JUDGMENT (1) The appellant has assailed the judgment of conviction under Section 307 of the Indian Penal Code, passed in Sessions trial No. l-S/7 of 1997 decided on 5-7-2001 by the learned Additional Sessions Judge, whereby he was sentenced to undergo Rigorous Imprisonment for a period of three years and to pay a fine of Rs. 5,000/ -. (2) The appellant was put on trial, on the allegations that PW4 Manohar Lal and PW3 shiv Karan Singh, both police constables of kangra District, were deputed on VVIP duty at Shimla, on account SAARC Samelan. in the month of May 1995. Both were staying in Sanatan Dharam Sabha-Sarai at Sanjauli (Shimla). On 3-5-1995, both these constables after taking their dinner in the hotel located in the local market, were on their way back to the place of their stay. At about 11. 15 p. m., they noticed the appellant, picking up a quarrel with a woman on the road. PW4 Manohar Lal asked him as to why he was quarrelling with the said woman, but in turn, he gave 2/3 fist blows on the face, with the result, he fell down on the road and sustained the bleeding injuries on his face and head. Thereafter police arrived at the spot from the nearby police post and removed him to IGMC Shimla in a vehicle in an unconscious condition. His condition was opined to be serious by PW 1 Dr. Arvind sood, thus, he was referred to PGI, chandigarh. A report in the daily diary Ex. PW6/b was lodged on 3-5-1995, on the basis of which FIR Ex. PW7/a was recorded by PW7 S. I. Dev Kumar. The Doctor issued mlc Ex. PW 1/a. The injured was found having consumed liquor. During the investigation of this case, medical examination papers of PGI Chandigarh were taken by the police and presented to PW1 Dr. Arvind sood, on the basis of which he opined that injury received by the injured was dangerous to life. The appellant was arrested. After recording the statements of the witnesses and on completion of the challan, it was presented in the Court for the trial of the appellant. The appellant was charge-sheeted for the offences aforesaid. He pleaded not guilty and claimed trial. (3) To prove its case, the prosecution examined its witnesses and the respondent was also examined under Section 313 Cr. After recording the statements of the witnesses and on completion of the challan, it was presented in the Court for the trial of the appellant. The appellant was charge-sheeted for the offences aforesaid. He pleaded not guilty and claimed trial. (3) To prove its case, the prosecution examined its witnesses and the respondent was also examined under Section 313 Cr. P. C. The appellant denied the circumstances which were found attendant upon him. According to him, it was a false case. He did not commit any offence nor he knew the injured personally. He did not cause any injury to him. Since he was running a furniture shop at Sanjauli Chowk and the local police had been usually harassing him on one or the other reason, that was the reason for foisting a false case upon him. However, in defence he did not lead any evidence. (4) Shri Vinay Thakur, learned counsel for the appellant has vehemently argued that the conviction of the appellant on the sole testimony of the interested witness cannot be relied upon and further ventilated that the injured was under the influence of liquor, hence the possibility of his sustaining the injuries by a fall cannot be ruled out. Therefore, if the evidence of the prosecution is carefully gone through, no case against the appellant is made out worth conviction under Section 307 I. P. C. but alternatively argued that if this Court holds him guilty for lighter offence, it is a fit case for giving him the benefit of probation in the facts of the case. Contra, Shri Vikas Rathore, learned deputy Advocate General has supported the impugned judgment of conviction and sentence and urged that there is no discrepancy in the impugned judgment, therefore, no interference is called for. (5) In the instant case, PW4 Manohar Lal injured, his companion PW3 Shiv Karan singh and PW1 Dr. Arvind Sood are the material witnesses to decide the fate of the appellant in this appeal. (6) PW1 Dr. Arvind Sood has specifically denied in his cross-examination that the injuries to PW4 Manohar Lal could be caused due to fall because of the consumption of alcohol as the injuries were opposite to each other. Arvind Sood are the material witnesses to decide the fate of the appellant in this appeal. (6) PW1 Dr. Arvind Sood has specifically denied in his cross-examination that the injuries to PW4 Manohar Lal could be caused due to fall because of the consumption of alcohol as the injuries were opposite to each other. The injured constable Manohar Lal has categorically stated that on 3-5-1995, he was with his companion PW 3 Shiv Karan singh and after taking meals in the local hotel, both of them were returning to Sabha-'sarai. They saw the appellant quarrelling with some lady about 11. 