R. K. PATRA, J. ( 1 ) THE petitioner and two of his associates were tried on Charges under Ss. 149/307, 149/323 and 380/34 of Indian Penal Code (for short, 'ipc'), in Court of the Assistant Sessions Judge, Sambalpur. The learned Trial Judge acquit ted petitioner's associates under S. 232, Cr. P. C. He did not find the petitioner guilty of the offences under Ss. 149/323 and 380/34 of IPC. The petitioner was, however, found guilty under S. 307 of IPC and convicted thereunder. He was sentenced to undergo rigorous imprisonment for three years. Against the said conviction and sentence, the petitioner pre ferred appeal before the learned Sessions Judge, Sambalpur which ended in dismissal. Hence this revision. ( 2 ) WHILE admitting, this revision, this Court by order dated 20-7-1987 issued notice to the petitioner calling upon him to show cause as to why the sentence shall not be enhanced. ( 3 ) BRIEFLY stated, the prosecution case is that on 4-12-1982 at about 5 p. m. a Matador F. C. vehicle came from Sambalpur side and stopped on the main road of village Thalkuli. About 20 to 25 persons between the age group of 20 to 30 years including the petitioner got down from the vehicle. They were armed with deadly weapons like knives, iron rods and thengas. They first surrounded Bhagirathi (P. W. 1), Arjun (P. W. 3), Sudhansu (P. W. 4), Bharat (P. W. 5), Nirakar (P. W. 10) and some others who were standing near a hotel and started assaulting them. Out of fear of life, the victims ran helter skelter. In that process P. Ws. 1 and 4 entered inside a nearby grocery shop. Some of the culprits forcibly entered inside the shop and pulled out P. Ws. 1 and 4. It is the allegation of the prosecution that the petitioner by means of a knife held by him dealt a blow on the left side chest of P. W. 1. Another culprit assaulted P. W. 4 by means of iron rod. As a result of such assault, both P. Ws. 1 and 4 fell down. The culprits thereafter left the place of occurrence. P. W. 4 lodged FIR at Jharsuguda police station at about 5 -45 p. m. on the same day. ( 4 ) THE plea of the petitioner was one of denial. As a result of such assault, both P. Ws. 1 and 4 fell down. The culprits thereafter left the place of occurrence. P. W. 4 lodged FIR at Jharsuguda police station at about 5 -45 p. m. on the same day. ( 4 ) THE plea of the petitioner was one of denial. ( 5 ) THE conviction of the petitioner is based on the evidence of the injured (P. W. 1) and P. W. 3 (eye witness) and the evidence of the doctor, P. W. 7. ( 6 ) LEARNED counsel for the petitioner first con tended that the conviction under S. 307 of IPC cannot be sustained in view of the discrepancy in the evidence. P. W. 7 is the doctor who examined P. W. 1 on police requisition on the date of occurrence at about 7-15 p. m. Ext. 5 is the injury report. We may at this stage note the perfunctory manner in which the learned Assistant Sessions Judge recorded the evidence of the doctor. By merely marking the injury report as Ext. 5 he remained satisfied without eliciting evidence from the doctor in respect of the injury. The contents of Ext. 5 should have been put through the mouth of the doctor P. W. 7 which the learned Assistant Sessions Judge has failed to do. The injury report Ext. 5 shows that P. W. 1 had sustained the following injuries on his person. "1. One lacerated injury scalp. 1-3" margins irregular and gaping. 2. One incised wound 1-3/4 " margins clean cut without bruising. Tails off anteriorly on vertex of head simple may have been caused by some hard blunt object on left side of chest in 4th intercestal space on anterior axillary Line. Simple may have been caused by some cutting instrument. "p. W. 1 has testified that on the date of occurrence between 4 to 5 p. m. he along with P. W. 4, P. W. 5 and others took tea in a hotel at Thalkuli bus stand crossing. After taking tea some of his friends left the hotel whereas he was sitting in a nearby cloth store. At that time he noticed, a Matador came from Samblpur side and went towards Jharsagudia. Af ter a few minutes that vehicle came back and halted near the bus stand crossing. After taking tea some of his friends left the hotel whereas he was sitting in a nearby cloth store. At that time he noticed, a Matador came from Samblpur side and went towards Jharsagudia. Af ter a few minutes that vehicle came back and halted near the bus stand crossing. About 20 to 25 persons armed with iron rods, lathis, thujalis and knives got down from the vehicle and rushed towards him for attack. One of them assaulted him with a long spoon taking that from the hotel. Out of fear he entered inside the adjoining grocery shop. Some of the culprits including the petitioner entered inside the grocery shop. Thereafter, the petitioner stabbed on his left