Judgment SUNIL KUMAR GARG, J. ( 1 ) THIS appeal has been preferred by the accused appellant Santokh Singh against the judgment and order dated 6-11-87 passed by the learned Additional Sessions Judge No. 1 Hanumangarh in Sessions Case No. 42/85 whereby the learned Additional Sessions Judge convicted the accused appellant for offence under Section 307 and Section 326, I. P. C. and sentenced him as under : name of Accused convicted under Sec. Sentence Awarded santokh Singh 307, I. P. C. 4 years R. I. and a fine of Rs. 100 in default to further undergo 15 days S. I. Santokh Singh 326, I. P. C. 3 years R. I. and a fine of Rs. 100 in default to further undergo 15 days S. I. Both the sentences were ordered to run con-currently # ( 2 ) IT arises in the following circumstances: i) On 20-1-85 at about 4 a. m. an oral report Ex. P/7 was lodged by P. W. 4 Ajmer Singh in the police Station Tibi, Dist. Sri Ganganagar (at the relevant time) before P. W. 5 Hardeep Singh stating that land of accused appellant was adjoining to his land in whiche he had made a Dhani, as a result of which cattle belonging to the accused appellant used to damage his crops etc. and for that he and his brother P. W. 1 Gurmel Singh gave warning to the accused appellant. It is further stated in the report that because of warning, the accused appellant became angry. It is further stated in the report Ex. P/7 that in the morning of 19-1-85, he, his brother P. W. 1 Gurmel Singh, P. W. 6 Tek Singh, P. W. 2 Sardul Singh, P. W. 3 Kor Singh and Balor Singh went to the field for the purpose of taking fertilizer in the trolley of P. W. 6 Tek Singh and at about 7. P/7 that in the morning of 19-1-85, he, his brother P. W. 1 Gurmel Singh, P. W. 6 Tek Singh, P. W. 2 Sardul Singh, P. W. 3 Kor Singh and Balor Singh went to the field for the purpose of taking fertilizer in the trolley of P. W. 6 Tek Singh and at about 7. 30 p. m. in the evening when they were returning to their village, Santokh Singh boarded the trolley and the trolley was stopped at the house of P. W. 2 Sardul Singh at 9 p. m. It was further stated in the report that P. W. 1 Gurmel Singh asked the accused appellant as to why his cattle used to damage their crops, on which altercation took place between P. W. 1 Gurmel Singh and the accused appellant and at that time, the accused appellant was having a sword (Kripan) in his hand and he gave sword blow on the left side of scalp near ear of P. W. 1 Gurmel Singh, as a result of which P. W. 1 Gurmel Singh fell down and profuse bleeding started. On being cried, the accsed appellant ran away from the scene and P. W. 1 Gurmel Singh was got admitted in the hospital at Hanumangarh. # ( 3 ) ON this report, police chalked out regular FIR Ex. P/7 and started investigation. # ( 4 ) DURING investigation P. W. 1 Gurmel Singh was got medically examined by P. W. 7 Dr. Rajkumar on 20-1-85 and his injury report is Ex. P/13 which shows that he received two injuries. The X-ray report of P. W. 1 Gurmel Singh is Ex. P/17 which shows that there was fracture on left mustoid process. # ( 5 ) THE accused appellant was arrested through Fard Ex. P/9 on 26-1-85 and during arrest he gave information about recovery of sword to P. W. 5 Hardeep Singh and same was reduced into writing by P. W. 5 Hardeep Singh and the same is Ex. P/10. P. W. 5 Hardeep Singh recovered a sword at the instance of the accused appellant through Fard Ex. P/11 in presence of two motbir witnesses P. W. 6 Tek Singh and P. W. 2 Sardul Singh. P/10. P. W. 5 Hardeep Singh recovered a sword at the instance of the accused appellant through Fard Ex. P/11 in presence of two motbir witnesses P. W. 6 Tek Singh and P. W. 2 Sardul Singh. ( 6 ) AFTER investigation police filed challan against the accused appellant in the Court of Magistrate, from where the case was committed to the Court of Sessions Judge, Hanumangarh from where it was transferred to the Court of Addtional Sessions Judge No. 1, Hanumangarh. ( 7 ) ON 18-9-86 the learned Additional Sessions Judge framed charges for offence under Sections 307 and 326, I. P. C. against the accused appellant who pleaded not guilty and claimed trial. ( 8 ) DURING trial, the prosecution examined as many as 7 witnesses in support of its case. The accused in his statement under Section 313, Cr. P. C. denied to have committed any offence and one witness was examined in defence. ( 9 ) AT the conclusion of the trial, the learned trial Judge through his judgment and order dated 6-11-87 convicted and sentenced the accused appellant as stated above. # ( 10 ) AGGRIEVED from the said judgment and order, this appeal has been filed by the accused appellant. ( 11 ) IN this appeal, the learned counsel for the accused appellant has raised following submissions : i) Since statement of P. W. 1 Gurmel Singh is not corroborated by the statement of P. W. 2 Sardul Singh, P. W. 3 Kor Singh, and P. W. 4 Ajmer Singh, therefore, no reliance should be placed on the solitary statement of P. W. 1 Gurmel Singh as his sole statement is not sufficient to prove the case of the prosecution for the offences charged against him. ii) If at the most, the Court comes to the conclusion that the accused appellant committed any offence, the offence committed by the accused appellant would be under Section 326, I. P. C. and not under Section 307, I. P. C. as in causing injuries to P. W. 1 Gurmel Singh, no