JUDGMENT : – This Criminal appeal under section 374(2) of Criminal Procedure Code has been filed by the appellant-Kanhaiyalal Banjara against the judgment of conviction and order of sentence dated 11-11-1998 passed by 2nd Additional Sessions Judge, Seoni in Sessions Trial No. 52/1997, whereby appellant-Kanhaiyalal has been convicted for the offence punishable under section 307 of Indian Penal Code and has been sentenced to 5 years R.I. and fine of Rs. 500/-, in payment of default of fine, shall further undergo R.I. for a period of 3 months. 2. The prosecution story, in short, is that on 5-3-1997 complainant Komal Singh s/o Mukhram, aged 35 years, R/o Village Malkheda, reported Police, Ghansore, that today at about 5.00-5.30 p.m. he was sitting in the courtyard of his home, when Savitri Bai and Badami’s wife, passed from there, he asked them not to go from there with weight, as when they pass with load the tilesroof (Khappar) of his house get damaged. In the meantime, Sukhram reached there and they smoke bidi together. When Kanhaiya reached there, Komal asked him as to why he is passing from narrow way with load (Bojha). At this Kanhaiya gave lathi blows on his head, right hand and paw of left hand, causing injuries to him. Incident was witnessed by Sukhram and Sonabai. Matter reported by Komal was entered into G. D. at Srl. No. 166 and he was sent for medical examination. 3. On 5-3-1997 at Community Health Centre, Ghansore, Dr. Hemant Chandravanshi examined Komal and found bruises on his right forearm, left hand and left temporal. He was advised X-ray for injury No. 2 and 3. In District Hospital, X-ray as advised of injured Komal was taken. In X-ray fracture was found on his occipital bone of skull and 4th and 5th metacarpal bone of left hand. After receipt of MLC and X-ray report, Arvind Dubey (P.W.10) registered FIR (Exhibit P/8) at FIR No. 16/97 of P. S. Ghansore, for commission of offence under section 325 of Indian Penal Code. Query letter (Exhibit P/6) was sent to Dr. Hemant Chandravanshi and Dr. Hemant Chandravanshi (P.W.9) opined that injury No. 3 on the occipital of skull was dangerous to life. After investigation, Police Ghansore filed charge sheet for commission of offence under section 325, 307 of Indian Penal Code before the C.J.M., Lakhnadon, who in turn, committed the case to the Court of Session. Hemant Chandravanshi and Dr. Hemant Chandravanshi (P.W.9) opined that injury No. 3 on the occipital of skull was dangerous to life. After investigation, Police Ghansore filed charge sheet for commission of offence under section 325, 307 of Indian Penal Code before the C.J.M., Lakhnadon, who in turn, committed the case to the Court of Session. Learned Additional Sessions Judge, Seoni framed charge against the appellant/ accused for commission of offence under section 307 of Indian Penal Code. Accused abjured his guilt and claimed to be tried. 4. In support of the case, prosecution has examined as many as 10 witnesses : Komal Singh (P.W.1), Sukhram (P.W.2), Dr. K. C. Meshram (P.W.3), Laxmi Prasad (P.W.4), J. K. Dubey (P.W.5), Parasram (P.W.6), Chhidilal (P.W.7), Chabbilal (P.W.8), Dr. Hemant Chandrawanshi (P.W.9) and Arvind Dubey (P.W.10). Whereas, accused in his support examined Rambai (D.W.1). 5. Learned Additional Sessions Judge, Seoni, after recording the evidence of prosecution witnesses and hearing the parties, found the appellant/accused-Kanhaiyalal guilty for commission of offence under section 307 of Indian Penal Code and sentenced him as aforementioned. 6. Being aggrieved by the conviction and sentence imposed upon appellant/accused, this appeal has been filed on the ground that incident took place on the spur of moment and appellant caused only 2 injuries, one on the left hand and the other on the head by stick (lathi) lying in the Courtyard of injured himself. 7-8. Learned counsel for the appellant submitted that he had no intention to cause death of injured. Injured has not remained hospitalized even for a day. No offence under section 307 of Indian Penal Code is made out. Therefore, even if fracture was found in the skull of the appellant, injury was not dangerous to life. Learned trial Court was not justified in convicting the appellant/accused for commission of offence under section 307 of Indian Penal Code. Learned trial Court has committed error in convicting the appellant for commission of offence under section 307 of Indian Penal Code. At the most offence falls under section 325 of Indian Penal Code. It is lastly submitted that the alleged incident has taken place in the year 1997 and 25 years have lapsed since the incident and during this period, no offence has been registered against the appellant as he is living peacefully. At the most offence falls under section 325 of Indian Penal Code. It is lastly submitted that the alleged incident has taken place in the year 1997 and 25 years have lapsed since the incident and during this period, no offence has been registered against the appellant as he is living peacefully. It was also submitted by the learned counsel for the appellant that the sentence imposed upon the appellant is disproportionate and has prayed that it should be reduced to the period already undergone by the appellant/ accused. 