side chest with a knife causing profuse bleeding. After the assault they all left the place of occurrence. P. W. 1 was subjected to through cross examination but nothing has been brought out to discredit his testimony. P. W. 3 along with P. W. 1 had entered into the grocery shop where the assault took place. He (P. W. 3) has also stated that it was the petitioner who assaulted on the chest of P. W. 1 with a knife. In the FIR. P. W. 4 had mentioned that the brother of one Kanhu Kishore Bohidar assaulted on the left side of chest of P. W. 1 by means of a knife. On the basis of the aforesaid evidence, we are satisfied that it was the petitioner who assaulted P. W. 1 with the knife held by him causing a simple injury on the left side of his chest. ( 7 ) SHRI Panda, learned counsel for the petitioner, relying on the judgment of the Supreme Court in Rekha Mandal v. State of Bihar, 1988 0 SCD 808 next submitted that as the petitioner has caused simple injury on P. W. 1 with a knife, the offence would fall under S. 324 of IPC and not under S. 307 of IPC. Shri P. C. Rout, learned Additional Standing Counsel, submitted that merely because the injury caused by the petitioner was found to be simple in nature, the offence cannot be taken out of the purview of S. 397 of IPC. In this connection, he placed reliance on the judgment of the Supreme Court in State of Maharashtra v. Balram Bewa Patil, AIR 1983 SC 305 . In this connection, he placed reliance on the judgment of the Supreme Court in State of Maharashtra v. Balram Bewa Patil, AIR 1983 SC 305 . ( 8 ) SECTION 307 of IPC reads as follows : -"307. Attempt to murder - 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 pun ished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to impris onment for life or to such punishment as is hereinbefore mentioned. Attempts by life convicts. . . . . . . . . . . . . . " ( 9 ) READING of the aforesaid would show that the second limb of the Section refers to causing of hurt whereas the first part does not refer to hurt as such. It means that an 'act' may amount to an attempt to murder even if the 'act' causes no hurt to any one and if hurt is caused, the assailant is liable to a heavier punishment as provided in the Section. If an accused without causing any bodily injury attempts to com mit murder by administering poison as illustrated in (d) of S. 307, IPC, the same would be a case coming under the first limb of the Section. ( 10 ) THE scope of S. 307, IPC and its applicability came up for consideration in Om Parkash v. State of Punjab, AIR 1961 SC 1782 : (1961 (2) Cri LJ 848 ). After taking note of apparent divergent views ex pressed by the Bombay High Court in the matter, the Supreme Court in paragraph 9 of the judgment observed as follows :". . . . . . . . . . ON a parity of reasoning, a person com mits an offence under S. 307 when he has an inten tion to commit murder and, in pursuance of that intention, does an act towards its commission irre spective of the fact whether that act is the penultimate act or not. . . . . . . . . . ON a parity of reasoning, a person com mits an offence under S. 307 when he has an inten tion to commit murder and, in pursuance of that intention, does an act towards its commission irre spective of the fact whether that act is the penultimate act or not. It is to be clearly understood, however, that the intention to commit the offence of murder means that the person concerned has the intention to do certain act with the necessary intention or knowl edge mentioned in S. 100. The intention to commit an offence is different from the intention or knowl edge requisite for constituting the act as that offence. The expression 'whoever attempts to commit an offence' in S. 511, can only mean 'whoever intends to do a certain act with the intent or knowledge necessary for the commission of that offence'. The same is meant by the expression 'whoever does an act with such intention or knowledge and under such circumstances that if he by that act caused death, he would be guilty of murder' in S. 307. This simply means that the act must be done with the intent or knowledge requisite for the commission of the of fence of murder. The expression 'by that act' does not mean that the immediate effect of the act com mitted must be death. Such a result must be the result of that act whether immediately or after a lapse of time. "in that case the accused starved his wife and denied food to her for days together and did not allow her to leave his house. On account of the mal treatment and under-nourishment her health dete riorated to a great extent, She, however, managed to escape from the house to reach the hospital. The Supreme Court held that the course of conduct adopted by the accused in regularly starving