Judgment : 1. This appeal is directed against impugned judgment of conviction and order of sentence dated 13-01-1998 passed by the Additional Sessions Judge, Jashpur Nagar, District Raigarh, in Sessions Trial No. 126/1997, by which, the appellant No.1-Kamta Prasad has been held guilty of commission of offence under Section 307 of IPC and ordered to undergo sentence as described below:- Under Section 307 of IPC R.I. for 5 years and fine of Rs.500/-, in default of payment of fine, additional simple imprisonment for 1 month 2. It is said that on the date of incident, during screening of a video film in the village, quarrel took place between Anil, DW-1, brother of the appellant-Kamta and Looten and Booten, brothers of Ram Sai, PW-1. It is said that Looten and Booten assaulted Anil with the help of torch, in which, Anil sustained some injury on his head. 3. The prosecution story is that the appellants thereafter, came across Ram Sai, PW-1 and other witnesses nearby the place of earlier incident and then the appellants assaulted Ram Sai leading to injury on his head and the injured persons were medically examined. There was a linear fracture found on the head of Ram Sai, PW-1 and another simple head injury. After usual investigation, charge sheet was filed against the appellant and two other co-accused. During trial, while the appellant was held guilty of commission of offence under Section 307 of IPC for causing head injury to Ram Sai, PW1, other accused were acquitted by giving them benefit of doubt. This appeal arises out of the aforesaid judgment of conviction and order of sentence. 4. Learned counsel for the appellant submitted that the evidence which has been led by the prosecution as well as defence witnesses proves that there was a prior incident, in which, the brother of the appellant was assaulted and he sustained head injury. The allegation that the appellant had intention to cause death of Ram Sai is not made out, because even according to the evidence of the prosecution witnesses, the appellant suddenly happened to meet the victim Ram Sai on road and there dispute arose due to prior incident of appellant's brother having been assaulted by brothers of Ram Sai, PW-1. The allegation that the appellant had intention to cause death of Ram Sai is not made out, because even according to the evidence of the prosecution witnesses, the appellant suddenly happened to meet the victim Ram Sai on road and there dispute arose due to prior incident of appellant's brother having been assaulted by brothers of Ram Sai, PW-1. Thus, the incident happened all of a sudden, without any premeditation or preparation, therefore, the circumstances of the case do not support the prosecution story that the appellant had any intention to cause death. He submits that there is only one fracture injury on the head and the opinion given by the doctor coupled with the nature of injury does not prove that the injury, in ordinary course of nature, was sufficient to cause death. The next submission of learned counsel for the appellant is that even if it is held that the appellant assaulted Ram Sai resulting in head injury, taking into consideration the totality of the circumstances, it being an old incident of the year 1996, the parties having entered into amicable settlement and compromised all their disputes and the appellant being aged 53 years, his conviction may be altered to Section 326 of IPC and sentence for the period already undergone by him. It is submitted that the appellant has already undergone 84 days of imprisonment. 5. On the other hand, learned State counsel submits that the ocular testimony of the injured witness, Ram Sai, PW-1 is not only corroborated by medical evidence but also from the evidence of other eye-witnesses of the incident, who have clearly stated that the appellant assaulted Ram Sai with the help of rod on his head resulting in two injuries, one of them being fracture injury. The force, with which the assault was made, by itself proves the intention of causing death. 6. The FIR, Ex.P-1, was lodged by Rajendra, PW-2, in which, he stated that he had reported the incident to the police. This witness has proved his signature. Investigating Officer, D.P. Thakur, PW-14 has stated that on the report of Rajendra, PW-2, FIR under Crime No.81/1996 was registered by him and he has proved his signature. 