9. On the other hand, learned Government Advocate has supported the impugned judgment passed by the trial Court and submitted that the prosecution has proved its case beyond all reasonable doubt. Learned trial Court has not committed any error in convicting the appellant/accused for commission of offence under section 307 of Indian Penal Code as evidence of injured Komal (P.W.1) stands corroborated by the evidence of eyewitness Sukhram (P.W.2), medical evidence and promptly lodged report. 10. I have heard rival submissions of the learned counsel for the parties and perused the record. 11. Komal Singh (P.W.1) in his evidence has deposed that he knew the accused. On 5-3-1997 when he came from Ghansore after attending the Court appearance (Peshi), he was sitting in the Court yard of his house. At that point of time Savitri and wife of Badami passed from there. He asked them not to pass from his Chhedi (narrow way between two houses) as his tiles roof falls and get damage. After some time, Sukhram came there. They smoke bidi together. Thereafter, Kanhaiya came. He asked Kanhaiya not to go with loads (bojha) because it causes damage to his tiles roof. On this, he had some altercation with Kanhaiya. Matter was pacified by Sukhram. Thereafter, Kanhaiya picked a lathi (stick) lying in the Court yard of complainant Komal and gave blows over his head due to which he fell unconscious. Thereafter, Kanhaiya gave another blow on his hand and claw. He was taken to Police Station by his brother. He had lodged report in P. S. Ghansore. He was taken to Nagpur, where he remain admitted for 3-4 days. 12. The evidence of Komal Singh (P.W.1) stand corroborated from the evidence of Sukhram (P.W.2) who has deposed that on the date of incident he had gone to Komal’s house to see calendar. He and Komal smoke ‘bidi’ together. He had lodged report in P. S. Ghansore. He was taken to Nagpur, where he remain admitted for 3-4 days. 12. The evidence of Komal Singh (P.W.1) stand corroborated from the evidence of Sukhram (P.W.2) who has deposed that on the date of incident he had gone to Komal’s house to see calendar. He and Komal smoke ‘bidi’ together. When Kanhaiya was passing from there, Komal asked him not to go from there as his tiles roof gets damaged. On this some altercation took place between them. After some time, Komal armed with a stick (lathi) came there and gave blows over the Komal’s head and hand. Komal had fallen down. 13. Komal (P.W.1) has been consistent and firm in his evidence. But discrepancy has occurred in his evidence as to where from Kanhaiya had brought the stick as in Exhibit D/1 police statement it is mentioned that Kanhaiya armed with lathi came from his house, whereas, in the Court evidence, Komal has stated that Kanhaiya picked stick from his court-yard, but aforesaid discrepancy is not material as it is unchallenged that it was Kanhaiya who gave stick blows on the hand and head of injured and in that regard, the evidence of Komal (P.W.1) find support with the unrebutted evidence of Sukhram (P.W.2) . 14. As far as the evidence of Komal Singh (P.W.1) is concerned, that is fortified not only from the evidence of Sukhram but also find corroboration from the medical evidence and promptly lodged report. 15. Dr. Hemant Chandrawanshi (P.W.9) in his evidence has deposed that on 5-3-97, he was posted in the Community Health Centre, Ghansore. He had examined Komal s/o Mukhram, aged 35 years and had found following injuries on his person : – (1) bruise mark wound - 3”x1” in the middle of right forearm (2) bruise mark wound in left hand - 3”x1” with swelling and red colour (3) bruise mark wound 3”x1” over the left temporal region. Injury No. (1) was simple in nature. All injuries were caused by hard and blunt object within 24 hours. X-ray was advised for injury No. (2) and (3). He has proved his X-ray report (Exhibit P/5). 16. Dr. Injury No. (1) was simple in nature. All injuries were caused by hard and blunt object within 24 hours. X-ray was advised for injury No. (2) and (3). He has proved his X-ray report (Exhibit P/5). 