JUDGMENT 1. - This is an appeal directed against the judgment dated 30-6-1980 passed by the Additional Sessions Judge, Ajmer in Sections case No. 2/1980 (new) whereby the accused-appellant, Goma, has been found guilty for the offence under Section 307, Indian Penal Code, and he has been sentenced to undergo three year's rigorous imprisonment and to pay a fine of L 500/- (in default, to further undergo 2 month's RI). 2. Brief facts giving rise to this appeal are that, Ratan Singh (PW 5) lodged a report on September 4, 1979 at Police Station Adarshnagar (Ajmer) alleging therein that his younger brother, Jeet Singh (PW 4) was drawing water from a well, at the time the accused, Goma gave an axe blow on his shoulder (Jeet Singh's) and the accused, Bhoma and Mst. Lali (both have been acquitted) also inflicted injuries on the person of Jeet Singh on his right hand and head. Upon this, a case for the offence under Section 307/34, Indian Penal Code was registered against the appellant Goma, and other accused, Mst. Lali and Bhoma. After usual investigation, the accused, named above, were tried by the Additional Sessions Judge, Ajmer who after completion of trial vide his judgment referred to above, acquitted Mst. Lali and Bhoma but, convicted and sentenced the accused-appellant, as stated in the first para of this judgment. 3. I have heard the learned Counsel for the accused-appellant a ad the learned Public Prosecutor. 4. The first and foremost contention on behalf of the accused-appellant, is that in a cross case registered against the present complainant party for the commission of the offence under Section 302, Indian Penal Code, the persons of the complainant party have been convicted by the learned Additional Sessions Judge; that, in the alleged occurrence, one of the person, Bhairu from the accused side lost his life after sustaining the injuries at the instance of the complainant party and more so, the accused-appellant. Goma also sustained the injuries and that, in this view of the matter, according to the learned Counsel for the accused-appellant the learned trial Judge failed to consider the defence theory and did not give any finding as to whether the complainant party was justified in inflicting the injuries on the persons of the accused-party and thereby causing death of Bhairu, one of the persons from the accused side. 5. 5. Learned counsel for the accused-appellant then added that it has been admitted by the learned trial Judge that Bhairu after sustaining the injuries succumbed to his injuries and the accused, Goma had also sustained injuries; and that, the injuries on the persons of Bhairu & Goma have not been explained by the prosecution eye witnesses. Learned counsel further submitted that Jeet Singh sustained only four injuries all of them are simple in nature-one of the incised wounds is on the left shoulder region-one on just above medial end of left eye brow others on outer side of right elbow joint, and fourth injury is swelling on right anterior region of the head; whereas as per the allegations in the FIR two of the injuries on the person of Jeet Singh PW 4 are alleged to have been inflicted by Mst. Lali & Bhoma who have been acquitted by the learned trial Judge. In this view of the matter, learned Counsel for the accused-appellant vociforcely contended that because, the injuries on the person of Jeet Singh PW 4 attributed to the present appellant are simple in nature and injuries on the person of the accused appellant have not been explained by the prosecution, so looking to the nature of the injuries and condition at the time of sustaining injuries, it cannot be inferred that the accused-appellant had given beating to Jeet Singh PW 4 with intent to commit his murder. Thus, according to the learned Counsel, the accused-appellant deserves acquittal. 6. Learned Public Prosecutor on the other hand submitted that the learned trial Judge decided the case after considering over all aspects of the case and he was justified in convicting and sentencing the accused-appellant for the offence under Section 307, Indian Penal Code. 7. Having considered the points raised by the learned Counsel for the appellant and the learned Public Prosecutor and having browsed through the impugned judgment, let me turn to deal with the contentions raised and the controversy arose for determination. 8. 7. Having considered the points raised by the learned Counsel for the appellant and the learned Public Prosecutor and having browsed through the impugned judgment, let me turn to deal with the contentions raised and the controversy arose for determination. 