intention on the part of accused appellant to murder P. W. 1 Gurmel Singh can be gathered. iii) If at the most, Court comes to the conclusion that accused appellant has committed offence under Section 326, I. P. C. he should be released on undergone as he has remained in jail for the period from 26-1-85 to 11-3-85 and from 6-11-87 to 26-11-87 and at the most, if the Court thinks proper, some compensation be awarded to the injured P. W. 1 Gurmel Singh. ( 12 ) ON the other hand, the learned P. P. has submitted that the judgment and order passed by the learned Additional Sessions Judge are based on correct appreciation of evidence and they do not call for any interference by this Court. ( 13 ) I have heard both and perused the record and impugned judgment. ( 14 ) BEFORE proceeding further, medical evidence n this case has to be seen which is found in the statement of P. W. 7 Dr. Rajkumar, P. W. 7 Dr. Rajkumar has stated that on 20-1-85 he examined P. W. 1 Gurmel Singh and found following two injuries on his person. I) Incised wound 4" x 1-" x bone deep - behind the left ear over mastoid process which is cut. Loose pieces of bone also present. ii) Incised wound 1" x 1/4" x 1/2" - below the injury No. 1 behind the pina of left ear. # ( 15 ) P. W. 7 Dr. Rajkumar has proved his injury report Ex. P/13, P. W. 7 Dr. Rajkumar has clearly stated that injury No. 1 was grievous one. He has further stated that he advised X-ray for the injuries of P. W. 1 Gurmel Singh and after seeing the X-ray report Ex. P/17, he has confirmed that injury No. 1 was grievous one. Thus, from every point of view, injury No. 1 has been duly proved by the prosecution as grievous one and both the injuries were caused by the accused appellant by sharp edged weapon and injury No. 2 is just near to the injury No. 1. # ( 16 ) THE next question is whether these injuries on the person of P. W. 1 Gurmel Singh were caused by the accused appellant or not. For this the best evidence is of injured P. W. 1 Gurmel Singh himself who has clearly stated that accused appellant gave sword blow on his head which had caused two incised wounds. For this the best evidence is of injured P. W. 1 Gurmel Singh himself who has clearly stated that accused appellant gave sword blow on his head which had caused two incised wounds. P. W. 1 Gurmel Singh does not say anywhere that the accused appellant gave two sword blow. He simply states that the accused appellant gave only one blow. The statement of P. W. 1 Gurmel Singh is corroborated by the statement of P. W. 2 Sardul Singh who has been declared hostile to some extent as he has clearly admitted that he was told by P. W. 1 Gurmel Singh that the accused appellant gave him a sword blow. Therefore, if P. W. 2 has been declared hostile, it does not affect the case of the prosecution, but rather corroborates to the statement of P. W. 1 Gurmel Singh to the extent that accused appellant gave a sword blow to P. W. 1 Gurmel Singh. Similarly, P. W. 4 Ajmer Singh admits that P. W. 1 Gurmel Singh told him that a sword blow was given by the accused appellant and if P. W. 2 Sardul Singh, P. W. 3 Kor Singh and P. W. 4 Ajmer Singh have been declared hostile, it would not affect the case of the prosecution. Thus, the statement of P. W. 1 Gurmel Singh not only finds support from the above evidence, but medical evidence also corroborates to the statement of P. W. 1 Gurmel Singh. Hence, there is sufficient evidence in the present case to hold that sword blow was given by the accused appellant on the head of P. W. 1 Gurmal Singh which had caused two incised wounds and out of that one incised wound was grievous one. Thus the findings of learned Additional Sessions Judge that the injuries on the person of P. W. 1 Gurmel Singh were caused by accused appellant, are liable to be confirmed one. # ( 17 ) THE next question which arises for consideration is whether by causing these injuries offence under 37, I. P. C. is made out or not. ( 18 ) BEFORE convicting the accused appellant for offence under Section 307, I. P. C. the prosecution has to prove the following facts :i) that the death of a human being was attempted. ( 18 ) BEFORE convicting the accused appellant for offence under Section 307, I. P. C. the prosecution has to prove the following facts :i) that the death of a human being was attempted. ii) that such death was attempted to be caused by, or in consequence of, the act of the accused. iii) that such act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as (a) the accused knew to be likely to cause death; or (b) was sufficient in the ordinary course of nature to cause death; or that the accused attempted to cause such death by doing an act known to him to be so imminently dangerous that it must in all probability cause (a) death or (b) such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury. # ( 19 ) IN order that Section 307, I. P. C. should be attracted, it is necessary to establish that if the victim would have met his death, the offence would have been one under Section 302, I. P. C. # ( 20 ) THE burden is on the prosecution to prove both; namely; (i) the act (actus reus) and; (ii) the intention (mens rea ). # ( 21 ) TO charge a person under Section 307, I. P. C. it has to be shown as to what was the actual intention of the assailant and also as to what is the nature of injury, i. e. the extent of damage caused