16. Dr. K. C. Meshram (P.W.3) has deposed that X-ray of the skull and left hand of injured Komal was taken and in X-ray he had found fracture on the occipital region of the skull and in the upper part of the 4th and 5th metacarpal of left hand. He has proved X-ray report (Exhibit P/1) and X-ray Plate (Exhibit P/1A and P/1B). In cross examination Dr. Hemant has admitted that all the three injuries were bruise wound. He further deposed that on 19-3-97 a query letter (Exhibit P/6) was received from Police Ghansore and in it he had opined that injury caused on the occipital bone of the skull could have been dangerous to life. 17. It is undisputed that injury was caused by hard and blunt object ‘lathi’. Though Dr. Hemant Chandrawanshi gave opinion that injury of the occipital region of the skull could have been dangerous to life but at the same time it cannot be overlooked that in this case complainant has not remain hospitalized in any hospital even for a day. 18. The question is whether the injury caused to the complainant Komal on the head was sufficient to cause death or not? Dr. Hemant Chandrawanshi has opined that if proper treatment was not given to the victim, then his death was possible. 19. In regard to constitute the offence under section 307 of Indian Penal Code, the Supreme Court in the matter of Parsuram Pandey and others vs. State of Bihar, (2004) 13 SCC 189 has held as under : – “15. To constitute an offence under section 307 two ingredients of the offence must be present : – (a) an intention of or knowledge relating to commission of murder ; and (b) the doing of an act towards it. For the purpose of section 307 what is material is the intention or the knowledge and not the consequence of the actual act done for the purpose of carrying out the intention. Section clearly contemplates an act which is done with intention of causing death but which fails to bring about the intended consequence on account of intervening circumstances. For the purpose of section 307 what is material is the intention or the knowledge and not the consequence of the actual act done for the purpose of carrying out the intention. Section clearly contemplates an act which is done with intention of causing death but which fails to bring about the intended consequence on account of intervening circumstances. The intention or knowledge of the accused must be such as is necessary to constitute murder. In the absence of intention or knowledge which is the necessary ingredient of section 307, there can be no offence ‘of attempt to murder’. Intent which is a state of mind cannot be proved by precise direct evidence, as a fact it can only be detected or inferred from other factors. Some of the relevant considerations may be the nature of the weapon used, the place where injuries were inflicted, the nature of the injuries and the circumstances in which the incident took place. On the evidence on record, where the prosecution has been able to prove only that the villagers have sustained injuries by indiscriminate firing and it was an open area with none of the injured nearby there is a complete lack of evidence of intention to cause such injuries for which the accused persons Parshuram and Bishram could have been convicted under section 302 of the Indian Penal Code. Nature of the injuries sustained by the villagers is simple. None of the witnesses have stated that the fire arm causing injuries was being used by any particular accused for causing injuries to them. In fact the injured have not seen any of the accused persons using fire arms. There is no evidence about the distance from which the said two accused fired. The only evidence led by the prosecution is indiscriminate firing by Parshuram and Bishram which has caused simple injuries to the villagers. Amongst the injured villagers, only PW1 and DW-1 were examined. Thus this evidence does not constitute the intention or knowledge of the accused persons for committing the murder or doing of an act towards it. The evidence only shows that the villagers have sustained simple injuries. Amongst the injured villagers, only PW1 and DW-1 were examined. Thus this evidence does not constitute the intention or knowledge of the accused persons for committing the murder or doing of an act towards it. The evidence only shows that the villagers have sustained simple injuries. In the circumstances, we acquit Parshuram and Bishram under section 307 of Indian Penal Code.” As per the aforesaid judgment of the Supreme Court, for the purpose of commission of an offence under section 307 of the Indian Penal Code, it is material that there should be an intention or knowledge of the offence and secondly the act done for the purpose of carrying out the intention. 