Judgment :- 1. The appellant was the first accused in Sessions Case 9/68 on the file of the Addl. Sessions Judge, Mavelikara. He was charged with offences falling under S.307, and 332 IPC., in that on 9 9 67 at about 8-15 p. m. he attempted a blow on pw.1, the Sub Inspector of Police, Mavelikara with an iron rod while the latter, on the complaint of the proprietor of the Chengannoor town foreign liquor shop that the accused behaved disorderly in the shop, was attempting to arrest him. The Sub Inspector immediately on receipt of the report of the accused's misbehaviour in the shop proceeded to the place in a jeep accompanied by two constables. The first accused was seen standing in front of the shop on the steps leading to the shop building. He had an iron rod in his hand and the 2nd accused was standing by his side by way of help and encouragement to him and they were shouting abusive epithets. The Sub Inspector arrested the first accused and when he was about to be taken to custody he aimed a blow on pw 1's head with the rod making the declaration that he would be killed. The blow was warded off by the Sub Inspector with his left hand resulting in an abrasion on the hand. Both the accused were immediately removed from the scene and taken to the police station. Pwl tried to contact the Circle Inspector and in his absence the Dy. S P. over the phone; but the Dy. S. P. was also not available. Therefore the P.1. statement was recorded by Pwl himself and the case also was registered by him under S.307 & 34, IPC. The Circle Inspector came the next morning and the investigation was taken up thereafter by him. He visited the scene of incident and the observation mahazar was prepared. For creating trouble in the liquor shop and causing damage to the shop by breaking bottles, glass etc., on the complaint of the proprietor of the shop a case (Crime No. 148/67) was taken against the accused. Pwl was treated for the injury on the hand in the government dispensary at Pandalam and Ex-P6 is the wound certificate issued by Pw12 the doctor in charge of that dispensary. In the final charge S.332 IPC. was also added. 2. Pwl was treated for the injury on the hand in the government dispensary at Pandalam and Ex-P6 is the wound certificate issued by Pw12 the doctor in charge of that dispensary. In the final charge S.332 IPC. was also added. 2. The defence case as put forward by the accused in the 342 statement was that while they were standing on the road near the Chengannoor town foreign liquor shop, Pwl along with another Sub Inspector one Idiculla came that way in a jeep. Seeing the accused on the road they stopped the jeep and got down and without any rhyme or reason Pwl dealt a blow on the first accused's cheek and took him in the jeep. The 2nd accused was also taken in the jeep. In the police station they were subjected to severe torture. The reason for this high-handed action on the part of the Sub Inspector is the enmity resulting from the first accused's conduct in working against Sri Idiculla's father-in-law in a case filed by him in the Magistrate's court. For the maltreatment and the injuries caused to the accused a private complaint C. C. 1/68 was preferred by him to the Sub Divisional Magistrate, Chengannur; but that complaint was finally thrown out by the Magistrate and the accused (the two Sub Inspectors) were acquitted. Crime 148/6 which is a case taken against the present accused at the instance of the proprietor of the liquor shop was also dismissed by the Magistrate. In the present case the 2nd accused was acquitted and the first accused was convicted under S.324 and 332 IPC. and sentenced to R.I. for one year on each count; the sentences are directed to run concurrently. 3. On a careful and anxious consideration of the evidence in the light of the probabilities and attendant circumstances, I am clearly of the view that the prosecution case has not been proved and the accused ought to have been acquitted. Pwl, the Sub Inspector, I am constrained to observe, has not played an honest role either in the incident, or subsequently in prosecuting the case. His definite case in his F. I. statement (his own self-drawn out and self reported F. I. statement) was that the occurrence took place inside the liquor shop. Pwl, the Sub Inspector, I am constrained to observe, has not played an honest role either in the incident, or subsequently in prosecuting the case. His definite case in his F. I. statement (his own self-drawn out and self reported F. I. statement) was that the occurrence took place inside the liquor shop. On getting the report about the disorderly behaviour of the accused in the liquor shop he hurried to the place and on getting into the shop he saw the first accused trying to beat the shop people with a stick. He has made the definite and unambiguous statement that the first accused was at the time