Judgment :- 1. Moidu, the appellant stands convicted by the Asst. Sessions Judge of Kasaragod in Sessions Case 16 of 1966 under S.307,354, and 326 IPC., and sentenced to rigorous imprisonment for five years each under S.307 and 326 and two years under S.354. The sentences are to run concurrently. 2. The case against him is that on the 22nd of September 1965 at 4 P.M. he used criminal force at one Madhavi daughter of one Kunhambu Nair by catching hold of her from behind and shooting her with a gun. Madhavi is a married woman aged 23; but at the time of the occurrence the marriage had been dissolved and she was staying with her brother Krishnan Nair. Pw. 2 in the case is the wife of Krishnan Nair. The accused is a young man aged about 20. About a year prior to the occurrence he had once attempted to outrage her modesty. The stir created by that incident was allowed to cool down finally by his tendering an apology on the advice of mediators. On the 22nd of September, 1965 at about 4 p.m. the complainant Madhavi, with Pw. 2 was engaged in collecting firewood in the reserve forest. The accused availing himself of the opportunity made his appearance there and approaching Pw.1 from behind caught hold of her hand, seized the billhook that she had for cutting firewood and threw it aside. She struggled with him for some time and in the course of the struggle she was thrown on the ground on her back. His purpose it is stated, was to ravish her. On the ground also they struggled, and finally she managed to extricate herself from the grip of the accused. The accused then stood up and took his gun which he had placed near a tree and fired a shot at her. The shot hit her chest above the sternum and caused a bleeding injury. Pw.1 raised an outcry which attached Pw. 2 to the spot and on seeing her, the accused took to his heels with the gun. Pw.1 staggered and was about to fall on the ground, when she was held by Pw. 2. She told Pw. 2 all that had happened. Pw. 6 is a person who heard the sound of a gun and within a few minutes saw the accused running towards the south. Pw. Pw.1 staggered and was about to fall on the ground, when she was held by Pw. 2. She told Pw. 2 all that had happened. Pw. 6 is a person who heard the sound of a gun and within a few minutes saw the accused running towards the south. Pw. 3 and one Malingan Nair were on their way to a nearby place called "Kanathur." On hearing the hubbub they proceeded to the scene of occurrence and on the way they saw the accused running with the gun. On proceeding further, Pw. 3 saw the injured being supported by Pw. 2, and to him also the occurrence was narrated by them. Pw. 5 the elder brother of Pw.1 was also attracted to the scene and Pw.1 was removed by him in a car to the Govt. Hospital, Kasaragod. At about 9-45 p.m. she was admitted in the hospital. Pw. 9 the head constable went to the hospital at 11-20 p.m. and recorded the F. I. statement. Her dying declaration was recorded by the Sub-Magistrate, Kasaragod. On being examined by the doctor it was found that Pw.1 had four injuries on her person. Injury No.1 was a lacerated wound 21/2" x 11/2" bone deep, situated on the chest in front of the middle of sternum. The surrounding area had been charred and ecchymosis had extended to 2" all around the wound. Injury No. 2 was an abrasion and a contusion over the right side of the neck; ecchymosis extended to 11/2" x 1" and was irregular in shape in front of the neck. Injury No. 3 was a contusion and abrasion over the posterior anterior aspect of the right elbow joint over the right forearm. Contusion was present on the anterior and posterior aspect of left forearm around the wrist joint and injury No. 4 was an abrasion over the right hypochordium and there was an abrasion over the left ankle-joint anterior aspect. According to the doctor, injury Nos. 2 to 4 could be caused in the course of a struggle and injury No. 1, which is the most serious one could be caused by gun shot. 3. Accused denying the charge stated that Pws.1 to 3 and 6 have given false evidence. The earlier occurrence was also denied by him. According to the doctor, injury Nos. 2 to 4 could be caused in the course of a struggle and injury No. 1, which is the most serious one could be caused by gun shot. 3. Accused denying the charge stated that Pws.1 to 3 and 6 have given false evidence. The earlier occurrence was also denied by him. Himself and his father are tenants of one Kodath Kannan Nair and as directed by Kannan Nair they have been paying rent to Pw. 3, but some years back they learnt that the property did not belong to Kannan Nair but to the Government. Thereafter they stopped paying rent to Pw. 3. The accused and his father then applied to the Tahsildar for registry of the land in their favour. That enraged Pw. 3 and he was ill disposed to them ever since. Pw. 3 had even demanded surrender of the land from the accused. It is at the instance of Pw. 3 that Pws.1 and 2 have given false evidence and foisted the case on him. Learned Judge has believed the witnesses and has held that the occurrence as narrated by Pw.1 is true. The occurrence was in broad day light and there was absolutely no difficulty for the victim of assault to identify her assailant. Pws. 2, 3 and 6 have furnished strong corroborative evidence. The F. I. statement was also laid without the least delay and as a matter of fact, the findings of fact entered by the learned judge were not challenged before me. Learned counsel, however, argued that the facts alleged even if accepted as true the resultant offence could never be attempt to murder under S.307 or grievous hurt by dangerous weapon under S.326 I. P. C. The offence, if at all, according to him would only amount to hurt by dangerous weapon falling under S.324 I. P. C. I think there is force in this contention. From the nature of the act it is difficult to say that the accused's intention in using the gun at Pw.1 was to cause her death. The gun, in question, is stated to be a sort of sporting gun, generally used to scare away birds and wild beasts from the cultivation. The gun is not before court. We cannot, therefore, form an impression of it, whether it was a dangerous one or only a sporting gun. The gun, in question, is stated to be a sort of sporting gun, generally used to scare away birds and wild beasts from the cultivation. The gun is not before court. We cannot, therefore, form an impression of it, whether it was a dangerous one or only a sporting gun. Judged from the result, it