his wife in order to accelerate her death case within the purview of S. 307, IPC though it was not the last act which if effective would cause the death. Om Prakash (1961 (2) Cri LJ 848) (supra) was a case in which the accused was found guilty under S. 207 of IPC although he did not cause any bodily hurt to the victim. Om Prakash (1961 (2) Cri LJ 848) (supra) was a case in which the accused was found guilty under S. 207 of IPC although he did not cause any bodily hurt to the victim. In Sarju Prasad v. State of Bihar, AIR 1965 SC 843 : (1965 (1) Cri LJ 766), a Three-Judge Bench of the Supreme Court relying on the ratio of Om Parkash (supra) held that the mere fact that the injury inflicted by the assailant did not cut any vital organ of the injured is not by itself sufficient to take the act out of the purview of S. 307, IPC. Their Lordships hastened to observe that the burden is still upon the prosecution to establish that the intention or knowl edge of the assailant in causing the particular injury to the injured was of any of the three kinds referred to in S. 300, IPC. For, unless the prosecution dis charges the burden, the offence under S. 307, IPC cannot possibly be brought home to the assailant. The State of assailant's mind has to be deduced from the surrounding circumstances and the existence of motive to cause the death may be a relevant circum stance. In State of Maharashtra v. Balram Bama Patil (1983 Cri LJ 331) (supra) it has been held that the charge under S. 307, IPC does not fail merely because the injuries inflicted on the victim are in the nature of simple hurt. The High Court had acquitted the accused of the charge under S. 307, IPC solely because the injuries inflicted on the victim were in the nature of simple hurt. In reversing the said finding, the Supreme Court in paragraph 9 of the judgment has observed as follows :". . . . . . . . . . TO justify a conviction under this S. 307, IPC it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often be considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases be ascertained without any reference at all to actual wounds. The Section makes a distinction between an act of the accused and its result, if any. The Section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in whn which the culprit would be liable under this Section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in this Section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof. " ( 11 ) IN view of our finding that it was the peti tioner who assaulted P. W. 1 with the knife causing simple injury on his left side of the chest, it has to be examined as to what offence was committed by the petitioner - whether it was one under S. 324, IPC or under S. 307, IPC. The charge framed against the petitioner and his associates stated that they along with more than five others were members of an unlawful assembly and in prosecution of the com mon object of taking revenge by assaulting P. W. 1 and his co-villagers, one of the members, namely, the petitioner committed an act, to wit stabbed on the chest of P. W. 1 with a knife with such intention or knowledge and under such circumstances that if by that act he had caused the death of P. W. 1, he would have been guilty of murder by that act he caused hurt to P. W. 3 and thereby committed an offence punishable under Ss. 149/307, IPC. While affirming the conviction of the petitioner under S. 307, IPC. , the learned Sessions Judge in the im pugned judgment has observed as follows :"the left side of the chest is a vital part of the body and to stab a person on that part has to be considered to be dangerous. It is difficult to con clude as to how P. W. 1 escaped without injury to the heart, etc. It is difficult to con clude as to how P. W. 1 escaped without injury to the heart, etc. But so far as the intention of the assailant is concerned, there seems to be little doubt that he intended to do away with P. W. 1. . . . . . . " ( 12 ) P. W. 4, the informant, in his FIR has narrated the incident in detail. He has stated that on the date of occurrence at about 9 p. m. in the evening when P. W. 1 and others were talking in front of the hotel, a vehicle came and halted. About 30 to 35 young persons in the age group of 20 to 30 came out from the vehicle who were armed with knives, iron rods and other deadly weapons and surrounded and at tacked them. They all out of fear ran helter-skelter. P. W. 4, P. W. 1 and one Hari Tripathy entered inside a nearby grocery shop. About 4 to 5 culprits forcibly made entry into the shop and dragged them. One of the culprits was petitioner (although P. W. 4 has not named the petitioner but described him to be the brother of Kanhu ). The petitioner declaring that P. W. 1 had become a lender and that he would