inside the shop and he also got into the shop to arrest him is the very expression used by him in the F. I. statement; but before court he has shifted his ground and stated that the occurrence took place on the road in front of the shop. When he reached there the first accused armed with a stick in a highly exasperated mood was standing on the foot-steps (the last foot-step leading to the road) and seeing that he was in a highly excited and perturbed state arrested him then and there. At the time of making the arrest the Sub Inspector was standing on the road and the accused on the foot-steps. When he was confronted with the statement in cross-examination he stated that as the first accused was seen on the step at the entrance of the shop he happened to state in Ex-Pi that he was seen in the shop and curiously enough according to the Sub Inspector, the flight of steps leading to the road will form part of the building and when we say that a person is on the foot-step leading to the road we must take it that he is inside the shop. This looks funny and ununderstandable. In 6x-PI the expression used, as already stated was, No man of ordinary prudence would interpret this as standing on the foot-steps leading to the road. The learned Public Prosecutor himself, it appears was not satisfied with the quibble indulged in by the Sub Inspector in cross-examination and so to give a final and finishing touch to the affair put the following leading question to the Sub Inspector: "Liquir Shop 4. The learned Public Prosecutor himself, it appears was not satisfied with the quibble indulged in by the Sub Inspector in cross-examination and so to give a final and finishing touch to the affair put the following leading question to the Sub Inspector: "Liquir Shop 4. According to the learned counsel for the appellant this is a conscious and purposeful somersault resorted to by the prosecution to cook up evidence for the case. Only if the scene is shifted to the road could it be possible for citing some passer by as witness to the occurrence. I do not propose to go so far; but I cannot help remarking that the explanation offered by the Sub-Inspector is unconvincing and no weight at all can be attached to it. Some of the witnesses also, it appears, had to fall in line with Pwl and put forward the same explanation to get over the difficulty created by their earlier statement. 5. Pws 1 to 11, 13 and 16 were cited as occurrence witnessess. Among them pws. 6,8 and 9 were given up and pws. 3 and 16 turned hostile. The learned judge has relied on the evidence of the remaining witnesses. But even the witnesses relied on by the learned judge as could be seen presently are unreliable and their evidence cannot be accepted for any purpose. Pw2 is a constable who was present with the Sub Inspector. Even according to the learned judge the evidence of this witness cannot be accepted as he is only echoing the words of his master. pws. 4 and 5 are two officers attached to the N. E. S. Block the former the Agricultural Extension Officer and the latter the Superintendent of the Warehouse, Chengannoor. These officers, even on their own admission had gone to the liquor shop that day to take some brandy. Two bottles of brandy were purchased by them and some portion of it was actually consumed by them. When they were about to leave the shop, the first accused picked up a quarrel with Pw4 and assaulted him. He was frightened by the tumultuous and highly inflamatory attitude of the first accused and so he requested the shop man to report the matter to the police and it was in that manner that the Sub Inspector happened to be attracted to the shop. He was frightened by the tumultuous and highly inflamatory attitude of the first accused and so he requested the shop man to report the matter to the police and it was in that manner that the Sub Inspector happened to be attracted to the shop. According to him, after some time the first accused's excitement subsided and it was when he was trying to get out of the shop that the Sub Inspector came and arrested him. Both the witnesses also swear to the attempted beating by the first accused on the Sub Inspector and the latter warding off the same with his left hand, these witnesses were examined for the prosecution in Crime No. 148/67 also. That is a case taken against the accused for their disorderly behaviour in the shop and before the learned Magistrate the version given by these witnesses was that the arrest of the first accused by the Sub Inspector and the first accused's attempted assault on the Sub Inspector were both inside the shop. Both of them were confronted with the said statement given by them in the Magistrate's court and after some wriggling they had finally to admit that before the Magistrate's court they had stated that the occurrence took place inside the shop. But the learned judge seems