JUDGMENT : Surinder Singh, J. (Oral) Appellant, hereinafter to be referred as the accused, has challenged the judgment of conviction and sentence passed by the learned trial Court, in Sessions Trial No. 88/05/04, decided on 12.7.2005/ 14.7.2005, for the offences punishable under Sections 307 and 201 of the Indian Penal Code, whereby he was sentenced to undergo imprisonment for a period of three years and to pay a fine of Rs. 2,000/- for the offence under Section 307 of the Indian Penal Code and under Section 201 of the Indian penal Code six months and to pay a fine of Rs. 1,000/-, with the default clauses. Both the sentences were ordered to run concurrently. 2. Precisely, the case of the prosecution, as born out from the evidence on record, can be stated thus. On 7.1.2004, PW1 Bhagat Ram, injured, was in his village Gumbu. He was in the company of PW6 Hukam Singh and PW7 Janak Raj. All of them went to the house of the accused in village Sihand to purchase timber. They contacted the accused and PW7 Janak Raj settled the price of the timber. All of them consumed liquor for about two hours. Bhagat Ram asked the accused as to why on the previous day he picked-up the altercation with his brother Khilo Ram. On this, the accused felt angry and lost his temper, took up a Pachar (char-wood) and dealt 3/4 blows on his head causing blood injuries. Injured Bhagat Ram was removed to the hospital, Chowari in District Chamba. Police was informed. 3. PW12 ASI Amin Chand recorded the statement of injured Ext. PW1/A after getting the fitness certificate from the doctor and sent a Ruka for the registration of the case on the basis of which FIR Ext. PW12/A was registered under Section 307 of the Indian penal Code. 4. Police visited the spot and prepared the site plan Ext. PW12/A of the alleged place of incident and noticed that the place where the incident had taken place was cleaned and blood stained earth and envelops were thrown near a mango tree at some distance. The accused was arrested. He was interrogated about the weapon of offence, but according to him that Pachar was burnt, as such, offence under Section 201 of the Indian Penal Code for destroying the evidence was also added. 5. The accused was arrested. He was interrogated about the weapon of offence, but according to him that Pachar was burnt, as such, offence under Section 201 of the Indian Penal Code for destroying the evidence was also added. 5. During investigation of this case, police took into possession the blood stained shirt and trousers of the injured vide memo Ext. PW4/A. The sweater and the Towel were also taken into possession on 9.1.2004 vide memo Ext. PW4/B. Police recorded the statements of PW6 Hukam Singh and PW7 Janak Raj, the alleged eye witnesses under Section 161 of the Code of Criminal Procedure. 6. Injured was got medically examined from PW2 Dr. J.S. Pathania on the same day, i.e., 7.1.2004 at 7.30 p.m. On the clinical examination of the injured, the doctor noted the following injuries on his person: i) Incised would 11 cms. long, frontal area, sharp edge, fresh bleeding found present. On cleaning the wound, area of skull as seen with naked eyes, outer table of skull had shown linear fracture of ouster table of skull on the right side. ii) Lacerated wound on parietal area of skull, length 12 cms. In long, bone deep, skull was visible underneath wound with fresh bleeding; surrounding area was abrased. iii) 4 cms. long wound incised in nature on parieto-temporal area of the face, fresh bleeding was found present. No evidence of underlying fracture. iv) 4 cms. long incised wound, edges were clean approximately 6 cms. above to right ear. Fresh bleeding was present. v) Lacerated wound approximately 5 cms. long below right eye, fresh bleeding was present and multiple abrasion on right side of face were found present. 7. Thirty five stitches in total were applied on all the injuries by the doctor and life-savings drugs were allegedly given. Duration of these injuries was within 12 hours. The injured was kept under observation for 24 hours. Thereafter he was referred to Zonal Hospital, Dharamshala for C.T. scan. On the basis of C.T. scan report Ext. PW2/C and X-ray film Ext. PW2/D injury No. 1 was opined to be grievous in nature and dangerous to life and other injuries simple in nature. The Medico Legal Certificate of the injured is Ext. PW2/B. The blood stained clothes were also sent for forensic examination. The report is Ext. PW14/A. 8. On the basis of C.T. scan report Ext. PW2/C and X-ray film Ext. PW2/D injury No. 1 was opined to be grievous in nature and dangerous to life and other injuries simple in nature. The Medico Legal Certificate of the injured is Ext. PW2/B. The blood stained clothes were also sent for forensic examination. The report is Ext. PW14/A. 8. After completing investigation, Challan was presented in the Court for the trial of the accused. He was accordingly charge-sheeted to which he pleaded not guilty and claimed trial. 9. To prove its case the prosecution examined its witnesses and the statement of the accused was also recorded under Section 313 of the Code of Criminal Procedure. The stand taken by the accused was that all the persons including him took liquor for about two hours and the complainant (PW1) sustained injuries due to fall as the rafter of the house fell upon him and PW1 sustained the injuries. In the opinion of the learned trial Court, the defence raised could not be probablised, as such it was rejected. However, the learned trial Court relied upon the evidence of the prosecution, convicted and sentenced the accused for the aforesaid offences, hence the present appeal. 