15 p. m. and they intervened. They asked about the cause of the quarrel, but on this the appellant inflicted 2/3 fist blows on his face and he was thrown on the ground. Thereafter he assaulted him with fist and kick blows and he fell unconscious. He received injuries on his head and face and remained hospitalized in the I. G. M. C. Shimla and was also referred to PGI, Chandigarh where he regained his consciousness. He stated in his cross examination that his duty was over at 8 p. m. Only he along with his friend PW3 Shiv karan Singh had gone to hotel/dhaba to take dinner and the remaining Force was in the dharamshala Sabha Sarai. He denied that he had sustained the injuries on account of fall and the appellant was falsely implicated in the case. He did not know as to why the appellant and lady were quarrelling nor he could make out the cause for said quarrel. (7) PW3 Shiv Karan Singh has afforded the corroboration to the above statement. He was meticulously cross-examined on behalf of the appellant, but nothing material could be extracted. He has stated that pw 4 Manohar Lal might have consumed the liquor, be he denied that he was not in a position to walk under the influence of liquor. He categorically stated that he himself did not take the liquor. The incident is alleged to have taken place in front of the police post, Sanjauli when many passersby were crossing the said place, however, none of them were associated in the investigation. (8) It is significant to note that the defence raised by the appellant was not put to the witnesses aforesaid and also to the Investigating Officer PW 9 SI Bhim Singh. (8) It is significant to note that the defence raised by the appellant was not put to the witnesses aforesaid and also to the Investigating Officer PW 9 SI Bhim Singh. Pw8 HC Gangbir Singh was present in the police post when the alleged occurrence had taken place. He was attracted by the noise outside the police post and went to the spot. He saw constable Manohar Lal lying unconscious. He arranged for the private vehicle and shifted him to IGMC Shimla. Next day, he accompanied him to PGI, chandigarh where he was admitted on 4-5-1995 but he regained his consciousness on 6-5-1995. Thereafter he had recorded the statement of Pw4 Shri Manohar Lal at his native place Jawalamukhi and further investigation was carried out by the then ASI bhim Singh aforesaid. (9) On the critical examination of the above statements, it is absolutely clear that it was the appellant and appellant alone who had caused the injuries to PW 4 Manohar lal, which according to the doctor could not have been caused due to the fall. The appellant was the stranger to the injured and his companion. There was no motive to falsely implicate him with the alleged offence. The testimonies of PWs 3 and 4 cannot be discarded on the ground that both are interested witnesses. In fact, the injured is a competent and material witness. The presence of the appellant at the place of occurrence stands proved and PWs has categorically stated that it was the appellant, who assaulted PW4 and corroborates his version, therefore, the statements of the aforesaid witnesses cannot be faulted in absence of any motive to falsely implicate the appellant. (10) The next question which arises for determination in the circumstances is that as to what offence was committed by the appellant. PW1 Dr. Arvind Sood had noticed injury on the skull which was in the nature of cut 1 inch x 3 mm on the right side of the occipital region, which was bleeding profusely, but on X-ray it did not reveal any fracture. After perusing the medico legal summary of the PGI, the doctor opined that the said injury upon the appellant was grievous in nature and dangerous to life. After perusing the medico legal summary of the PGI, the doctor opined that the said injury upon the appellant was grievous in nature and dangerous to life. Under Section 307 of the Indian Penal Code what the Court has to see, is whether the act irrespective of its result, was done with the intention or knowledge, under circumstances mentioned in that section. The intention or knowledge of the accused must be such as is necessary to constitute murder. Without this ingredient being established, there can be no offence of attempt to murder. Under Section 307, the intention precedes the act attributed to accused. Therefore, the intention is to be gathered from all circumstances, and not merely from the consequences that ensue. The nature of the weapon used, manner in which it is used, motive for the crime severity of the blow, the part of the body where the injury is inflicted are some of the factors that may be taken into consideration to determine the intention. Please see All