to have got over this circumstance by the faulty and unsustainable reasoning that their Magistrate Court depositions were not marked in proof of the discrepancy. The learned judge is clearly in error in having swept over such a discrepancy glaring as it is through such a shortcut. In fact, as is seen from the evidence of the both these witnesses they were confronted with the previous deposition; but the question of marking the deposition did not arise, since the previous statements were all admitted by them. To quote one or two instances, Pw4 stated when confronted with the Magistrate court deposition: The learned judge's pronouncement, therefore, that as these witnesses were not confronted with their earlier statements, the objection cannot hold, is not correct. Moreover, both these witnesses were disbelieved by the learned Magistrate in the case taken against them at the instance of the proprietor of the shop. The learned judge, therefore, was clearly in error in having accepted their testimony in the present case. Both of them belong to Kayamkulam, about 20 miles from the scene of crime. Moreover, both these witnesses were disbelieved by the learned Magistrate in the case taken against them at the instance of the proprietor of the shop. The learned judge, therefore, was clearly in error in having accepted their testimony in the present case. Both of them belong to Kayamkulam, about 20 miles from the scene of crime. According to them they had to proceed all the way to Chengannur for a peg of brandy. The story is totally unbelievable. The next witness whom the learned judge has believed is pw 7. He was attracted to the scene from the private bus stand where he was waiting to catch the bus to Uzhavallor, his native village which is 7 miles from Chengannur. His case is that at about 8 a.m. that day he had gone to Ennakkadu to see his stepmother residing there. At about 6 p.m. he returned and was waiting at the private bus stand for the bus going to Uzhavalloor. From the private bus stand he heard a hubbub from the scene and immediately hurried to the place. There is no doubt that he is a casual witness, whose presence there on that day was improbable. To catch the bus for Uzhavalloor he could have very well waited at the transport bus stand which is some distance away, on the way to Ennakkadu. In other words, it was after passing the transport bus stand that he came and waited at the private bus stand. This is an unusual conduct for which no explanation was forthcoming from him. The learned judge in believing this witness has stated his reasons thus: "There is no reason suggested by the defence counsel as to why this witness should speak about the incident and against the 1st accused. No suggestion of any interest in Pwl is made nor any antogonism against the accused is also made against him." This is not a correct or proper approch in appreciating the evidence of a witness. It would appear from the learned judge's observation that the accused should prove that the witness has enmity towards him and if he fails to prove that the evidence of the witness would have to be accepted. This is casting the burden on the accused. It is not possible for the accused to satisfy the court as to why the witness is compelled to swear against him. This is casting the burden on the accused. It is not possible for the accused to satisfy the court as to why the witness is compelled to swear against him. This is certainly not the yardstick to measure or assess the worth and credibility of a witness. Here, the witness in question is undoubtedly a casual witness residing miles away. His explanation as to how he happened to be there at the particular time looks highly artificial. It is difficult, therefore, to give any weight to this witness's evidence. pws. 10 and 11 were also cited as eye witnesses. They too were at the private bus stand like pw 7 and attracted to the scene on hearing the noise and commotion that arose from there. The learned judge has discarded their evidence on the ground that they are interested in or obliged to Pwl. The learned judge, however, has believed Pw13 who too was attracted to the scene from the private bus stand. This man as is disclosed from his testimony, is a man of straw. He belongs to Pandanad, from which place pws.10 and 11 also hail. From Pandanad he went to Aranmula as the servant of one Krishna Pillai who had gone there to purchase a bull. This man was taken by Krishna Pillai to drive the bull from market to Krishna Pillai's house. In the next breath he would say that no bull was purchased at all and he had, therefore, to return walking. At about 8 p.m. he came to the private bus stand and from there he is stated to have seen the occurrence. The evidence of this witness looks artificial from start to finish. Probably to get at witnesses like him that the scene of crime had deliberately