Judgment :- 1. The appellant stands convicted by the Asst. Sessions Judge of Kottayam in Sessions Case 78 of 1966 and sentenced under S.307, IPC. to R. I. for 5 years. He was charged with having attempted to cause the death of pw. 5 by hitting him with an axe. The blow fell on his right eye and on receipt of the blow he fell down, on the ground. After the fall a second blow was struck with the same weapon which hit the right side of the skull. By the time, pw. 2 intervened and snatched away the weapon from the accused. The accused then escaped from the place. pw. 5 was lying unconscious and he was taken to the road side and from there he was removed in a car to the medical college hospital, Kottayam. The occurrence took place at about 11-30 a. m on 15 8 66 in the Chotti estate at Mundakayam. pw. 5 the injured, was then the Asst. Conductor of the estate. On 15 8 66 he had gone to the estate with some coolies for planting rubber seedlings and for that purpose the coolies were engaged in digging pits. The accused is a squatter in the estate. Pits were dug in the courtyard of his residence also. That was resented to by him and he asked pw. 1 one of the coolies engaged in the work whether they were planting seedlings in his courtyard also. pw.1 replied in the affirmative. pw. 6 who was then standing by the side of pw.1 enquired of the accused if he had any objection in the pits being dug there. The accused in a sarcastic way said that he had no objection; but the seedling, if any planted there, would not sprout. pw. 5 then told the accused in a firm voice that he had come to plant the seedlings and that, he would do. The accused then in an apparently friendly way said that he himself would help them in digging pits and so saying he sat down and began to remove earth with his hand for planting the seedling. In the next moment he was seen moving backward and taking an axe that lay on the varanda of his shed. In no time he dealt a blow with the axe on pw. 5. In the next moment he was seen moving backward and taking an axe that lay on the varanda of his shed. In no time he dealt a blow with the axe on pw. 5. It hit him on his right eye and when he fell down one more blow was struck which hit his skull. He then aimed a third blow but by that time he was caught hold of by pw. 2 and the axe was also seized from him. 2. At about 1-30 p. m. the injured reached the medical college hospital, Kottayam and he was attended to by pw. 3 the doctor. pw. 3 conveyed information to the police and pw. 9 the head constable of the Kottayam West Police station proceeded to the hospital and recorded the F. I. statement from pw. 4. Crime No. 28/66 was registered and it was transferred to the file of the Sub Inspector, Mundakayam within whose jurisdiction the occurrence had taken place. There the crime was re-registered as crime No. 60/66. The Sub Inspector then proceeded to the scene, prepared the scene mahazar and the investigation was also taken up by him. The charge sheet was filed on 2410 66. 3. The accused was in custody all the time and when questioned under S.342 Cr. P. C. he stated that the shed in which he was residing was put up by him 16 years ago and he was residing there all these years. At the time of his occupation it was a vacant space and he had got it registered as a kudikidappu in 1964. When the fact of registration came to the notice of the estate people they got enraged at him and were thereafter trying every means to evict him from there. He is a member of the scheduled caste and according to him under the existing law he is not liable to be evicted; but in spite of that the estate owner had been insisting on his eviction from the place. His mother had sent representations to the revenue authorities and the police that they should not be evicted and all these have added to the ill-feeling that was already there between him and the estate owner. While so, on 15 8 66 watcher Kuttapan and a gang of hirelings made their appearance in his house fully drunk and began to belabour him. While so, on 15 8 66 watcher Kuttapan and a gang of hirelings made their appearance in his house fully drunk and began to belabour him. He was rendered unconscious by the beatings and he could not recollect what all happened there. The learned Asst. Sessions Judge rejecting the plea of the accused has convicted him of attempt to murder and sentenced as stated already. 4. There cannot be any doubt on the point that injuries were sustained by pw. 5 on 15 8 66 at about 11-30 a. m. He was taken to the medical college hospital, Kottayam the same day at about 1-30 p. m. and he had at the time one lacerated wound 11/2" long and 11/4" wide over the lateral end of the right eye, bone deep. The right eye ball was injured and partially protruding. On X-ray examination it was found later that he had sustained a fracture of the right partial bone about 3"x2". pw. 3 the doctor who treated him swears that the injury could have been caused by the blunt side of a weapon like Mo.1 axe. He was discharged and relieved on 19 9 66. From the above evidence it could be seen that an injury was sustained by him on the skull for which he was treated in the hospital from 15-8-66 to 19-9 66. 