6. The FIR, Ex.P-1, was lodged by Rajendra, PW-2, in which, he stated that he had reported the incident to the police. This witness has proved his signature. Investigating Officer, D.P. Thakur, PW-14 has stated that on the report of Rajendra, PW-2, FIR under Crime No.81/1996 was registered by him and he has proved his signature. In the FIR, it has been stated that on 23-09-1996 at about 11 PM in the night, when he along with his brother Ram Sai, Nilamber and Sukhni Bai were returning home, they saw the appellant-Kamta Prasad along with his brother-Anil standing near Bal Ashram. They stated that their brother Looten abused and when Ram Sai claimed ignorance, the appellant assaulted Ram Sai with the help of rod on his head. Ram Sai fainted and became unconscious. In the FIR, it has also been stated that the incident was seen by Nilambar, Sukhni Bai, Madhe and Ujjawal and when Rajendra, PW-2 attempted to intervene, he was also threatened, thereafter report has been lodged. 7. Ram Sai, PW-1 is a victim and he states that when he was returning home in the night, the appellant caught hold by his hands and then assaulted by a rod and thereafter, he fainted and admitted in the hospital. This witness has stated that he was not interrogated by the police and the incident is being stated before the Court for the first time. He admits that Looten and Booten are his brothers. 8. Other witness, Rajendra, PW-2, brother of Ram Sai, Nilamber, PW3, Sukhni Bai, PW-4 have supported the evidence of Ram Sai, PW-1 that when they were returning home in the night, the appellant happened to come in front of them and then assaulted Ram Sai. 9. The injuries of Ram Sai have been proved by Dr. R.N. Dubey, PW-10, who had examined the injuries. Dr. M.K. Jain, PW-13 has proved the X-Ray report, EX.P-14 prepared by him. The medical evidence led by the prosecution and the evidence of Dr. R.N. Dubey, PW-10 and Dr. M.K. Jain, PW-13 as also the X-Ray report, EX.P-14 proves that Ram Sai sustained a linear fracture on his head. The other injury was, however, found to be lacerated wound. Dr. R.N. Dubey, PW-10 has stated that the patient was in semi-consciousness condition and the injuries were dangerous to his life. He has proved his report, Ex.P-9. M.K. Jain, PW-13 as also the X-Ray report, EX.P-14 proves that Ram Sai sustained a linear fracture on his head. The other injury was, however, found to be lacerated wound. Dr. R.N. Dubey, PW-10 has stated that the patient was in semi-consciousness condition and the injuries were dangerous to his life. He has proved his report, Ex.P-9. In his cross-examination, he has denied that after submission of report, Ex.P-9, he added last two lines, later on, by writing "injury caused by hard and blunt object and threatening to the life of the patient". The X-Ray report, EX.P-14 also proves a linear fracture. 10. In order to prove commission of offence under Section 307 of IPC, the prosecution is required to prove that the accused had intention to cause death. While nature and extent of injuries caused to the victim are relevant and it would be fallacious in law to hold that intention to cause death has to be gathered only from injury, divorced from attending facts and circumstances of the case, in which, the injury was caused to the victim. In other words, nature and extent of injury is not the sole criteria to decide whether the accused had an intention to cause death and with that intention, he assaulted. 11. In the case of Hari Singh Vs. Sukhbir Singh and Others, (1988)4 SCC 551 the Supreme Court held that while examining whether a case of commission of offence under Section 307 IPC is made out, the Court is required to see, whether the act, irrespective of its result, was done with the intention or knowledge and 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. The state of mind of the accused has to be established from surrounding circumstances and the motive would be relevant circumstance. The state of mind of the accused has to be established from surrounding circumstances and the motive would be relevant circumstance. Where the evidence is not sufficient to establish with certainty, existence of all requisite intention or knowledge of the accused, there can be no conviction under Section 307 IPC. 12. In the present case, what has come on record is that the appellant's brother-Anil was assaulted by Looten and Booten, who happened to be brothers of Ram Sai, PW-1. While Ram Sai, PW-1 does not state about the genesis of dispute which led the appellant to assault him, his brother Rajendra, PW2 states that the appellant assaulted Ram Sai by saying that Ram Sai's brother assaulted his brother. 13. Ujjawal, PW-5 has stated that on the date of the incident in the evening, while video film was being screened in the school premises, a dispute arose between appellant's brother and Booten. Madhe Ram, PW-6 has also stated that when the appellant met with Ram Sai near school, then stated that he is the brother of Lootan and then assaulted Ram Sai. He has admitted that on the date of incident, in the evening, a video film was being displayed in the school premises. This fact has been admitted by other prosecution witnesses. 