to be shifted from inside the room to the footsteps leading to the road. Pw16 the proprietor of the liquor shop was declared hostile. The other witness is Pw17 the C. I. who investigated and charge sheeted the case. Certain important features of the case reflecting very much against the truth and bonafides of the prosecution have emerged from his examination. In the first place the charge itself was filed only on 2112 1967 about 3 and odd months after the commission of the crime. Why the charge was so much delayed in a simple case like this passes comprehension. In the first place the charge itself was filed only on 2112 1967 about 3 and odd months after the commission of the crime. Why the charge was so much delayed in a simple case like this passes comprehension. The explanation put forward for the delay is that in the midst of the investigation, Pw17 had been transferred; but the transfer was only on 18101967 and the same day he was succeeded by Pw18 who continued the investigation. In the case of Pw18, of course, the prosecution would say that the investigation was interrupted owing to other personal matters which he had to attend to. All these are eye-wash and this inference of mine stands strengthened by the history behind the alleged abrasion sustained by Pwl on his left hand. The case is that the abrasion was caused while warding off the blow aimed at him by the first accused with an iron rod (the injury sustained is an abrasion 4" in length and 1/2 inch in width from the back of left elbow joint to the middle of the back of left forearm). Ex-P6 is the wound certificate issued in respect of the injury. That is dated 10 91967; in other words, the injury was seen by the doctor only on the 2nd day. According to the accused, no injury at all was sustained by Pwl and the abrasion was a subsequent manipulation intended to give an aggravated colour to the offence. This case of the accused gets considerable support from the fact that Pwl the S.I. had to go from doctor to doctor to get the wound certificate in support of his case. Normally, he should have gone to the doctor in charge of the Changannur hospital since that is the hospital within the jurisdiction of which the occurrence was alleged to have taken place; but the doctor in charge of that hospital refused to issue a certificate for the obvious reason that either no injury was seen on the person of the S.I. or that the abrasion which is now put forward had struck the doctor as something self-inflicted. The S.I. therefore had to go to Pandalam where one Radhakrishnan Chettiar was the S.I. at the time. This Mr. Chettiar is one under whom Pwl had his probation or early training and as such Mr. Chettiar had some sort of a filial affection for Pwl. The S.I. therefore had to go to Pandalam where one Radhakrishnan Chettiar was the S.I. at the time. This Mr. Chettiar is one under whom Pwl had his probation or early training and as such Mr. Chettiar had some sort of a filial affection for Pwl. Chettiar, of course, was prepared to go to any extent to help his disciple. He accordingly took him to Pw12 the medical officer there who readily obliged them by issuing the certificate. These circumstances are sufficient to discredit the prosecution case that an abrasion was sustained on the left hand by Pwl while warding off the blow dealt by the first accused. In the nature of the injury, it is not difficult of being self-inflicted; but I do not want to pursue this point as it was not specifically put to the medical witness. Whatever that be, it cannot but be said that a cloud of suspicion has gathered round the injury and the story spoken to by Pwl that he was beaten with an iron rod cannot be given any credence. In recording the F.I. statement Pwl did not think it necessary to get his body mahazar prepared. No doubt the F. I. statement was his own creation; but the body mahazar if he wanted could have been got prepared by the station writer or any one of his subordinate in the station. The absence of a body mahazar would also add to the improbability and strengthen the suspicion gathering round the injury. 6. My own conclusion, therefore, is that on the evidence before me it is difficult to convict the accused of any offence. But in passing, I should point out that it looks grotesque that on the above materials the police had thought it fit to charge the accused of attempt to murder under S.307 IPC. Is it possible from the facts stated by Pwl granting that all he states is true to cull out a case of attempt to murder? Had the accused the intention to kill? Without an intention to kill there cannot be an attempt to kill. Is it possible from the facts stated by Pwl granting that all he states is true to cull out a case of attempt to murder? Had the accused the intention to kill? Without an intention to kill there cannot be an attempt to kill. In the words of