JUDGMENT Surinder Singh, J (Oral). The appellant was convicted by the learned Additional Sessions Judge, Fast Track Court, Kangra at Dharamshala in S.C. No. 17-K/VII/05/03/S.T. No. 52/2005, decided on 24.04.2006, under Section 307 of the Indian Penal Code for attempted murder on PW-11 Brij Mohan by stabbing on his back with a knife and sentenced to undergo imprisonment for a period of four years and to pay a fine of Rs.10,000/-, with the default clause. Hence, the present appeal by the convict. 2. Heard and gone through the record. 3. The prosecution story, in brief, can be stated thus. In the year 2002, PW-11 Brij Mohan was a student of 10+1 studying in Government Senior Secondary School, Nagrota Bagwan. It is alleged that on 8th February, 2002, there was some altercation between the accused and Sandeep, a friend of Brij Mohan. On 12.2.2002, at about 10.45 a.m., while going to school, he was accompanied by PW-7 Madan, PW-12 Chaman and one Surjit, his classmates. On that day, 10+1 students were throwing a party to 10+2 students. When he reached near school gate, the accused came from the opposite side and dealt a knife blow on his back. Brij Mohan sustained bleeding injury on his back. He fell unconscious. He was shifted by his friends to hospital, where he was attended upon by PW-10 Dr. Rajesh Guleri. The said doctor had informed the police telephonically about the medico-legal case. (ii) PW-13 SI/SHO Mohinder Singh visited hospital. He moved an application Ext. PW-10/A whether the injured was fit to make statement. The doctor certified that injured Brij Mohan was fit to make statement. As such, PW-13 SI/SHO Mohinder Singh recorded his statement Ext. PW-11/A under Section 154 of the Code of Criminal Procedure and sent a Rukka through HHC Jagdish Chand for registration of the case to Police Station, Kangra which culminated into FIR Ext. PW-2/A under Section 307 of the Indian Penal Code. (iii) Shirt Ext. P-1, under vest Ext. P-2 and jersey Ext. P-3 having the cut marks and blood stains were taken into possession vide memo Ext. PW-9/A in the presence of witnesses Chaman and Vikram. The accused produced knife Ext. P-4, which was taken into possession vide memo Ext. PW-9/B. Its sketch map Ext. PW-11/B was prepared. (iii) Shirt Ext. P-1, under vest Ext. P-2 and jersey Ext. P-3 having the cut marks and blood stains were taken into possession vide memo Ext. PW-9/A in the presence of witnesses Chaman and Vikram. The accused produced knife Ext. P-4, which was taken into possession vide memo Ext. PW-9/B. Its sketch map Ext. PW-11/B was prepared. It was sealed with seal impression ‘M’ by making a parcel and sent for forensic examination alongwith the clothes of the injured. (iv) On medical examination of the injured by PW-10 Dr. Rajesh Guleri, incised wound right side upper back over scapular region 7 cm in length, gaped about 1.5 cm deep to skin fascia was noticed. Muscular underlying bone was not visible. Margins were regular. The wound was freshly and actively bleeding. On auscultation by lateral vascular breath sound was present. The injured was advised X-ray and surgery opinion was sought for evaluation of nature of injury. As per the case summary prepared by the Surgeon, there was light haemo-pneumoehorax and the injury was described to be dangerous to life caused with a sharp edged weapon within six hours. Accordingly, MLC Ext. PW 10/B was issued. (v) On 15.2.2002, the injured was attended upon by PW-14 Dr. Sanjeev Kumar Sharma posted in Dr. RPGMC Hospital, Dharamshala. He was having a stab wound on the back side of the chest. The injured remained admitted in the hospital, where he was attended upon by Dr. Rohit Gupta, the Registrar, who had put in the chest tube, conducted medical examination and gave history of the injured. Then on 20.2.2002, the injured was discharged. The case history is Ext. PW-14/A. In the opinion of the doctor, the injury, so caused, was dangerous to life which could be caused with knife Ext. P-4. 4. After completing investigation, the challan was presented in the Court for trial of the accused under Section 307 of the Indian Penal Code. He was accordingly charge-sheeted for the aforesaid offence. He pleaded not guilty and claimed trial. 5. To prove its case, the prosecution examined its witnesses. The accused was also examined under Section 313 of the Code of Criminal Procedure. He was accordingly charge-sheeted for the aforesaid offence. He pleaded not guilty and claimed trial. 5. To prove its case, the prosecution examined its witnesses. The accused was also examined under Section 313 of the Code of Criminal Procedure. He denied the circumstances put to him and took up the stand that the injured, one Akash Saini and Sandip used to extort money as ‘Hafta-Basooli’ from him, though regarding it, he had made report to the police, but no action was taken against them. 6. The defence, so raised, did not find favour with the learned trial Court. While relying upon the statements of the prosecution witnesses and the medical evidence, the accused was convicted and sentenced, as aforesaid. 