JUDGMENT : The present appellant as a sole accused was tried and later convicted by the Court of the II Additional District and Sessions Court, Ramanagara, sitting at Kanakapura, Ramanagara District (hereinafter referred to as ‘Trial Court’ for brevity), in Sessions Case No.2/2010, by its judgment of conviction and order on sentence dated 16-01-2014, for the offence punishable under Section 307 of the Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’ for brevity) and was sentenced accordingly. It is against the said judgment of conviction and order on sentence, the appellant/accused has preferred this appeal. 2. The summary of the case of the prosecution is that, on 05-11-2007, the accused on the pretext of repaying the alleged hand loan of a sum of Rs.200/-to PW-6 (CW-1) – Manjunatha, took him on a motor cycle near a well in the garden of Dimbadahalli Mahesh near Doddalahalli, within the limits of complainant Police Station and on the pretext of showing him a big fish in the well, pushed him in the well and also threw a stone on his head with an intention to kill him and thereby has committed an offence of attempting to murder PW-6 – Manjunatha. 3. The charge was framed for the said offence against the accused, who pleaded not guilty, as such, in order to prove the alleged guilt against the accused, the prosecution examined in all nine witnesses from PW1 to PW9, got marked documents from Exhibits P1 to P5(a) and a shirt as Material Object at MO-1. From the accused’ side, neither any witness was examined nor any documents were marked as exhibits. 4. After hearing both side, the Trial Court by its impugned judgment of conviction and order on sentence dated 16-01-2014 convicted the accused for the offence punishable under Section 307 of IPC and sentenced him accordingly. It is against the said judgment of conviction and order on sentence, the appellant has preferred this appeal. 5. The Trial Court records were called for and the same are placed before this Court. 6. Heard arguments of the learned counsel for the appellant and the learned High Court Government Pleader for the respondent State. 7. Perused the material placed before this Court including the impugned judgment and also Trial Court records. 8. For the sake of convenience, the parties would be referred to as per their ranks before the Trial Court. 9. 6. Heard arguments of the learned counsel for the appellant and the learned High Court Government Pleader for the respondent State. 7. Perused the material placed before this Court including the impugned judgment and also Trial Court records. 8. For the sake of convenience, the parties would be referred to as per their ranks before the Trial Court. 9. The points that arise for my consideration in this appeal are: 1] Whether the prosecution has proved beyond reasonable doubt that, on 05-11-2007, at about 2:30 p.m., near the well in the garden of Dimbadahalli Mahesh near Doddalahalli within the limits of complainant Police Station, the accused with an intention to commit the murder of CW-1 (PW-6) – Manjunatha, pushed him in an open well and also assaulted him with a stone causing injuries on his body including one grievous injury and thereby has committed an offence punishable under Section 307 of IPC? 2] Whether the impugned judgment of conviction and order on sentence under appeal deserves any interference at the hands of this Court? 10. Among the nine witnesses examined by the prosecution, the important witness who speaks about the incident is primarily none else than the alleged victim CW-1 PW-6 – Manjunatha. The said witness in his examinationinchief has stated that, accused was working as a cleaner in the lorry belonging to his family. On 05-11-2007, at about 8:30 a.m. while he was cleaning the lorry, accused went there. Since the accused was in debt of Rs.500/-to him, when he asked the accused to repay the same, he, on the pretext of giving the same to him in the village, took him on a motor cycle to a place near Alahalli. There, on the pretext of having a bath in an open well took him near the open well. Further, on the pretext of showing him a fat fish in the well, he made the accused to peep into the well and when he was so peeping into the well, the accused lifted his leg and made him to fall into the well. Thereafter, the accused also threw a stone on his head, due to which, he sustained bleeding injury on his head. Then the accused left the place. Despite he yelling, nobody came to his rescue. However, by holding the motor pump set pipe, he came out of the well and came to the road. Thereafter, the accused also threw a stone on his head, due to which, he sustained bleeding injury on his head. Then the accused left the place. Despite he yelling, nobody came to his rescue. However, by holding the motor pump set pipe, he came out of the well and came to the road. He stopped a motor cycle rider who was going on the way and told him the details, who took him to Alahalli and then he was taken to Hospital at Sathanur, where he was given treatment. From there, he went to the Police Station and lodged a complaint before the Police which he has identified at Ex.P2. The witness has further stated that he has also shown the well to the Police, who drew a scene of offence panchanama as per Ex.P-3. He also gave his shirt worn by him at the time of incident to the Police which shirt he has identified at MO-1. He also stated that the stone with which the accused hit him went to the bottom of the well. He stated that, in order to kill him, the accused had committed the said act. The witness has identified the accused in the Court as the one who had committed the alleged act. Even in his cross-examination, not only he adhered to his original version but also gave some more details about the alleged incident. 