Sir James Stephen, "this is a highly technical offence where the will of the offender is taken for the deed." In other words, it is the intention with which the act was done that has to be taken into consideration in analysing the offence, and that intention must have been present in the mind of the offender from the very beginning. "Though always an act and intent must combine to constitute a crime, yet there are two classes of cases those in which the criminality comes primarily from the act; and those in which it proceeds either primarily or in part from the specific intent, as distinguished from general malevolence of mind. The doctrine of attempt applies only to the latter class. For, in the former class, where the guilt is measured primarily by the act, and only general malevolence is required to be shown if the act has proceeded far enough for the law to notice it, it constitutes itself a substantive offence, and is not an attempt The intent in the mind covers the thing in full, the act covers it only in part." (Commentaries on the Criminal Law by J. P. Bishop Vol. 1. p. 379). The intent which is the most decisive factor in attempt to murder, cannot be inferred from the nature and magnitude of the act committed. The learned author continues at p. 382: "The doctrine of an intent in law differing from the intent in fact, is not applicable to these technical attempts; and, if the prisoner's real intent were not the same which the indictment specifies, he must be acquitted. The reason is, that he is charged with doing an act deriving its criminal quality or criminal aggravition from the intent whence it flowed; in other words, he is charged with a thing aggravated by the intent, and to draw the intent from the thing and then increase the thing by adding to it the intent drawn front it is, an absurdity in legal argumentation". In a case of causing hurt by cutting or stabbing, we get a completed offence and not merely an attempt, and from the nature of the resultant act, it is impossible to gauge correctly the intention with which the injuries were inflicted. S.307 can be split up into two parts; the first part dealing, with an act, and the second part with hurt or injury which is also caused in the course of the commission of the 'act'. In fact, the offence of attempt to murder is complete by the commission of the 'act' which is dealt with in the first half of the section. I am quoting the first part of the section: "Whoever 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, shall be punished with imprisonment of either description for a term which may extend to ten and shall also be liable to fine." So, the act must be such that if it takes effect uninterrupted, death will be the sure result. This is made clear by the illustrations to the section. Illustration (a) is shooting with intention to kill; (b) is exposure of a child of tender years in a desert place; (c) is firing a gun; here a distinction is drawn between preparation and attempt; and illustration (d) is placing food mixed with poison on one's table. Here also preparation and attempt are sought to be distinguished. In all these cases, it is important to note that the act designed is potential enough to result in the death of the victim if it takes effect as intended; that is to say, a shot from the gun hits at the victim; child of tender years exposed in the desert place, is allowed to remain there; and food mixed with poison is consumed by the victim. Before that stage is reached we are in the stage of attempt only and it is that attempt that is characterised as attempt to murder. Before that stage is reached we are in the stage of attempt only and it is that attempt that is characterised as attempt to murder. In the course of the above attempt if injury also is caused to the victim for instance, in the case of shooting the aim is missed; but the shot touches some part of the victim's body and an injury is caused, or in the case of exposure of the child, its body is hurt by coming into contact with some pointed substance on the ground we come to the second stage in S.307 which is to this effect: 'And, if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life or to such punishment as is here in before mentioned." So, under the second part vherein hurt is also caused the prisoner will be liable to enhanced punishment. In the case of stabbing or cutting with a dangerous weapon we get a completed offence, as already stated, and it would be incorrect to call it an attempt merely. 