India criminal Law Reporter 1989 (1) SC 66 : (1989 Cri LJ 116). (11) In the instant case, there was no previous enmity nor there was intention preceding the assault attributed to the appellant. He is alleged to have caused injury by the fist blows on the face of PW 4 Manohar lal. The intention to kill PW4 Manohar Lal is missing. It was a sudden fight and further the injury in question was not imminently danger to life. The offence under Section 307 I. P. C. fall short of murder. The ingredients of the offence are not fully satisfied. (12) Taylor in his book Principles and practice of Medical Jurisprudence', llth edition, at page 230, stated as follows : - "the meaning of the words 'dangerous to life' is left entirely to the professional knowledge of a witness. It is not sufficient that he should make a simple assertion in that the wound was dangerous to life; he must be prepared to state to the Court satisfactory reasons for this opinion; and these reasons may be rigorously inquired into by counsel for the defence. It is not sufficient that he should make a simple assertion in that the wound was dangerous to life; he must be prepared to state to the Court satisfactory reasons for this opinion; and these reasons may be rigorously inquired into by counsel for the defence. Danger to life primarily depends upon haemorrhage, shock or dam-age to a vital organ; and secondly, on the change of complications such as infection leading to septicaemia, payaemia, tetanus or gas gangrene and of infection of particular parts or tissues pneumonia, pleurisy, empyema, pericarditis, meningitis, or peritonis; or more remotely to the effects of scaring, causing stricuture (of the urethra, oesophagus, out (sic) etc.), Paralysis, urinary infection, etc. " As a general principle, the Court is likely to consider as dangerous to life in a legal sense only those wounds in which the danger is imminent. The law appears to contemplate the more immediate rather than the more remote possible dangers. Modi in his book 'medical Jurisprudence and Toxicology', 13th Edition at page 238, states as follows : "danger to life should be imminent before the injuries are designated 'dangerous to life' such injuries are extensive, and implicate important structures to organs, so that they may prove fatal in the absence of surgical aid. For instance, a compound fracture of the skull, a wound of a large artery, or rupture of some internal organ, such as the spleen, should be considered dangerous to life. But the injuries which prove fatal remotely by intercurrent diseases, such as tetanus, erysipelas, etc. should not be considered as dangerous. " Therefore, it can be said that the injuries caused to the complainant were not imminently dangerous nor caused on the vital part of the body. At best, it can be said that there could be some remote chance of their becoming dangerous to life or becoming sufficient, in ordinary course of nature, to cause the death of the complainant, in case medical aid was not rendered. Intention or knowledge are alternative ingredients of this offence. At best, it can be said that there could be some remote chance of their becoming dangerous to life or becoming sufficient, in ordinary course of nature, to cause the death of the complainant, in case medical aid was not rendered. Intention or knowledge are alternative ingredients of this offence. Now, from the evidence discussed above, it is not possible to conclude that the appellant intended to cause the death or intended to inflict injury which was sufficient in the ordinary course of nature to cause death or that he knew that his act was so imminently dangerous that it must in all this probability cause the death or cause an injury as is likely to cause death. (13) The burden to prove all this is upon the prosecution and, in my opinion, it has failed to discharge the same to the extent to record a finding of commission of an offence under Section 307 of the Indian Penal Code. (14) The injury in question which is proved to be caused by the appellant was grievous in nature and fall under Section 320 eighthly, of the Indian Penal Code. therefore, in the circumstances aforesaid, the appellant is proved to have voluntarily caused grievous injury to PVV4 Manohar Lal, as such, his conviction under Section 307 of the Indian Penal Code is set aside and the appellant is held guilty under section 325 of the Indian Penal Code, accordingly. he stands convicted for the said offence. The next question which requires to be considered is whether the appellant is entitled for the benefit of probation of good conduct. Before considering this question, let the report of the probation officer concerned be called for. Therefore, list the case on 24-12-2008 for the report of Probation officer and the appellant be produced. Order accordingly.