kill him, assaulted on the left side chest of P. W. 2 with the knife. P. W. 1 (the injured) has given a different story by stating that because Kanhu asked to kill him (P. W. 1) the petitioner came and stabbed on his left side chest with the knife. In view of such inconsis tent version as to who had intended to kill P. W. 1 - whether it was Kanhu or the petitioner - it cannot be held that the prosecution has been able to estab lish that the petitioner had intended to kill P. W. 1. can it be next said that the petitioner committed the 'act' with knowledge that the said 'act' would have amounted Co murder. The evidence in the case falls short of this proof also. In order to constitute an of fence punishable under S. 307, IPC, prosecution has to establish that the accused did an 'act' with such guilty intention or knowledge and in such circumstances, that but for some intervening reason the 'act' would have amounted to murder. The evidence in the case falls short of this proof also. In order to constitute an of fence punishable under S. 307, IPC, prosecution has to establish that the accused did an 'act' with such guilty intention or knowledge and in such circumstances, that but for some intervening reason the 'act' would have amounted to murder. In other words, the intention or knowledge of the accused must be such as is necessary to constitute the murder. In a case dealing with causing of hurt, the intention or knowledge of the accused can be gath ered from the nature of the weapon used, the inten tion expressed by him at the time of the act, the motive for commission of the offence, the nature and the size of injuries, the parts of the body of the victim where injuries were caused, the severity of the blow or blows and other important circum stances. A case cannot b taken out of the purview of S. 307, IPC merely on the basis that the injuries on the victim are found to be simple a nature. Each case has to be decided on its own facts and circumstances. No two cases can be or are in all respects alike. What is the proper inference to be drawn from proved facts and circumstances is a totally different matter. In the present case as the prosecution has failed to establish the intention or knowledge of the petitioner that by his 'act' an offence of murder of P. W. 1 could have been committed and having regard to the circum stances in which P. W. 1 was assaulted, the injury sustained by him and other circumstances, we ex tend the benefit of doubt in respect of the offence under S. 307, IPC. Because of our finding that the petitioner had caused simple injury on the chest of P. W. 1 with a knife, we hold him guilty under S. 324, IPC. ( 13 ) BEFORE parting with the judgment, we may refer to the case of Rekha Mandal (supra ). We may state that Supreme Court in Rekha Mandal (supra) has not held that merely because the injuries on the victim were of simple nature, a case would not come under S. 307, IPC. ( 13 ) BEFORE parting with the judgment, we may refer to the case of Rekha Mandal (supra ). We may state that Supreme Court in Rekha Mandal (supra) has not held that merely because the injuries on the victim were of simple nature, a case would not come under S. 307, IPC. It appears from the said judgment that the injured in that case had eight injuries on his person caused by farsa, three by spears and six by bruises and abrasions presumably caused with lathi. Having regard to the injuries and its location on the person of the injured, the Supreme Court observed :". . . . MEDICAL evidence did not disclose that any of the injuries were cumulatively dangerous to life and the question therefore is whether in these cir cumstances it could be held that the offence dis closed was one under S. 307 of the Indian Penal Code. That Section requires that the act must be done with such intention or knowledge or under such circumstances that if death be caused by that act, the offence of murder will emerge. In the present case on the evidence of the medical expert examined, it cannot be considered that this requirement has been met. . . . . . . . . . It is also worthy of note that it is not disclosed in the evidence who wielded which weapon. . . . . . . . . . " (Emphasis supplied) neither intention nor knowledge necessary for commission of an offence under S. 300, IPC was proved in that case. On the facts and circumstances of that case, the Supreme Court altered the convic tion from one under S. 307 to S. 324, IPC. ( 14 ) IN the result, we hold the petitioner guilty under S. 324 of IPC and convict him thereunder. He is sentenced to undergo rigorous imprisonment for six months. ( 15 ) CRIMINAL revision is allowed in part. Rule for enhancement of sentence is discharged. ( 16 ) S. K. MOHANTY, J. :- I agree. Order accordingly. .