7. Turning again to the Commentaries on the Criminal Law (cited supra) p. 379, on 'the kind of intent' the author would observe: "The most obvious proposition under this sub-title is, that, to constitute a criminal attempt, in distinction from a substantive offence, the intent must be to do something which would be indictable if done. That doctrine applies only to substantive offences, not to attempts. The reason is, that an attempt is an act proceeding from a malevolence beyond itself; while, in the cases mentioned under the previous title, the evil done, rather than the evil intended, is the foundation of the crime; atleast, the doctrine there and here rests on different grounds. Since, in order to constitute an attempt to do a thing, the complete doing must be intended; it might follow under some circumstances, that, if from change of purpose the consummation is foreborne, there is no attempt." In the case of stabbing, beating or cutting, no offence is committed if the stab, beating or cut intended has not resulted. In other words, the blow has not fallen on the victim. A person aiming a cut with a chopper, if prevented from behind and no cut falls on the victim, no offence is committed. In other words, the blow has not fallen on the victim. A person aiming a cut with a chopper, if prevented from behind and no cut falls on the victim, no offence is committed. But in the case of an attempt as contemplated in S.307 we are confronted with an incomplete act; yet it is indictable, because if that act takes effect the result will be the death of the victim. The act unaccompanied by injuries is sufficient to constitute the offence; but in the case of stabbing or cutting, without injuries no offence is committed. In other words, there is no "act" there other than the causing of the injury. According to the section, the 'act' apart from the causing of the injury must be sufficient in itself to amount to the indictable offence of attempt to murder. In the case of hurt we get no such'act'. It is clear from the section, that the section treats the 'act', as different from causing of the injury. The word "knowledge" appearing in S.307, is 'knowledge of the possible consequence of the act", viz., that if by the act the victim dies the doer of the 'act' would be hauled up for murder and this "knowledge" cannot be equated with "knowledge" dealt with under S.300. There, the knowledge is the knowledge that the injury inflicted is sufficient in the ordinary course of nature to cause death; or that the offender knows that the bodily injury inflicted is likely to cause death or that he knows that the act is imminently dangerous etc. "It is a rule of criminal evidence, not belonging to these volumes, that every man is presumed to intend the natural, necessary and even probable consequences of an act which he intentionally performs; and that, in some circumstances, the presumption is conclusive. Upon this principle, there are some acts made substantive crimes, not so much on account of their inherent evil, as of their tendency to promote ulterior mischief. Upon this principle, there are some acts made substantive crimes, not so much on account of their inherent evil, as of their tendency to promote ulterior mischief. Thus, libels are indictable, because they tend to break the peace, or to corrupt the public morals, or to stir up sedition against the government; bawdy-houses, because their tendency is to corrupt the public morals; forgeries, as tending to defraud individuals or the public; false oaths and affidavits employed in judicial proceedings, preventing the attendance of witnesses, and the like, because they are calculated to pervert public justice; and illustrations of this sort might be multiplied indefinitely. Here, if a man intentionally does the thing, he cannot be heard to say, in his defence, that he did not intend the ulterior mischief. And thence it is that these wrongs are substantive crimes, instead of attempts." (Commentaries on Criminal Law, cited supra, p. 381). In the case of stabbing or cutting, the consequences have, in fact, followed and we need not indulge ourselves in speculation as to what would have been the probable and natural consequences of the act. In such a case we see no ulterior mischief other than the mischief already done, namely the causing of the injury leading to the confinement of the victim in the hospital sometimes. 8. In the case on hand, consequence of the attempted blow was the causing of an abrasion on the left hand of the victim. Beyond that the consequence does not travel. Under S.300 we are dealing with a completed murder and not merely an injury compelling the victim to be in the hospital for a few days. It would also be an incorrect surmise that if the blow had fallen on the head, the victim would have died; because a blow on the head need not necessarily and surely result in death. 