11. The second important witness in the series is, PW-5 (CW2)Shivarudregowda who has stated that, on 05-11-2007, in the afternoon at about 2:30 p.m., he saw the accused going along with his motor cycle near a well called Kallu mathada well At that time, Manjunatha (victim) was also coming with bleeding injury on his head. He enquired the injured Manjunatha, who stated that the person who just then went on a motor cycle had taken him near the well on the pretext of giving him the money he had borrowed and further on the pretext of showing him the fish in the well had pushed him into the well. While he was attempting to come up by holding the pipe, the accused also threw a stone on his head and attempted to kill him. The witness has further stated that he brought the injured to the village called Doddalahalli and after getting him the meals, he arranged for taking him to the Hospital. While he was attempting to come up by holding the pipe, the accused also threw a stone on his head and attempted to kill him. The witness has further stated that he brought the injured to the village called Doddalahalli and after getting him the meals, he arranged for taking him to the Hospital. Then, he went on his motor cycle in search of the accused, whom he noticed near the boundary of the forest and brought him to the Sathanur Police Station. This witness also identified the accused as the one who was found along with the motor cycle on the said day. This witness also in his cross-examination denied the suggestions made to him from the accused’s side and adhered to his original version. 12. The third witness in the series who speaks about the incident is, PW-4 (CW3) – Maveeranna/Mayanna, the father of PW-6 Manjunatha. The said witness has stated that the accused was working as a cleaner in their lorry. On 05-11-2007, he was told that the accused took his son (son of this witness) PW-6 on the pretext of giving him money and pretending to show him a well and when his son was peeping into the well, he pushed him into the well and thereafter threw a stone on his head. Hearing about the said incident, he went there and noticed that his son had sustained bleeding injury on his head. Subsequently, he took his son to the Police Station. The witness further stated that, the accused had borrowed a hand loan of a sum of Rs.200/-from his son and on the pretext of repayment of the said amount he had attempted to kill his son. He too has identified the accused in the Court. In his cross-examination, he adhered to his original version and shown that as on the date of incident, the accused was under his services as a cleaner of his lorry. 13. PW1 – (CW-8) – Dr.Prashanth is the medical Doctor who stated that, on 05-11-2007, at about 6 o’clock, when he examined the injured who had come with the history of being pushed into a well and assaulted with a stone on his head, he noticed a lacerated wound over the head of the injured measuring 10 cm. x 0.5 cm, bone deep and an abrasion over the right big toe, measuring 1 x 2 cm. x 0.5 cm, bone deep and an abrasion over the right big toe, measuring 1 x 2 cm. The witness has opined that, injury No.1 was grievous in nature and injury No.2 was simple in nature. He also stated that those injuries were fresh when examined and were possible to be caused when assaulted with a stone. In this regard, he has issued a Wound Certificate which he has identified at Ex.P1. In his cross-examination, a suggestion made to him that the grievous injury found on the victim is possible to be caused when a person falls on a sharp object or a stone, was not admitted by the Doctor stating that as the said possibility was very bleak. However, he admitted that injury No.2 can occur in such a situation. 14. In the light of the above evidence, it was the argument of the learned counsel for the appellant that, admittedly there are no eye witnesses to the alleged incident. Further, there is no corroboration with respect to the incident properly. He further submitted that it is not known as to why the complainant should go with the accused merely because the accused had called him. He further submitted that, it is also doubtful as to why the complainant should peep into the well. Learned counsel further submitted that the non-seizure of the motor cycle said to have been used by the accused and the non-seizure of the stone from the well also introduces a doubt in the case of the prosecution. 15. Per contra, learned High Court Government Pleader in his argument submitted that in all circumstances, presence of eye witnesses cannot be expected, that too, when admittedly the accused was a well known person to the complainant since the accused was working under the father of the complainant as a cleaner in his lorry, as such, the complainant accompanying the accused is also quite natural. He submitted that a person peeping into a well out of curiosity, as to what could be found in the well, is also a common thing. As such, making use of the said opportunity, the accused has committed the alleged act, which is proved by the prosecution beyond reasonable doubt. 16. He submitted that a person peeping into a well out of curiosity, as to what could be found in the well, is also a common thing. As such, making use of the said opportunity, the accused has committed the alleged act, which is proved by the prosecution beyond reasonable doubt. 