5. The fact that the blow was dealt on pw. 5 by the accused has also been well proved in the case. The plea put forward by the accused was that he was beaten by pw. 5 and his coolies and that it was hinted in his statement that the injuries, if any sustained by pw. 5 could have been sustained in the course of the beatings administered on him; but from the evidence of the injured supported by that of pws.1 and 2 it might be stated without fear of contradiction that it was the accused and none else who had dealt the blow on pw. 5. It is doubtful whether two blows were dealt as claimed fay the prosecution. The injured was taken to the hospital within about two hours of the sustaining of the blow and only one injury was noted by the doctor at the time and that was an injury sustained on the right eye. 5. It is doubtful whether two blows were dealt as claimed fay the prosecution. The injured was taken to the hospital within about two hours of the sustaining of the blow and only one injury was noted by the doctor at the time and that was an injury sustained on the right eye. According to the prosecution witnesses, one more blow was struck on the head with the axe after the victim had fallen down; but no visible injury was seen on the head. The fracture was caused as a result of this second blow; but it is surprising that a blow dealt with a heavy weapon like an axe had not left any visible external marks on the head. The doctor would explain that since the head was hairy no external marks were left by the blow. I do not think the explanation is convincing. Learned counsel for the accused argues that the fracture might have resulted from the fall on the hard surface by the first blow; but in that case also the accused is answerable for the fracture. This fact will not be of importance when we assess his penal responsibility under S.307. pws.1 and 2 are prone to exaggerate, both being the coolies employed by Pw. 5. It has come out from their own statements that a number of other coolies and strangers were also present at the time. Learned counsel would point out that these two persons were chosen for the reason that they are two of the most loyal coolies attached to the estate. When all the estate labourers went on strike these two alone stood by the side of the employer without participating in the strike. That might be the reason why these two witnesses alone were chosen. Whatever that be, the fact that atleast one blow was struck by the accused on pw. 5 cannot be doubted. 6. The question would then arise as to what offence the act committed by the accused would amount to. It is difficult on the facts proved in the case to convict the accused of attempt to murder. The glaring fact is there that the blow was struck with the blunt end of the axe. Had it been his intention to kill the man he would certainly have dealt cut with the pointed end of the axe. It is difficult on the facts proved in the case to convict the accused of attempt to murder. The glaring fact is there that the blow was struck with the blunt end of the axe. Had it been his intention to kill the man he would certainly have dealt cut with the pointed end of the axe. The alleged second blow also, according to the witnesses, was dealt with the blunt end. In cases of this nature, where the act is alleged to have been done with particular intention, it is for the prosecution to make out that the accused acted with suchintention. "The inference upon this important point, as in other cases of malicious intention must be founded upon a consideration of the situation of the parties, the conduct and declarations of the prisoner, and, above all, on the nature and extent of the violence and injurious means he has employed to effect his object." (Vide Russel! on Crime. 9th Edn., Vol. 1, p. 535). 7. It was probably to make out that the accused had made a declaration or a war cry that pw. 7 was introduced into the picture. He would swear that nearly 11/2 months before the occurrence the accused had made a declaration to him that if pits are dug that would be the last digging. Undoubtedly there is an element of artificiality in this evidence. In the first place it relates to something that took place in the past and as such it has no bearing on the incident in question; and secondly, the alleged declaration itself was unprovoked. Nobody had then gone to dig pits. The accused had, therefore, no occasion to make such a declaration. 