8. It is an admitted case of the prosecution as per the evidence of Ratan Singh PW 5, Dhanna PW 6 and Kishan Singh PW 10 that during the course of the same brawl in regard to an incident in question, the persons from the accused side, Goma and Bhairu (since deceased) and Jeet Singh PW 4 sustained injuries - as a result of which, one of the persons, Bhairu, of the accused-side died on 4-9-1979 at the hospital; and in that context, the learned trial judge has held that the prosecution witnesses had not narrated the incident truly because they failed to explain injuries on the person of the accused Goma and Bhairu (deceased) and that, the evidence of the .proecution witnesses was tainted with some bias. The learned trial Judge also came to the conclusion that all the injuries found on the person of Jeet Singh PW 4 are simple whereas the accused Goma and the deceased Bhairu sustained grievous injuries, and in these circumstances, the learned trial Judge found the case against the accused party as unreliable. The learned Additional Sessions Judge after discussing the evidence of Ratan Singh PW 5 and Dhanna PW 6 came to this conclusion that these witnesses are suppressing some sort of truth and are not coming with clear and straight forward statements in as much as they are not explaining in clear terms how Bhairu received injuries and it cannot be accepted that Goma, who is the son of Bhairu had caused injuries to his father. The learned trial Judge further observed that the injuries on the body of Goma are being explained by witnesses of the prosecution but with some choked tongue. Then the learned trial court admitted in his judgment that the position of law is that silence on the part of prosecution witnesses in regard to the various injuries found on the bodies of any of the accused and another party (who died) shows that the evidence relating to the incident is not true or at any rate, not wholly true. 9. 9. How ever, after over all consideration of the prosecution evidence, the learned trial Judge came to the conclusion that even the version given in the FIR (Ex. P 7) which was given at the very time, is not fully correct and this shows that the statements of the prosecution witnesses in the present case are tainted with some bias, and they are not stating truth in the court and this may be due to that they are accused in a murder trial in a cross-case. 10. Even after the findings which I have referred to above, the learned trial Judge convicted the accused-appellant. The admissions wrong out from the prosecution case itself, shows that the learned trial Judge has utterly failed to apply his mind judiciously and he has de-railed from his own findings which totally find favour with the accused-appellant and thus, he was not justified in convicting the accused-appellant for the offence under Section 307, Indian Penal Code which has been based on simple injuries on the person of Jeet Singh in as much as two of the injuries are alleged to have been inflicted by Mst. Lali and Bhoma to whom the learned trial Judge has clearly acquitted of the offence of Section 307, Indian Penal Code. It was not the prosecution case before the trial court that after receiving the injuries, Jeet Singh (PW 4) became unconscious or that his general condition was abnormal. In view of the fact that Jeet Singh (PW 4) sustained simple injuries and that his general condition was normal just after the occurrence, thus no inference of committing his murder can be drawn against the accused-appellant because, in order to constitute an offence of Section 307, Indian Penal Code, it is obligatory on the part of the prosecution to establish by direct or indirect evidence that intention of the accused at the time of commission of the offence was to commit murder and such an intention can be gathered by the circumstances and for this purpose, the general condition of the injured after the occurrence and the injuries on his person are very much significant and relevant in order to draw an inference about the intention of the assailant. As said earlier, in the present case, the general condition of the injured, Jeet Singh (PW 4) was normal after the brawl and he sustained two injuries at the hands of the accused-appellant, Goma-both too were simple. From the evidence it appears that there was none to interfere and interference in the commission of the offence and under these circumstances, there was no hindrance before the accused-appellant to have fulfilled his intention, if he had any, by causing serious injuries on the person of Jeet Singh (PW 4).But this is not the prosecution case that somebody tried to rescue Jeetsingh (PW 4) at the time when the accused-appellant was inflicting injuries on his person and because of that intervention the accused-appellant failed to achieve his object of killing Jeet Singh (PW 4). The features referred to above, cannot be eschewed as irrelevant for constituting the offence of Section 307, Indian Penal Code, and in the present case the learned trial Judge has eschewed all the above referred features by derailment from his own findings. Thus, having benefitted by the enlightenments exposed above, I am not at all prepared to accept that irrespective of the result, there are reasons to believe that the accused-appellant was having intention or knowledge as is mentioned in Section 307, Indian Penal Code. This is correct to save that attempt in order to be a criminal need not be pre-arranged act. It is sufficient under the law if there is present an intent, coupled with some overt act in execution thereof. For purposes of criminal liability, it is sufficient, if the attempt had gone so far that the crime would have been completed but for the extraneous intervention which frustrated its consummation. 