cannot be said that the gun used was of a dangerous type. Even though the shot was aimed at the chest, none of the vital organs of the body was injured. Injury No.1 in the wound certificate is stated to be the one caused by the gun shot. That according to the medical witness is a grievous injury, not because it resulted in any fracture of the bone or things like that; but because the patient was in the hospital for more than a month, unable to attend to her ordinary avocations. The doctor himself would swear, "Injury No.1 would have been serious. It was a fortuitous escape for the injured ...One pellet was discovered inside injury No.1 and was extracted. There are other pellets inside the body of Pw.1.One pellet came out. There were 35 pellets scattered over the abdominal area inside the abdominal muscles. There is no harm in leaving them there. It is noted in the cover of the X-ray photo." Thus we see that even though as many as 35 pellets had gone into the body the victim was not very seriously affected. As observed by Beaumont, C. J. in Vasudeo Balwant Gogte v. Emperor (AIR. 1932 Bom. 279: "If an act is done which in fact does not cause death, it is impossible to say that, that precise act might have caused death. There must be some change in the act to produce a different result, and the extent to which the act done must be supposed to be varied to produce the hypothetical death referred to in S.307 is merely a question of degree." 4. With the above principles in mind if we approach the facts of the present case, it could be seen that the offence which the accused committed would only amount to hurt by dangerous weapon falling under S.324 I. P. C. The learned judge has convicted the accused both under S.307 and 326 I. P. C. This is redundant and absolutely uncalled for, in the nature of the case. The offence has been brought under S.326, upon the mere fact that the patient was in the hospital for more than 20 days. We have no evidence worth considering as to whether the patient was unable during the period to pursue her ordinary avocations in life. There is also no evidence to show that as a matter of fact, she was an in-patient for more than 20 days. No record was produced from the hospital. The learned judge himself observes in Para.13 of his judgment that: "unfortunately the prosecution omitted to cause production of the inpatient register which would have furnished documentary evidence of the fact that Pw.1 was in the hospital for a period more than a month." The finding, therefore, that the offence committed is grievous hurt by dangerous weapon falling under S.326 I. P. C. is open to doubt; but the offence would clearly fall under S.324 I. P..C. 5. The learned judge has also convicted the accused under S.354 assault or use of criminal force to a woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty. It has clearly come in the evidence that Pw.1 was caught hold of by her hand from behind and in the struggle that followed she was thrown on the ground on her back. That this would amount to assault or criminal force contemplated in S.354 cannot be doubted, even though the learned counsel appearing for the appellant tried to point out that, viewed in the modern social set up, catching hold of a woman by the hand or pushing or pulling her would only be a mere trifling which no woman would take to heart. It is too much to claim that society, Indian society in particular, has reached such a height of social or moral regeneration. I would leave it at that; no separate sentence is, however, called for under S.354 I. P. C. in the circumstances of the case. My conclusion, therefore, is that the accused has committed an offence under S.324 I, P. C. and he is liable to punishment therefor. 6. Regarding the punishment, the learned counsel stated that in the nature of the offence committed, and taking into consideration the youth of the offender this is a fit case where the Probation of Offenders Act may be applied. I am sorry, I cannot agree. 6. Regarding the punishment, the learned counsel stated that in the nature of the offence committed, and taking into consideration the youth of the offender this is a fit case where the Probation of Offenders Act may be applied. I am sorry, I cannot agree. The section of the Probation of Offenders Act which, according to the learned counsel, Would apply to the present case is S.6 which runs: "When any person under twenty-one years of age is found guilty of having committed an offence punishable with imprisonment (but not with imprisonment for life), the court by which the person is found guilty shall not sentence him to imprisonment unless it is satisfied that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it would not be desirable to deal with him under S.3 or 4, and if the court passes, any sentence of imprisonment on the offender, it shall record its reasons for doing so." (Underlining is mine) The nature of the offence and the character of the offender, it is clear from the section itself, are relevant factors to be taken into consideration in applying the section. The act proved in the present case though would technically come under S.324 only, is in fact heinous and revolting in the sense that a woman has been treated in a most savage and inhuman manner. The offender himself is of a relentless type, because this is the second time that such high-handedness is being committed by him on the woman. On the first occasion the offence some how was wiped out by the accused offering apology, but that did not bring about any reformation in him. That only gave him the incentive to make another attempt on her with greater severity, in utter disregard, and in open challenge of all moral values. The first instance has been spoken to by Pwl and Pw3. In this background, I do not think this is a fit case for action being taken under the Probation of Offenders Act. 7. In the result, the conviction and sentence under S.307 and 326 are set aside. The accused is convicted under S.324 I. P. C. and sentenced to undergo simple imprisonment for one month. His conviction under S.354 IPC. is confirmed but no separate sentence is awarded thereunder. 7. In the result, the conviction and sentence under S.307 and 326 are set aside. The accused is convicted under S.324 I. P. C. and sentenced to undergo simple imprisonment for one month. His conviction under S.354 IPC. is confirmed but no separate sentence is awarded thereunder. The appeal is allowed to the above extent and dismissed in other respects.