16. The case of the prosecution is based upon the evidence of these three main witnesses who are the material witnesses and more importantly, the evidence of injured witness PW-6 and PW-4, who claims to have heard from none else than his injured son, immediately after the incident. 17. A reading of the evidence of the injured (PW-6), as observed above, would go to show that the witness in his evidence has clearly shown that the accused was a known person to him and at the relevant point of time, was working as a cleaner in their lorry. The said evidence of PW-6 is further corroborated by the evidence of PW-4, father of the injured, who also stated that, at the relevant point of time, the accused was working as a cleaner in their lorry. Thus, the acquaintance of the accused with the complainant is established in their evidence. 18. The evidence of PW-6 injured Manjunatha that, accused had availed a loan from him and on the pretext of returning the said loan, he took him to a garden land near Alahalli, is supported by the evidence of PW-4 who also stated that the accused had availed a loan of Rs.200/-from his son. Though learned counsel for the appellant submitted that in the complaint as well in the evidence of PW-4, the said loan amount is shown at Rs.200/-, whereas PW-6 has stated the said amount as Rs.500/-, but said minor variance would not take away the case of the prosecution. However, their evidence would go to show that the accused had availed some loan amount as a loan from the complainant/injured PW-6. It is on the said pretext of returning the said loan, the accused had taken the complainant/injured along with him on his motor cycle on the date of the incident. 19. However, their evidence would go to show that the accused had availed some loan amount as a loan from the complainant/injured PW-6. It is on the said pretext of returning the said loan, the accused had taken the complainant/injured along with him on his motor cycle on the date of the incident. 19. The evidence of PW-6 further goes to show that, though he refused to join the accused to take a bath in the open well in the said garden land, however, the accused stating that there is a fat fish in the well, raised curiosity for the complainant to peep into the well and making use of the said moment, lifted the legs of the complainant which made the complainant to fall into the water of the well which water according to PW-6 was not less than 8 to 10 feet deep. Except making the said suggestion, nothing could be elicited in the cross-examination of PW-6 to suspect the said evidence of PW-6 about the accused making the complainant to peep into the well and then pushing him and making him to fall into the water of the well. PW-6 – injured Manjunatha has further stated that apart from yelling, he also tried to come out from the well, however, at the same time, the accused also threw a stone on his head and left the place. Due to the assault by the said stone, he sustained bleeding injury on his head. Still, he could manage to hold the water motor pump set pipe which was running into the well and to come out from the well. He further stated that after he coming out from the well and thereafter to the road, he noticed a rider of the motor bike to whom he narrated the details, who, in turn, took him to Alahalli and then to Hospital. The said evidence is further corroborated by the evidence of PW-5, who, as observed above, has stated that he saw the injured person coming on the road and when enquired, he narrated that the accused who had just then passed on the motor bike had pushed him in the well and assaulted with a stone. PW-5 also stated that when he saw the injured, he had sustained a bleeding head injury. PW-5 also stated that when he saw the injured, he had sustained a bleeding head injury. The said evidence of PW-5 corroborates the evidence of PW-6 and shows that the accused had pushed PW-6 into the well and also thrown a stone on his head. The witness has also identified the accused in the Court as the one whom he had seen on the date of incident passing along with his motor bike. 20. The evidence of PW-4 also supports the case of the prosecution, who, as observed above, has stated that, having heard about the information, he went and saw his bleeding son and heard the details about the incident from none else than his son. His evidence could not be shaken in his cross-examination. Thus the uniform evidence of PW-6complainant Manjunatha coming from none else than the injured coupled with the evidence of PW-4 and PW-5 would clearly go to show that on the date of incident, i.e. on 05-11-2007, in the afternoon at about 2:30 p.m., the accused had pushed PW-6 into an open well, having a water depth of 8 to 10 feet and also thrown a stone which has caused the injury on the head of PW-6. The evidence of the Doctor also would go to show that the said injury caused on the head is possible to be caused when a person is assaulted with a stone and the said injury was grievous in nature. 