11. The learned trial Judge found the accused appellant guilty for the offence under Section 307, Indian Penal Code only on the ground that he inflicted injury on the body of Jeet Singh (PW 4) with an axe and as per the injury report, Jeet Singh (PW 4J sustained three injuries by sharp weapon and one of them was on the left shoulder region which part has been held by the learned trial Judge as a vital part of the body but he observed that if there might have been a slight variation on the fall of axe, Jeet Singh (PW 4) could have died on the spot. In my opinion, the learned trial Judge eschewed this fact as to what was the reason that the variations occurred on the fall of the axe, because none of the prosecution witnesses have deposed that because of some intervention, the variations took place. 12. Under these circumstances, I am not inclined to uphold the findings of the learned trial Court on this point that the accused-appellant committed the offence with intention to commit murder of Jeet Singh. In this view of the matter, the learned trial Judge was totally wrong in applying its mind and he totally failed to appreciate the criminal jurisprudence and thus was not justified in convicting and sentencing the accused-appellant for the offence under Section 307, PC. 13. As said earlier, it is an admitted case that in this very incident in question, the accused-appellant Goma, had sustained grievous injuries his father lost his life because of the injuries inflicted by the complainant party. The learned trial Judge, himself, admitted that the injuries on the person of Bhairu has not at all been explained by the prosecution and similar is the case in regard to the accused-appellant, Goma, whose injuries have also not been explained by the prosecution. 14. In Lakshmi Singh v. State of Bihar [ AIR 1976 SC 2263 ] , it has been observed as under: It is well settled that fouler the crime, higher the proof, and hence in a murder case where one of the accused is proved to have sustained injuries in the course of the same occurrence, the non-explanation of such injuries by the prosecution is a manifest defect in the prosecution case and shows that the origin and genesis of the occurrence had been deliberately suppressed which leads to the irresistible conclusion that the prosecution has not come out with a true version of the occurrence." (Para 11). 15. In view of the principles laid down by their Lordships of the Apex Court in the above quoted decision, it cannot be said that in the present case, the offence has been proved against the accused beyond reasonable doubt and thus, the accused becomes entitled for his acquittal. 16. 15. In view of the principles laid down by their Lordships of the Apex Court in the above quoted decision, it cannot be said that in the present case, the offence has been proved against the accused beyond reasonable doubt and thus, the accused becomes entitled for his acquittal. 16. As stated earlier, the learned trial Court, itself admitted that the prosecution witnesses are suppressing some sort of truth and are not coming with clear and straight forward statements and they are not explaining in clear terms how Bhairu received injuries and it cannot be expected that Goma who is the son of Bhairu had caused injuries to his father. Thus, even after these findings, in my opinion, this is one of the cases where the* judgment of the trial Court is manifestly perverse and where the trial Court has not considered important circumstances which completely demolish the prosecution case. And the learned trial Judge has not only committed an error of fact but an error of law by showing lack of proper appreciation of the principles laid down by the Apex Court. For these reasons, therefore, the learned trial court was not justified in convicting the accused-appellant for the offence under Section 307, Indian Penal Code. 17. In the result, this appeal is accordingly allowed, the conviction and sentence passed on the appellant are set aside and appellant is acquitted of the charge framed against him. The appellant is on bail, his bail bonds stand cancelled, and he need not surrender.Appeal allowed. *******