10. Shri Anand Sharma, learned Counsel for the accused vehemently argued that the doctor did not notice that the complainant was drunk at the relevant time, whereas the complainant (PW1) in his cross examination admitted that he along with other persons named above had taken the liquor for about two hours. Thus not mentioning this fact by the doctor in the Medico Legal Certificate, more specifically when he was examined on the same day within three hours makes the medical evidence a suspect because of material contradictions and cited the Division Bench judgment of this Court rendered in Amin Chand and others v. State of Himachal Pradesh [1985 Sim.L.C. 298]. He further ventilated that the so called eye witnesses have not supported the case of the prosecution, which is an additional factor which probablise the defence version and dislodge the prosecution story. It is also pointed that there were 2-3 houses in the vicinity of the accused where the alleged incident is stated to have taken place, but no independent witness was associated to lend strength to the prosecution case. 11. It is also pointed that there were 2-3 houses in the vicinity of the accused where the alleged incident is stated to have taken place, but no independent witness was associated to lend strength to the prosecution case. 11. Shri R.P. Singh, learned Assistant Advocate General, supported the impugned judgment of conviction and sentence and pointed out that the statement of the injured is duly corroborated in material particulars by the so called eye witnesses coupled with the statement of the doctor, therefore, no interference is required by this Court. 12. I have given my thoughtful consideration to the rival contentions of the parties and have carefully examined the evidence on record. 13. Admittedly, the doctor in his cross-examination stated that the complainant was not under the influence of liquor, but he also did not say nor asked that he had taken the liquor. There is no reference in the Medico Legal Certificate with respect to consumption of liquor by the injured, whereas in the cross-examination the complainant stated that on the day of alleged occurrence he along with Janak Raj and Hukam Singh had taken liquor in the house of the accused to which the accused himself had provided. Though, he admitted that this fact was also stated to the police, whereas PW12 ASI Amin Chand denied that the complainant was smelling alcohol. PW6 Hukam Singh and PW7 Janak Raj both are hostile witnesses, but have admitted the fact of taking liquor in the house of the accused along with the complainant for about two hours. In my opinion, the fact of non-mentioning of the consumption of liquor by the victim, by the doctor in the M.L.C. does not make the statement of injured doubtful as he conceded to have consumed liquor and there is no conflict with respect to the injuries caused to the complainant as deposed by him. In Amin Chands case (supra) cited by the learned Counsel for the accused the facts were different. The witnesses had stated having caused injuries to the victim in a particular manner to which the medical evidence totally overruled the possibility of causing a dent in the prosecution case, which made the prosecution case doubtful but in the instant case there is no contradiction with respect to the injuries sustained by the victim as alleged. Therefore, the ratio of Amin Chands case is not applicable in the present case. 14. Therefore, the ratio of Amin Chands case is not applicable in the present case. 14. In his statement PW1 Bhagat Ram categorically deposed that on the day of alleged incident all of them were taking liquor in the house of the accused, but when he asked about the reason picking-up a quarrel by the accused on the previous day with his brother, the accused felt annoyed, lost temper and picked-up a Pachar (wooden danda) and dealt 3/4 blows on his head and near the eye which caused bleeding injuries. Thereafter he was removed to the hospital where he was attended upon by doctor PW2 J.S. Pathania. The injuries on the person of the injured were duly reflected in the M.L.C. issued by him under his signatures and as already stated above except injury No. 1 all other injuries were simple in nature whereas injury No. 1 was opined to be grievous and dangerous to life. The complainant was subjected to lengthy cross-examination. He denied the defence put by the accused with respect to collapsing of the rafter of the roof which fell on him and also sustaining the injuries and the accused did not probablise his defence in any manner. 15. Though, PW7 Hukam Singh and PW7 Janak Raj as allegedly stated above both turned hostile to the prosecution, but according to PW6 Hukam Singh he was paralytic and after consuming liquor he felt sleepy. In cross-examination conducted by the learned Public Prosecutor he admitted that the fuel wood was lying nearby and later in the hospital he had noticed the injuries on the head, forehead and near the right eye of the injured. He also stated that the doctor had applied total 35 stitching on the various injuries. PW7 Janak Raj also admitted having taken liquor in the company of PW1 Bhagat Ram and accused for about two hours and during that time they had conversation with respect to purchase of timber, but when they were about to move through the Verandah a rafter of the roof slipped on the head of Bhagat Ram causing injuries to him. In other words, he admitted about the injuries on the person of complainant but for the manner in which he got injuries is different. Importantly the collapsing of the rafter is neither put to the Investigating Officer nor there is such a reference in the spot map Ext. In other words, he admitted about the injuries on the person of complainant but for the manner in which he got injuries is different. Importantly the collapsing of the rafter is neither put to the Investigating Officer nor there is such a reference in the spot map Ext. PW13/A. Therefore, this defence raised is after thought and not probablised. 