14. The brother of the appellant namely Anil, DW-1 has been examined in defence, who has stated that he was assaulted by Looten and Booten. He also sustained head injury on his head and his injury report, EX.D-6 has been proved by Dr. C.D. Bakhla, DW-4. The appellant has also sustained simple swelling on left hand, which has also been proved by Dr. C.D. Bakhla, DW-4. It has been stated by defence witnesses, who are villagers of the same village, namely Dinesh Prasad and Shankar Prasad that dispute had arisen between Anil on one side and Looten & Booten on the other side. Booten had assaulted Anil by a Torch. Thus, the evidence led by the defence witnesses to the extent of there being an incident of quarrel between Anil and Looten & Booten is supported from medical evidence of injury on the head of Anil is also supported from the admission on the part of the prosecution witnesses that on the date of incident, video film was being displayed. Thus, the evidence led by the defence witnesses to the extent of there being an incident of quarrel between Anil and Looten & Booten is supported from medical evidence of injury on the head of Anil is also supported from the admission on the part of the prosecution witnesses that on the date of incident, video film was being displayed. If the entire evidence of prosecution and defence is taken together, a common thread of incident emerges that during video film screening in the school premises, the probable and possible incident of quarrel took place between Anil, brother of the appellant Looten and Booten, brother of Ram Sai. This is corroborated from the evidence of Rajendra, PW2, brother of Ram Sai and also brother of Looten and Booten, who have stated that Ram Sai was assaulted by the appellant by stating that their brothers had assaulted brother of the appellant-Kamta Prasad. 15. The evidence of the prosecution witnesses does not prove that the appellant, with preparation, had arrived in the house of the victim with an intention to either cause death or such bodily injury which was dangerous to his life. The evidence of Ram Sai, PW-1 and Uyawal, PW-5 proves that while they were coming to their house, they happened to come in front of appellant-Kamta, it was late in the night. Suddenly when the appellant-Kamta happened to see Ram Sai, he gave an assault by stating that his brother was assaulted by Ram Sai's brother. Rajendra, PW-2 has stated that due to assault, Ram Sai fell down, but no evidence that even thereafter, the appellant proceeded to assault Ram Sai. Therefore, the attending circumstances of the case prove that after the incident of quarrel between the brothers of Ram Sai, PW-1 and appellant-Kamta, both happened to come in front of each other in the night and at that time, assault was given by the appellant to Ram Sai. Therefore, the circumstances of the case create doubt as to whether the appellant had clear and definite intention to cause death of Ram Sai. This is because the brother of appellant was not assaulted by Ram Sai but by his brothers-Looten and Booten. It is not a case that in order to take revenge from those, who had assaulted appellant's brother, appellant reached their house and caught hold of them and gave blows on vital parts. This is because the brother of appellant was not assaulted by Ram Sai but by his brothers-Looten and Booten. It is not a case that in order to take revenge from those, who had assaulted appellant's brother, appellant reached their house and caught hold of them and gave blows on vital parts. There was no quarrel between Ram Sai and the appellant's brother. Therefore, the assault by the appellant on Ram Sai, appears to be merely out of anger that his brother was beaten up by Looten and Booten, who happened to be brothers of Ram Sai. However, considering that the assault given by the appellant resulted in linear fracture on the head of Ram Sai and weapon being used, a case of commission of offence under Section 326 of IPC is made out against the appellant. 16. Present is a case of incident, which had taken place in the year 1996. It has come on record that the parties have already settled their disputes and they are living harmoniously. The appellant has already undergone 84 days of imprisonment. It would, therefore be just and proper and the interest of justice to award sentence for the period already undergone by the appellant. 17. In the result, the appeal is partly allowed. Conviction of the appellant under Section 307 of IPC is altered to conviction under Section 326 of IPC and awarded sentence for the period already undergone by the appellant. In addition, fine of Rs.5,000/- is imposed on the appellant. The fine amount shall be deposited within two months, in default, rigorous imprisonment of two months. As the appellant is on bail, bail bonds stand discharged.