7. Shri Himmat Negi, learned Counsel for the appellant vehemently argued that if the statement of the injured is dispassionately dissected, it would give an impression that he was not able to identify the accused. He also referred to the statements of PW-7 Madan Lal and PW-8 Sandip Kumar who, according to him, did not support the prosecution case and were declared hostile, thus there was no cogent evidence for his conviction for attempt to murder. 8. On the contrary, Shri P.M. Negi, learned Deputy Advocate General supported the impugned judgment of conviction and sentence and further took me through the statements of the injured as well as the hostile witnesses coupled with the statement of PW-12 Chaman which, according to him, have linked the accused with the alleged attempt. 9. To appreciate the rival contentions of the parties, I have meticulously and cautiously examined the evidence on record. 10. PW-11 Brij Mohan, the injured categorically stated that he was going alongwith his friends Surjit, Chaman and Madan. The accused came from the opposite side and dealt a knife blow on his back. After sustaining bleeding injury, he fell unconscious on the spot. Thereafter, he was removed by his friends to the hospital. This fact stands fully corroborated by PW-12 Chaman in complete and unambiguous words. He also stated that the accused came from the opposite side and hit Brij Mohan from behind, on his back. Both these witnesses were subjected to lengthy cross-examination, but nothing material could be extracted there from. Thereafter, he was removed by his friends to the hospital. This fact stands fully corroborated by PW-12 Chaman in complete and unambiguous words. He also stated that the accused came from the opposite side and hit Brij Mohan from behind, on his back. Both these witnesses were subjected to lengthy cross-examination, but nothing material could be extracted there from. Not only this, when the statement of the injured was recorded by the police on the same day under Section 154 of the Code of Criminal Procedure, he also made the same statement holding him responsible for the injury caused to him. Further PW-7 Madan Lal, though declared hostile, stated categorically that PW-11 Brij Mohan was attacked with a knife which caused a bleeding injury, but did not name the accused, however, deposed that he had seen the accused fleeing away from the spot. In the cross-examination conducted by the Public Prosecutor, he stated that he was informed by Brij Mohan that he was stabbed with a knife by the accused. Similar is the statement of PW-8 Sandip Kumar. He stated that Brij Mohan had informed him that he was stabbed with a knife on his back by the accused and there were corresponding gaps on the shirt of Brij Mohan. 11. On the critical examination of the aforesaid evidence, it stands proved that it was accused and accused alone who had dealt a knife blow on the back of injured PW- 11 Birj Mohan with knife Ext. P-4 which was produced by him during investigation of this case, as stated above, and sent for forensic examination. As per report, Ext. P-A, it contained human blood. Further, Forensic Examination report Ext. P-B also reveals that cut marks found on the shirt, under vest and sweater, could be caused with the knife in question. Therefore, knife Ext. P-4 as well as the attack by the accused as deposed by the injured, stand fully connected with the injury caused to PW-11 Brij Mohan. 12. Now, the next question arises as to what offence he has committed in the above circumstances. 13. The details of the injury have been described by PW. 10 Dr. Rajesh Guleri, as stated above. Further, the injury, so caused, was explored and examined by Dr. Rohit Gupta who was not examined during the trial of the case. However, an attempt was made by examining PW-14 Dr. 13. The details of the injury have been described by PW. 10 Dr. Rajesh Guleri, as stated above. Further, the injury, so caused, was explored and examined by Dr. Rohit Gupta who was not examined during the trial of the case. However, an attempt was made by examining PW-14 Dr. Sanjeev Kumar Sharma to prove that the injury in question was dangerous to life. 14. Taylor in his book ‘Principles and Practice of Medical Jurisprudence’, 11th 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 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 damage to a vital organ; and secondly, on the chance of complications such as infection leading to septicaemi payaemia, tetanus or gas ganerene and of infection of particular parts or tissues pneumonia pleurisy, empyema, paricarditis, meningitis or peritonis; or more remotely to the effects of scaring, causing stricture (or the urethra, pesophagus, out, etc), paralysis, uninery