to body or any organ thereof. # ( 22 ) KEEPING in mind the above principle, the case of the prosecution has to be examined. # ( 23 ) AS stated above, P. W. 1 Gurmel Singh has stated that the accused appellant gave only one blow and he has not stated that the accused appellant gave two blows of sword. Looking to the fact that injury No. 2 is just near to injury No. 1 and looking to the length of sword, possibility that these two injuries might have been caused by one blow cannot be ruled out. Looking to the fact that injury No. 2 is just near to injury No. 1 and looking to the length of sword, possibility that these two injuries might have been caused by one blow cannot be ruled out. Simply because injuries were caused by sharp edged weapon and were on the head i. e. vital part of the body, the said fact by itself is not sufficient to show that the accused appellant had any intention to murder P. W. 1 Gurmel Singh. In the present case though injury No. 1 has been opined as grievous by P. W. 7 Dr. Rajkumar, but he has not mentioned in the injury report Ex. P/13 that these injuries were sufficient in the ordinary course of nature to cause death. In the Court statement P. W. 7 Dr. Rajkumar has only stated that there was possibility that these injuries might be sufficient in the ordinary course of nature to cause death. Not only this, the accused appellant had given only one blow and, therefore, from one blow, it cannot be inferred that he had any intention to murder P. W. 1 Gurmel Singh. Had the accused appellant would have any intention to murder P. W. 1 Gurmel Singh, he would have tried his best to make efforts to cause injuries to P. W. 1 Gurmel Singh by repeated attempts. Therefore, the above facts would not justify the conviction of the accused appellant for offence under Section 307, I. P. C. and would only justify conviction for offence under Section 326, I. P. C. # ( 24 ) THEREFORE, the findings of conviction for offence under Section 307, I. P. C. recorded by the learned Additional Sessions Judge cannot be sustained and findings of conviction for offence under Section 307, I. P. C. recorded by the learned Additional Sessions Judge are liable to be set aside and accused appellant is liable to be acquitted for offence under Section 307, I. P. C. and findings of conviction recorded by the learned Additional Sessions Judge No. 1, Hanumangarh for offence under 326, I. P. C. are liable to be confirmed one and judgment dated 6-11-87 passed by the learned Additional Sessions Judge is liable to be altered accordingly. ON THE POINT OF SENTENCE # ( 25 ) LOOKING to the fact that the accused appellant has remained in jail for the period from 26-1-85 to 11-3-85 and from 6-11-87 to 26-11-87 i. e. for near about 2 months and looking to the fact that in the present case the incident took place on 19-1-85 and now more than 16 years have elapsed and this period is enough to exhaust anybody mentally, physically and economically, but apart from this, it is to be kept in mind that P. W. 1 Gurmel Singh received one grievous injury by sharp edged weapon on very vital part, therefore, this period, which is just above 2 months would not be sufficient for sentence for offence under Section 326, I. P. C. Therefore, the prayer that he may be sentenced to the period already undergone by him is rejected. However, taking into consideration all above circumstances, if accused appellant is sentenced to the period of one year in place of 3 years for offence under Section 326, I. P. C. it would meet the ends of justice and the order of sentence for offence under Section 326, I. P. C. is liable to be altered accordingly. # ( 26 ) IN the result this appeal filed by the accused appellant Santokh Singh is partly allowed in the following manner : the conviction and sentence of accused appellant for the offence under Section 307, I. P. C. recorded by the learned Additional Sessions Judge No. 1, Hanumangarh vide his judgment and order dated 6-11-87 are set aside and the accused appellant is acquitted for offence under Section 307, I. P. C. But the conviction of the accused appellant for offence under Section 326, I. P. C. is maintained and the judgment of the learned Additional Sessions Judge No. 1 Hanumangarh dated 6-11-87 by which he convicted the accused appellant for offence under Section 326, I. P. C. is maintained. However for offence under Section 326, I. P. C. the accused appellant is sentenced to one years R. I. in place of 3 years R. I. The order of sentence dated 6-11-87 for offence under Section 326, I. P. C. passed by the learned Additional Sessions Judge No. 1, Hanumangarh stands modified accordingly. However for offence under Section 326, I. P. C. the accused appellant is sentenced to one years R. I. in place of 3 years R. I. The order of sentence dated 6-11-87 for offence under Section 326, I. P. C. passed by the learned Additional Sessions Judge No. 1, Hanumangarh stands modified accordingly. The order of fine dated 6-11-87 passed by the learned Additional Sessions Judge No. 1, Hanumangarh for offence under Section 326, I. P. C. is maintained. The judgment and order dated 6-11-87 passed by the learned Additional Sessions Judge No. 1 Hanumangarh stands modified accordingly. Since accused appellant is on bail, he shall surrender before the trial Court to serve out balance period of sentence. Order accordingly.