16. In the totality of the aforesaid circumstances, in my opinion, the statement of the injured (PW1) is worth inspiring confidence, which is duly supported by the statement of PW2 Dr. J.S. Pathania and leaves no room for entertaining any doubt that it was the accused and the accused alone who has caused the aforesaid injuries on the person of the injured, as stated by him. 17. Now the next question arises whether the offence in question is a case of attempted murder? The doctor (PW2) has stated that injury No. 1 was dangerous to life had the medical treatment not been given to the injured, but he did not spell out what treatment was provided except a reference in the MLC of the injured that he was given life saving drugs. The treatment summary has not been placed and proved on record. The injured was left under observation for 24 hours and then referred to the Zonal hospital Dharamshala for CT scan, which noticed fracture. 18. Although Section 307 of the Penal Code is suddenly attracted irrespective of its result, if 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 the 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 maybe taken into consideration to determine the intention. 19. In the instant case, there has been no previous enmity or intention preceding the assault attributed to the accused. Had it been so, all of them would not have shared drinks together. 19. In the instant case, there has been no previous enmity or intention preceding the assault attributed to the accused. Had it been so, all of them would not have shared drinks together. Thus the intention to kill PW1 Bhagat Ram by the accused is missing. It appears to be a case of sudden fight or a drunken brawl. The injury in question was not proved to be imminently dangerous to life, of course, is grievous in nature. Thus, the offence under Section 307 of the Indian Penal Code against the aforesaid background stands not proved for want of requisite intention despite the fact that the doctor opined the injury in question as dangerous to life without giving adequate reasons and also in absence of the treatment to save the life of the injured. 20. Taylor in his book Principles and Practise 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 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 hemorrhage, shock or damage to a vital organ; and secondly, on the chance of complications such as infection leading to septicaemia, payaemia, tetanus or gas gangrene and of infection of particular parts or tissuespneumonia, pleurisy, empyema, pericarditis, meningitis, or peritonis; or more remotely to the effects of scaring, causing stricture (of the urethra, pesophagus, out 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." 21. 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. 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." 22. Against the aforesaid background, it cannot be said that the injuries caused to the complainant were not imminently dangerous. From the statement of the doctor it can at best be said that there was some remote chances of its 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. But against the above factual background it is not possible to conclude that the accused intends to cause death or intention 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 probability cause death or cause an injury as is likely to cause death. Burden to prove the ingredients of the offence charged is on the prosecution to which the prosecution failed to discharge to record the conviction of the accused for the offence punishable under Section 307 of the Penal Code, but the injury in question is certainly grievous in nature caused on the head within the meaning of Section 320 of the Indian Penal Code. In the above proved circumstances aforesaid, had the injured died it would not have been an offence under Section 302 of the Indian Penal Code but falling under Section 304 of the Indian Penal Code if the accused is proved to have voluntarily caused grievous injuries with the intention or knowledge to cause death. 23. Therefore, on the above interpretation, my conclusion is that it is proved to be a case of attempt to commit culpable homicide not amounting to murder against the accused under Section 308 of the Indian Penal Code. 23. Therefore, on the above interpretation, my conclusion is that it is proved to be a case of attempt to commit culpable homicide not amounting to murder against the accused under Section 308 of the Indian Penal Code. Accordingly, he is held guilty for the said offence therefore, the conviction of the accused under Section 307 of the Indian Penal Code is converted to Section 308 of the Indian Penal Code while the findings of the learned trial Court qua his guilty under Section 201 Penal Code are upheld as the accused is proved to have destroyed the evidence, by applying the mud and removing the blood stains from the spot and destroyed the weapon of offence by fire. 24. Confronted with the above position, the learned Counsel for the accused/convict prays for the leniency on the grounds that on the day of alleged incident the accused was of 64 years and by now he is about 72 years suffering from old age diseases. There was no previous enmity. It was a drunken brawl. He does not have any criminal history to his credit. 25. I have considered the above arguments and also the fact that during the investigation of this case the accused remained in custody for about 20 days and he has also deposited the fine amount. Thus taking a lenient view considering his age and antecedents, the accused is sentenced to the imprisonment already undergone under both the Sections, i.e., under Section 308 and 201 of the Indian Penal Code, without disturbing the fine. Further, the accused shall also pay a compensation of Rs. 10,000/- to PW1 Bhagat Ram which shall be deposited by the accused within two months from today, failing which the same shall be realised as a fine under the Code of Criminal Procedure. 26. With the above modification in findings of guilt and sentence, the appeal stands disposed of.