8. Now, coming to the act proper it can amount if at all only to grievous hurt by dangerous weapon and never attempt to murder. "It is a very important question, whether on a count charging an intent to murder, it is essential that the jury should be satisfied that that intent existed in the mind of the prisoner at the time of the offence, or whether it is sufficient that it would have been a case of murder had death ensued; and this question does not seem to be completely settled. In R. v. Cruse (8 C. & P. 541), where a man was indicated for inflicting an injury dangerous to life on a child, with intent to murder it, and his wife as principal in the second degree, for aiding and abetting him, where it appeared that the prisoners had inflicted great violence on the child, Patterson, J., told the jury: "Before you can find the prisoner, guilty of this felony, you must be satisfied that when he inflicted this violence on the child, he had in his mind a positive intention of murdering that child. Even if he did it under circumstances which would have amounted to murder if death had ensued, that will not be sufficient, unless he actually intended to commit murder." (Vide Russell on Crime, 9th Edn. Vol. I p. 536). 9. It is incumbent on the prosecution, therefore, to prove that the accused was actuated by an intention to murder; but in the present case it is impossible to draw such an inference in view of the patent fact that the blow was struck only with the blunt end of the weapon. No cut wound was inflicted. Further, what is made punishable by S.307 is where a person does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of murder. This seems exactly equivalent to saying that a man is punishable who does an act capable of causing death with such intention or knowledge that the death if caused would be murder. In Reg. v. Francis Cassidy (4 B. H. C. R.-Cr. Ca.-17) Couch, C. J, said: "It appears to me, looking at the terms of this section, as well as at the illustrations to it, that it is necessary in order to constitute an offence under it, that there must be an act done under such circumstances that death might be caused if the act took effect. The act must be capable of causing death in the natural and ordinary course of things, and if the act complained of is not of that description, a prisoner cannot be convicted of an attempt to murder under this section. The illustrations given bear out this view. One is that of a man firing a loaded gun; and another is that of a man placing food mixed with poison on another's table. The illustrations given bear out this view. One is that of a man firing a loaded gun; and another is that of a man placing food mixed with poison on another's table. Both these acts are capable of causing death; but in the present case, although the act was done with the intention of causing death, and was likely in the belief of the prisoner to cause death, yet in point of fact it could not have caused death, and it, therefore does not come within that section." 10. In this connection the following observations made by Beaumont C. J., in Vasudeo Balwant Gogte v. Emperor (AIR. 1932 Bom. 279) are pertinent: "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." The offence contemplated in S.307 is of a hypothetical nature. 11. We have, therefore, to analyse the act committed, and see whether it was capable of causing death in the natural and ordinary course of things. A blow with the blunt edge of the axe on the eye cannot in the ordinary course of things cause death. Moreover, the accused in the circumstances of the case could not have intended also that should cause the death of the victim. In these circumstances the conviction under S.307 I. P. C. cannot be allowed to stand. 12. In the peculiar circumstances of the case I should think that the offence of which the accused is guilty is one falling under S.335 I. P. C., voluntarily causing grievous hurt on provocation. The fact cannot be doubted that pw. 5 and his workmen had given provocation to the accused in their having dug pits in the courtyard of the accused's house, just in front of the veranda of the house pits were dug. The accused went and protested; but of no avail. It was in such a situation that the blow was struck with the blunt end of the axe. I would, therefore, find the accused guilty under S.335 P. P. C. In the result, the conviction and sentence under S.307 IPC. The accused went and protested; but of no avail. It was in such a situation that the blow was struck with the blunt end of the axe. I would, therefore, find the accused guilty under S.335 P. P. C. In the result, the conviction and sentence under S.307 IPC. are set aside and the accused is convicted under S.335 IPC. and sentenced to undergo R. I. for two years. With this modification the appeal is dismissed.