Order.- P.W. 1 in C.C. No. 257 of 1955 on the file of the Sub-Divisional Magistrate, Hosdrug has come up in revision. He is the victim of assualt in the case and it was alleged by him that at about 7 p.m. on 3rd October, 1965 accused 1 to 4 and one Raghali Kunhappa attacked him and his brother and inflicted stab wounds on them. He was stabbed in the chest and on the hand and his brother on his abdomen and other parts of the body. He was rendered unconscious by the injuries sustained. His intestines came out and he was in an unconscious state for three days. His statement was recorded in the hospital by the Head Constable of Kasaraged Police Station and on the statement a case was registered and that was later on transferred to the Adhur Police Station since the occurrence had taken place within the jurisdiction of that station. The Adhur Police investigated and charge-sheeted he accused under sections 148, 324 and 326 read with section 149, Indian Penal Code. Raghali Kunhappa was absconding and so accused 1 to 4 alone were put on tria1. 13 witnesses were examined for the prosecution. The learned Magistrate on the conclusion of the trial found the first accused guilty under section 324, Indian Penal Code and sentenced him to R.I. for 6 months. He was also found guilty under section 326, Indian Penal Code and sentenced to R.I. for one year-the sentences are directed to run concurrently. Accused 2 to 4 were acquitted. The State has not come up in appeal. In this revision which is evidently one under section 439 of the Code, the ground taken is that the learned Magistrate has dropped the more serious charge of attempt to murder and tried only those offences which he is competent to try and that has resulted in grave injustice. He is also aggrieved against the order of acquittal. I do not think the petition is sustainable. Here, on the materials available before Court the gravest charge that was found disclosed, was the one falling under section 326, Indian Penal Code. The accused were tried on that charge and the trial also has ended in the conviction of one of the accused and acquittal of the others. I do not think the petition is sustainable. Here, on the materials available before Court the gravest charge that was found disclosed, was the one falling under section 326, Indian Penal Code. The accused were tried on that charge and the trial also has ended in the conviction of one of the accused and acquittal of the others. The question now is whether they could be put on trial ?gain on the seme facts, on the ground that from the facts proved in the case the offence that would stand revealed is the one falling under section 307 and not under section 326 or 324, Indian Penal Code. The petitioner has no case that subsequent to the trial, further evidence has come to light which would show that the offence committed was attempt to murder and not grievous hurt by dangerous weapon. Even if new facts have come to light, there is no authority for holding that when a man has been convicted for committing an act constituting an offence, he could be put on trial again for a graver offence if subsequently further evidence has come to light in support of it. On this analogy it was held in Nga Shweyi v. Emperor1, that a person convicted under section 31 of the Rangoon Police Act for being in possession of articles supposed to be stolen, could not be tried again for an offence under section 457, Indian Penal Code, merely on the ground that the owner of the article is traced and some further evidence is available. The case of the petitioner is that the Magistrate had shelved the charge under section 307, Indian Penal Code, since he had not the jurisdiction to try a charge under section 307. But in fact this is not so. The trial was proceeded with on a charge under sections 324 and 326, etc., to the knowledge of this complainant and without any protest from him. If, in fact, he had materials to show that the offence was one falling under section 307 and he had a real grievance on that point he could have taken up the matter with the Magistrate then and there and in case he did not succeed he could have pursued the point with the appellate Court in revision. If, in fact, he had materials to show that the offence was one falling under section 307 and he had a real grievance on that point he could have taken up the matter with the Magistrate then and there and in case he did not succeed he could have pursued the point with the appellate Court in revision. But on the other hand, he co-operated with the trial and the trial went on proper lines to his knowledge. At the final stage of the argument, however, a point was, raised by the A.P.P. that on the facts proved in the case it could be seen that the offence really made out is one of attempt to murder under section 307 and the proper course open to the Court was to commit the accused to the Sessions. But the learned Magistrate was of the view that such a step was not called for in the circumstances of the case and on an analysis of the evidence, he held the view that no case under section 307 was disclosed. I agree with the learned Magistrate in his view that a case of attempt to murder is not made out by the evidence in the case. In a case of attempt to murder the ingredients to be proved by the prosecution are: (1) the accused had the intention to kill and that intent existed in his mind at the time of the commission of the act; (2) the act by which the death was intended to be caused is an act done under circumstances that death might be caused if the act took effect; and (3) if the act has taken effect the injury is sufficient in the natural and ordinary course of things to cause death. It is clear from the facts of the present case that intention to kill could not have entered the mind of the accused at the time of the act, much less at a time antecedent to it, because it was all a casual meeting. The facts are that on 3rd October, 1965, the date of incident, at about 7 P.M. P.W. 1 arrived at the shop of Kunhambu, P.W. 2, and was taking tea there. After sometime Krishna Maniyani P.W. 12 arrived in a jeep and stopped it near the tea shop on the north. The facts are that on 3rd October, 1965, the date of incident, at about 7 P.M. P.W. 1 arrived at the shop of Kunhambu, P.W. 2, and was taking tea there. After sometime Krishna Maniyani P.W. 12 arrived in a jeep and stopped it near the tea shop on the north. At that time, accused 1 to 4 and Raghali Kunhappa came there, when Krishna Maniyani was talking with P.Ws. 3 and 4. Then accused 1 to 4 and Raghali Kunhappa told Krishna Maniyani that P.W. 1’s brother Kunhikannan assisted the forester in detecting the cutting of sandalwood trees by the accused. Krishna Maniyani told them that he would not interfere in the matter. At that time P.W. 1 came outof the hotel and asked the accused not to abuse persons not present. A quarrel ensued and Raghali Kunhappa caught P.W. 1 from behind. Then the first accused stabbed him with a knife on the right side of his chest. P.W.1cried out and hearing his cries, his brother Kunhambu came there and the was also assaulted, etc. It is clear from the above that it was a sudden quarrel and in the nature of things the accused could not have come there with the intention of taking revenge on P.W. 1 or his brother. The first ingredient in the offence of attempt to murder is the intention to kill In R. v. Cruse1, Patterson, J., told the jury: "Before you can find the prisoner, guilty of this felony, (attempt to murder) you must be satisfied that when he inflicted this violence on the chile, 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 ensured, that will not be sufficient, unless he actually intended to commit murder.” So even if the act committed is sufficient in the natural and ordinary course of things to result in death, the accused cannot be charged with attempt to murder unless he had the intention to kill, from the very beginning. So also the converse, that even if the accused had the intention, if the act committed is not capable of causing death or that the act was done with such intention and was not likely in the belief of the accused to cause death he cannot be charged with attempt to murder. So also the converse, that even if the accused had the intention, if the act committed is not capable of causing death or that the act was done with such intention and was not likely in the belief of the accused to cause death he cannot be charged with attempt to murder. Thus, we see that the intention is the most important ingredient and when once that is not made out, the accused cannot be convicted of attempt to murder, even if the act committed is sufficient to cause death under normal circumstances. Applying the principles to the facts of the present case it has to be held that since the intention to kill was not there, the accused could not be convicted of attempt to murder. So I do not see any reason to interfere with the order passed by the learned Magistrate. The Revision Petition fails and it is dismissed. M.C.M. ----- Revision Petition dismissed.