21. Learned counsel for the appellant also submitted that the non-seizure of the stone and the motor bike of the accused would also lead to doubt the case of the prosecution. However, about the non-seizure of the stone, PW8 (CW-12) – Vinod Bhat, the Investigating Officer has stated that he did not get the swimmers or divers in the place to dive into the well and to search for the stone. He could not even get the experts in swimming to do the said exercise. The said reason given by the witness in not securing the stone has not been denied in his cross-examination. Therefore, the Investigating Officer (PW8) has given a reason for non-seizure of the stone. As such, though the seizure of the stone would have further supported the case of the prosecution, but the non-seizure of the said stone, has, in no way, weakened the case of the prosecution. Therefore, the Investigating Officer (PW8) has given a reason for non-seizure of the stone. As such, though the seizure of the stone would have further supported the case of the prosecution, but the non-seizure of the said stone, has, in no way, weakened the case of the prosecution. Similarly, the alleged non-recovery of the motor cycle said to have been used by the accused in taking the complainant with him to the said garden land also has not weakened the case of the prosecution. Therefore, the argument of the learned counsel for the appellant on the said point is not acceptable. On the other hand, the reliable evidence of none else than the injured complainant, whose evidence is trustworthy, and the evidence of PW-4 and PW-5 prove beyond reasonable doubt that, the accused on the alleged date had pushed the complainant into an open well and also assaulted him with a stone on his head. 22. Regarding the scene of offence, PW-5 has stated that he was present when the scene of offence panchanama was drawn. Even PW7 Anil Kumar and PW9 – Boregowda have also stated that the said scene of offence panchanama as per Ex.P-3 was drawn in their presence. Further, the evidence of injured victim (PW-6) that the shirt worn by him at the time of incident was blood stained due to the head injury inflicted upon him and the evidence of PW-5 that the injured PW-6 had sustained bleeding injury on his head when he saw him and the evidence of PW9 that the said T-shirt at MO-1 was seized in his presence at Ex.P5 would all corroborate the evidence of the Investigating Officer that, he has drawn the scene of offence panchanama as per Ex.P-3 and also seized the blood stained T-shirt under a Mahazar at Ex.P5. As such, the scene of offence panchanama at Ex.P-3 would also go to show that it was an open well in the garden land of about 15 meters in diameter, which, according to the panchas, was having about 15 feet depth of water. Thus, the place of offence, the presence of water in the well, and the injured sustaining bleeding injury on his head due to the assault with a stone, is further corroborated by the evidence of these witnesses. 23. Thus, the place of offence, the presence of water in the well, and the injured sustaining bleeding injury on his head due to the assault with a stone, is further corroborated by the evidence of these witnesses. 23. The motive behind the commission of the crime is stated only by two witnesses i.e. PW-4 and PW-6. Both of them have stated that the accused being a cleaner of their lorry had availed a hand loan of a sum of Rs.200/-from the injured, repayment of which, when demanded by the injured (PW-6), the accused took him to a lonely place on the pretext of repaying the loan amount and committed the alleged act. Though a denial suggestion was made to both these witnesses, but the witnesses have not admitted those suggestions as true. Except that, nothing could be elicited from PW-4 and PW-6 to suspect the alleged motive behind the commission of the crime. However, the defence of the accused was that the injures sustained by PW-6 was due to a fall from a motor cycle. Suggestions made to that effect both to PW-4 and PW-5 have not been admitted as true by them, on the other hand, the medical evidence by PW1 would go to show that the grievous injury on the head of the injured is possible to be caused when a person is assaulted with a stone of handful size. From these, it has to be held that, the accused has failed to establish his defence or to show that the case of the prosecution is doubtful. As such, the prosecution could able to establish the motive behind the alleged crime. 24. Learned counsel for the appellant before concluding his arguments, submitted that the ingredients of Section 307 are not made out by the prosecution. He further submitted that assuming that the prosecution has proven the alleged act of the accused, still, it falls short to call it as an attempt to commit murder. 25. Per contra, learned High Court Government Pleader in his argument submitted that the very evidence of the witnesses and more particularly, the evidence of the injured himself, goes to show that the act of the accused was to commit the murder of the injured complainant. 26. Section 307 of the IPC reads as below : “307. Attempt to murder. 25. Per contra, learned High Court Government Pleader in his argument submitted that the very evidence of the witnesses and more particularly, the evidence of the injured himself, goes to show that the act of the accused was to commit the murder of the injured complainant. 26. Section 307 of the IPC reads as below : “307. Attempt to murder. Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.” A reading of the aforesaid Section would go to show that, if the act committed by the accused has resulted in death of a victim, then, the act would become an act of murder. However, if it results in an attempt only, then Section 307 of IPC would be attracted. An offence under Section 307 of IPC 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 IPC, except that in this case, the act falls short of the death of the deceased which is necessary under Section 302 of IPC. In the instant case, whether the proven act of the accused in pushing the complainant (PW-6) into the well and throwing a stone upon him would constitute an act of attempting to commit the murder of the complainant is to be scrutinized cautiously. As observed above, since there are no eye witnesses to the incident, the