infection, etc. “As a general principle, the Court is likely to consider as dangerous to life in a legal sense only those words in which the danger is imminent. The law appears to contemplate the more immediate rather than the more, remote possible danger……” (Emphasis supplied) 15. Modi in his book ‘Medial Jurisprudence and Toxicology, 13th Edition, at page 238, stated 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.” (Emphasis supplied) 16. The opinion of these celebrated authors clearly reveals that ‘danger to life’ from an injury should be imminent to constitute it as a dangerous one. But the injuries which prove fatal remotely by intercurrent diseases, such as tetanus, erysipelas, etc. should not be considered as dangerous.” (Emphasis supplied) 16. The opinion of these celebrated authors clearly reveals that ‘danger to life’ from an injury should be imminent to constitute it as a dangerous one. Such injuries are of serious nature like haemorrhage, shock or injuries implicating important structure or organs causing imminent danger. 17. 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 is alternative ingredient(s) of this offence. 18. Now, from the evidence discussed above as well as to be discussed hereinafter, 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. 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 Penal Code. 19. An offence under Section 307 of the Penal Code is a very serious offence and it requires the same very factors to be proved as are needed to prove an offence under Section 302 of the Penal Code except that in this case the act falls short of the death of the deceased which is necessary under Section 302 of the Penal Code. Sometimes, it becomes very difficult to differentiate between an offence under Section 307 of the Penal Code and others like under Sections 324, 325, 326 etc. In both the cases, injuries may be there. There may be existence or motive or intention or knowledge on the part of the wrong doer. Sometimes, it becomes very difficult to differentiate between an offence under Section 307 of the Penal Code and others like under Sections 324, 325, 326 etc. In both the cases, injuries may be there. There may be existence or motive or intention or knowledge on the part of the wrong doer. Care has, therefore, to be taken that, in such cases there may not be wrong application of the evidence looking to the serious consequences following from such an error; as the penalty prescribed under them very to a great extent. 20. Therefore, while scrutinizing the evidence, in the instant case, there is only a single injury with the knife in question on the back of PW-11 Brij Mohan, which too, in view of the above medical authorities, cannot be called on a vital part of the body. There is no evidence that the injury caused to Brij Mohan was ‘imminently dangerous to life’ due to the injury aforesaid. The injured remained hospitalized only for 8 days. The sort of treatment, which was given to him by Dr. Rohit Gupta, has not been substantiated. No cogent explanation has been offered as to why Dr. Rohit Gupta was not examined. The statements of PW10 Dr. Rajesh Guleri and PW-14 Dr. Sanjeev Kumar are only based upon the opinion of Dr. Rohit Gupta and only described these injuries ‘dangerous to life’. None of the vital parts of the body was affected by the assault bringing the case within the zone of those ailments described above entailing any imminent danger to the life of injured Brij Mohan. Therefore, in my opinion, the conviction of the accused should have been under Section 324 of the Indian Penal Code instead of Section 307 of the Indian Penal Code. Accordingly, the conviction of the accused is converted to Section 324 of the Indian Penal Code instead of Section 307 of the Indian Penal Code. 21. Adverting to the sentence part of this case, the learned Counsel for the appellant vehemently argued that at the relevant time, the accused was also a student aged about 20 years. He does not have any criminal history to his credit. Keeping in view the character, antecedents etc. and also the fact that he remained in jail w.e.f. 12.2.2002 to 7.5.2002, he deserves to be released on probation. 22. He does not have any criminal history to his credit. Keeping in view the character, antecedents etc. and also the fact that he remained in jail w.e.f. 12.2.2002 to 7.5.2002, he deserves to be released on probation. 22. Shri P.M. Negi, learned Deputy Advocate General submits that keeping in view the way and manner of attack, no leniency in the sentence is called for and the accused deserves to be sentenced in accordance with law. 23. Keeping in view the above arguments, before passing sentence, it shall be imperative on this Court to call for report of the Probation Officer. 24. Let the report of the Probation Officer concerned be sent for and list the matter on 28.2.2013. The accused shall also be present on that day.