9. This, in my view, is the legal concept of the offence of attempt to murder and the courts in India including the Supreme Court have all along proceeded on the above lines, in the above perspective. The Allahabad High Court in Bhagavan Din v. State (AIR. 1967 All. 580) has taken the same view. That was a case of a body of persons armed with guns, revolvers and lathis emerging from a retreat, attacked two persons in the early hours of the morning. The Allahabad High Court in Bhagavan Din v. State (AIR. 1967 All. 580) has taken the same view. That was a case of a body of persons armed with guns, revolvers and lathis emerging from a retreat, attacked two persons in the early hours of the morning. They approached the victims crying "maro" meaning, "kill". Three of the accused who were armed with firearms (two with guns and one with revolver) fired from a short distance of 18 or 20 paces causing injuries to both the victims. Pellets, a good number of them, got stuck up on the body of the victims. The conviction was entered by the High Court only under S.324 IPC., and not under S.307. Death did not ensue because the pellets due to their inherent defect, were incapable of piercing further into the body and cause death. The court observed that to constitute attempt to murder, there must be intention to kill coupled with the potentiality of the act to cause death and in that case according to the learned judges there was only intention; but not the other element. In Sarju Prasad v. State of Bihar (AIR. 1965 SC. 843) the Supreme Court observed: "It is true that the injury was inflicted on a vital part of the body, but the fact remains that no vital organ of the body was injured thereby we are therefore unable to say with anything near certainty that the appellant had such intention or knowledge. In this stats of evidence we must hold that the prosecution has not established that the offence committed by the appellant falls squarely under S.307 IPC. In our opinion it amounts only to an offence under S.324 IPC." In Rekha Mandal v. State of Bihar (19681 S.C.W.R.14), Hidayattulla G. J., would observe: "S. 307 requires, that the act must be done with such intention or knowledge or under such circumstances that if death is caused by that act the offence of murder will emerge. In the present case the offence though serious enough did not go beyond S.324 IPC." That was a case where 17 injuries consisting of incised and punctured wounds, and bruises were caused with dangerous weapons such as farsa, spear and lathi. Medical evidence showed that 8 injuries were caused by farsa, 3 by spear and 6 bruises and abrasions presumably caused with a lathi. 10. Medical evidence showed that 8 injuries were caused by farsa, 3 by spear and 6 bruises and abrasions presumably caused with a lathi. 10. In short, the offence of attempt to murder would emerge if the act attemted, if not prevented or intercepted, is such as to be sufficient to cause the death of victim, and to constitute the offence, no injury need be caused to the victim. If in the course of the attempt bodily injury is also caused the accused will be liable for enhanced punishment. In a completed act of beating, stabbing or cutting, there cannot be an attempt to murder unless intention to kill is clearly proved by circumstances like persistence of the attack on vital parts of the body, or the assailant lying-in-wait armed with dangerous weapon, or declarations made by him that the victim would be killed etc. This intention is not gatherable merely from the seriousness of the resultant injury. In "attempt to murder", we are punishing a person for his intention and not for any injury caused by him and we have, therefore, to be particularly careful in gauging that intention. If the intention is not clearly discernible from the "act"', the accused will have to be acquitted of attempt lest we should commit the sin of punishing a person for something which he did not intend; much less commit. 11. In the present case a blow is stated to have been aimed at the Sub Inspector with an iron rod and that was warded off and the rod itself was seized and in doing so an abrasion is stated to have been caused on the left hand. The Sub Inspector's case is that the blow was aimed at the head and if the blow had actually fallen on the head he would have died. The fallacy of the argument is self-evident. In the first place, a blow on the head need not always result in death; and secondly, this kind of reasoning can glibly be put forward in any case of hurt, even in the simplest. Neither the intention nor the potentiality of the "act" which the section requires has been proved in the case and the accused in the circumstances cannot be held guilty of attempt to murder. Neither the intention nor the potentiality of the "act" which the section requires has been proved in the case and the accused in the circumstances cannot be held guilty of attempt to murder. He is not liable for an offence under S.324 either, since as already found the evidence is neither sufficient nor convincing to warrant a conviction. 12. In the result, the appeal is allowed and the conviction and sentence passed on the appellant are set aside and he is acquitted.