only important evidence to be considered on this point is that of PW-6 followed by the evidence of PW-4. Even according to PW-6, the accused pushed him into the water and thereafter threw a stone upon him and immediately left the place. Admittedly, when there were no other witnesses in the area, had really accused intended to cause the murder of the complainant PW-6, then merely by throwing a stone upon the accused, probably he would not have left the place. Admittedly, when there were no other witnesses in the area, had really accused intended to cause the murder of the complainant PW-6, then merely by throwing a stone upon the accused, probably he would not have left the place. By staying there for some time, he would have ensured the death of the injured and then would have left the place. In the instant case, the said act of the accused in leaving the place the moment he threw a stone towards the complainant while the complainant was still yelling for help from the well would go to show that before the accused left the place, he knew that the injured was still living and was yelling for help. This creates a doubt in the act of the accused from calling it as an attempt to murder. On the other hand, since the accused is proved to have used a stone and a bleeding injury is caused by assaulting the injured on the vital part of his body, i.e head, the act of the accused would constitute into an offence of voluntarily causing grievous hurt by means of an instrument which when used as a weapon of offence, is likely to cause death which attracts punishment under Section 326 of IPC. However, the Trial Court has failed to notice this minute difference between the ingredients of Section 326 and Section 307 of IPC and failed to notice that the evidence placed by the prosecution before it had fallen short to hold the accused guilty of the offence punishable under Section 307 of IPC and that it would suffice to hold him guilty for the offence punishable under Section 326 of IPC. As such, it is only to such an extent, the interference by this Court in the impugned judgment of conviction passed by the Trial Court is warranted. So far as the sentence of imprisonment ordered by the Trial Court is concerned, it is the sentencing policy that the sentence ordered must be proportionate to the gravity of the proven guilt of the accused. It must not be either exorbitant or for name sake compared to the proportionality of the gravity of the proven offence. So far as the sentence of imprisonment ordered by the Trial Court is concerned, it is the sentencing policy that the sentence ordered must be proportionate to the gravity of the proven guilt of the accused. It must not be either exorbitant or for name sake compared to the proportionality of the gravity of the proven offence. In the instant case, though the injury is said to have been caused on the head of the injured complainant, but the Doctor has not opined it as a fatal one, which would have led to death of the injured which was a lacerated wound measuring 10 m x 0.5 cm x bone depth. Further, even according to the prosecution, the injured was treated as an out patient and was discharged by giving treatment. As such, without even admitting him as an inpatient, it appears that the witness could able to attend to his normal work from the immediate moment thereafter, since he himself went to the Police Station and lodged the complaint and also took the Police on the next day to the place of offence and shown them the spot of the offence. This, in the circumstance of the case, considering the gravity of the situation, I am of the view that the sentence ordered by the Trial Court, which is imprisonment for three and a half years and a fine of Rs.7,000/and in default to pay fine, to undergo simple imprisonment for three months, is slightly on the higher side and the same requires to be reduced by bringing it down and making it proportionate to the gravity of the guilt proved and within the scope of Section 326 of IPC. Accordingly, I proceed to pass the following: ORDER [i] The appeal filed by accused/appellant is allowed in part; [ii] The judgment of conviction dated 16-01-2014 passed by the learned II Additional District and Sessions Court, sitting at Kanakapura, Ramanagara District, in Sessions Case No.2/2010, convicting the present appellant/accused for the offence punishable under Section 307 of the Indian Penal Code, 1860, is set aside; [iii] The accused/appellant – Shivanna @ Shiva, S/o. Munisiddaiah, aged about 20 years resident of Hegganurudoddi, Uyyamballi Hobli, Kanakapura Taluk, Ramanagara District 567 160, is acquitted of the alleged offence punishable under Section 307 of IPC, however, he is convicted for the offence punishable under Section 326 of IPC; [iv] Consequently, the order on sentence dated 16-01-2014 passed by the same Court in the same Case is modified, ordering the accused to undergo simple imprisonment for a period of two and a half years and to pay a fine of Rs.6,000/- and in default of payment of fine, to undergo simple imprisonment for three months for the offence punishable under Section 326 of IPC; [v] Rest of the order of sentence passed by the Trial Court including the compensation ordered under Section 357 of the Code of Criminal Procedure and the benefit of setoff given to the accused under Section 428 of Cr.P.C. stands confirmed; [vi] The bail bonds, if any, executed by the accused/appellant stands cancelled. Registry to transmit a copy of this judgment along with Trial Court records to the Trial Court immediately. The accused is also entitled for a free copy of this entire judgment.