20. The same principle of law has been laid down by the Supreme Court in the matter of Sumersingh Umedsingh Rajput vs. State of Gujarat, (2007) 13 SCC 83 . The same reads as under : – “14. Even assuming that PW-8 received a fire arm injury which in the facts and circumstances of the case does not appear to be plausible, having regard to the positive evidence of the prosecution as has been stated by PW-4 Neelabhai it seems certain that a scuffle had ensued. A case of section 307 of the Indian Penal Code, therefore, has not been made out. The ingredients of section 307 are: (i) an intention of or knowledge relating to commission of murder; and (ii) the doing of an act towards it.” 21. From the aforesaid judgment also, it is clear that intention of or knowledge relating to commission of murder and doing of an act towards it are the essential ingredients to constitute offence under section 307 of Indian Penal Code. In the present case, when the appellant/accused reached the house of complainant-Komal, he was unarmed and was going on his own way carrying load (bojha) on his head. Some altercation took place between him and injured over the petty issue of passing with load from Cheddi (narrow way between two house). In that rage of fit, appellant gave only two blows by the stick lying in the Court-yard of injured. However, the injury caused in occipital region of injured cannot be said to be sufficient to cause death in ordinary course of nature as complainant has not remain hospitalized in any hospital as no medical paper of hospitalization has been produced before Court. 22. However, the injury caused in occipital region of injured cannot be said to be sufficient to cause death in ordinary course of nature as complainant has not remain hospitalized in any hospital as no medical paper of hospitalization has been produced before Court. 22. To justify the conviction under section 307 of Indian Penal Code, the Court has to see whether the act was done with an intention to commit murder. The nature of injuries caused may be of assistance in giving a finding as to the intention of the accused, such intention may also be gathered from the circumstances like the nature of weapon used, parts of the body where the injury was caused, severity of injury and other facts of the case. In this case only three injuries have been caused : two in hand and another on the head, admittedly, vital part of the body. But it cannot be overlooked that appellant/accused has acted in state of furore as appellant and complainant had some altercation over petty issue of passing through the narrow way situated near the house of the complainant. Therefore, it can be inferred that he did not cause injury with an intention to cause death. Hence, I am of the firm view that appellant/ accused was not liable to be convicted under section 307 of Indian Penal Code for having given a lathi blow which resulted in fracture in the occipital region of the injured. Instead, he was liable to be punished under section 325 of Indian Penal Code. Therefore, I am of the view that learned trial Court was not justified in holding the appellant/ accused guilty for commission of offence under section 307 of Indian Penal Code as learned trial Court has overlooked the aforesaid vital aspect. 23. Looking to the nature of the case and the evidence on record, in my opinion, the appellant/accused is guilty of commission of offence punishable under section 325 of Indian Penal Code instead of under section 307 of Indian Penal Code. 24. In the result, the conviction and sentence imposed upon the appellant/accused for the offence under section 307 of Indian Penal Code is set aside and instead he is convicted for the offence under section 325 of Indian Penal Code and sentenced to undergo 3 years R.I. and to pay a fine of Rs. 24. In the result, the conviction and sentence imposed upon the appellant/accused for the offence under section 307 of Indian Penal Code is set aside and instead he is convicted for the offence under section 325 of Indian Penal Code and sentenced to undergo 3 years R.I. and to pay a fine of Rs. 5000/- and in default to further undergo R.I. for 6 months. On payment of fine by appellant/accused, Rs. 3000/- be paid to the injured/complainant Komal as compensation under section 357(1) of Criminal Procedure Code. Thus, appeal is partly allowed. 25. Appellant is on bail. His bail bond shall stand discharged. He shall surrender before the trial Court on or before 22-4-2022 for undergoing the remaining part of jail sentence. In case, the appellant fails to surrender for undergoing the remaining part of jail sentence, the trial Court shall take all necessary steps to commit him to jail for undergoing remaining jail sentence.