besides Pws. 1, 2 and 6 and John and Mathan and the accused, who had suddenly come in through the eastern door, there was no one else in the portico at the time of the occurrence. The evidence of Pws. 2, 6 and 7 is that John and Mathan had remained in the shop for some time even after the occurrence. They did not run away immediately after the occurrence. If it was one of them who cut Pw.1 the weapon used by the assailant must have been found in his hands or somewhere in the portico by Pws. 2, 6 and 7. Even apart from the infirmative circumstances, from the direct evidence of Pws. 2 and 6, which we are convinced is absolutely true, the defence suggestion that it was John or Mathan or some one else who inflicted the injury on Pw.1 has to be discarded as clearly groundless. 8. Besides Pw.1 and the accused there were only four persons present in the portico at the time of the occurrence (i.e., Pws. 2 and 6 and John and Mathan), and one person (i.e., Pw. 7) came into the portico immediately after the infliction of the injury. 8. Besides Pw.1 and the accused there were only four persons present in the portico at the time of the occurrence (i.e., Pws. 2 and 6 and John and Mathan), and one person (i.e., Pw. 7) came into the portico immediately after the infliction of the injury. Of the four persons present in the portico, three were cited as witnesses in the charge-sheet, viz. Pws. 2, 6 and John. The person who came immediately after the occurrence was also cited and examined as a witness. John was examined as Pw. 12 in the Committing Magistrate's Court, and was not available for examination in the Sessions Court as he died before the trial commenced. In these circumstances the contention that the failure to call Mathan as a witness is a suppression of material evidence cannot be accepted. The prosecution was not bound to call every person who was present at the time and scene of occurrence. They called the persons, whom they considered to be the best the persons who, they thought, would speak the truth. They made no attempt to hide the fact that Mathan was present at the time of the occurrence, but they did not call him, evidently because he was a companion of John. Regarding the duty of the prosecution in the matter of calling witnesses it has been observed in Malak Khan v. Emperor (A.I.R. 1946 P.C.16): "It is no doubt very important that, as a general rule, all Crown witnesses should be called to testify at the hearing of a prosecution, but there is no obligation compelling counsel for the prosecution to call all witnesses who speak to facts which the Crown desires to prove. Ultimately it is a matter for the discretion of counsel for the prosecution and though a court ought, and no doubt will take into consideration the absence of witnesses whose testimony would be expected, it must adjudge the evidence as a whole and arrive at its conclusion accordingly taking into consideration the persuasiveness of the testimony given in the light of such criticism as may be levelled at the absence of possible witnesses". These observations have been quoted with approval by the Supreme Court in Abdul Gani v. State of Madhya Pradesh (A.I.R. 1954 S.C. 31). These observations have been quoted with approval by the Supreme Court in Abdul Gani v. State of Madhya Pradesh (A.I.R. 1954 S.C. 31). Judged by the canons laid down by the Supreme Court and the Privy Council, we are clearly of the opinion that there has been no suppression of material evidence in this case. 9. We believe the evidence of Pws.1, 2, 6 and 7 and their evidence proves beyond the shadow of a doubt that while Pw.1 was sitting in the toddy shop drinking toddy and talking with Pw. 2, the accused suddenly came into the portico from outside and cut Pw.1 with a chopper or a long heavy knife and inflicted the injury noted in Ext. C certificate and that immediately after inflicting that injury he turned and ran away from the place. From the evidence of Pws.1, 2 and 6 and the nature and position of the injury inflicted, the accused appears to have deliberately aimed the cut on the neck from behind. The manner in which he suddenly came into the portico, the mode of attack, and the nature of the weapon used also clearly indicate that it was with the intention of severing his head from the neck and causing his death that the accused cut Pw. 1. Pw. 1's escape from death was purely providential. It was because the accused missed his aim, either accidently or because Pw.1 suddenly turned his head, that the cut fell on the cheek and not on the neck. Pw. 3 swears that if the knife had gone a little deeper even on the cheek, it would have cut an artery and caused Pw. 1's death. We therefore agree with the Sessions Judge in holding that the offence committed by the accused in cutting Pw.1 was one of attempt to commit murder punishable under S. 307 I.P.C. and not voluntarily causing the grievous hurt punishable under S. 326 I.P.C. The conviction under S. 449 I.P.C. is also right and proper in the circumstances of the case. 10. The sentence also does not call for any interference. 11. In the result the conviction of the accused under Ss. 307 and 449 I.P.C. and the sentence passed upon him by the Sessions Judge are confirmed and the appeal is dismissed. The bail bonds of the appellant are cancelled, and he is directed to be taken into custody forthwith. Dismissed.