JUDGMENT : 1. This appeal has been preferred by the appellant under Section 374 (2) of the Code of Criminal Procedure, 1973 against judgment dated 23.08.2004 passed by Additional Sessions Judge, Manendragarh, District- Korea (C.G.) in Session Trial No. 109/2004, wherein the said court convicted and sentenced the appellant for commission of offence under Section 307 of IPC and sentenced him to undergo R.I. for 5 years and fine of Rs. 500/-, in default of payment of fine to undergo further R.I. for 5 months. 2. The case of the prosecution, in brief, is that the appellant is resident of Village- Lohari whereas victim- Ramcharan (PW-1) is resident of Village- Chiraipani. Marriage of the appellant was solemnized in the house of Jaimangal (PW-6) at Village- Chiraipani. On the date of incident i.e. on 24.06.2002, the appellant had gone to his matrimonial house at about 1.30 to 2.00 p.m., Jaimangal Singh (PW-6) and the appellant went to locality of victim- Ramcharan (PW-1) where they consumed liquor and thereafter they went to the house of Jaimangal (PW-6) and were talking about relationship. During talks, there was some sudden heated arguments and the accused started using filthy language to Jaimangal & Ramcharan and when Ramcharan objected the same, the accused again abused him, thereafter the accused attacked to the victim-Ramcharan by spade which was kept there on back of his head and caused grievous hurt to him. With assistance of other witnesses, the victim was taken to Police Help Centre, Nagpur from where he recorded Dehati Nalsi (Ex. P/1) and thereafter Crime No. 275/2002 was registered for commission of offence under Section 307 of IPC and investigation was initiated. After completing all the formalities, charge-sheet was filed before the Judicial Magistrate First Class, Manendragarh, who has committed the case to the learned Sessions Judge, which was subsequently transferred to Additional Sessions Judge, Manendragarh for trying the offence under Section 307 of IPC. 3. The prosecution, in order to bring home guilt of appellant, has examined eight witnesses namely Ramcharan (PW-1), Doraj (PW-2), S. Das (PW-3), Dr. P.K. Rohan (PW-4), Ramcharan Singh (PW-5), Jaimangal Singh (PW-6), Premlal (PW-7) & I.M. Kureshi (PW-8) and exhibited documents namely FIR (Ex. P/1A), Dehati Nalsi (Ex. P/1), Property seizure memo (Ex. P/2), memorandum statement of Shobhnath recorded under Section 27 of Evidence Act (Ex. P/3), seizure memo (Ex. P/4), X-ray plate (Ex. P/5), opinion of doctor (Ex. P.K. Rohan (PW-4), Ramcharan Singh (PW-5), Jaimangal Singh (PW-6), Premlal (PW-7) & I.M. Kureshi (PW-8) and exhibited documents namely FIR (Ex. P/1A), Dehati Nalsi (Ex. P/1), Property seizure memo (Ex. P/2), memorandum statement of Shobhnath recorded under Section 27 of Evidence Act (Ex. P/3), seizure memo (Ex. P/4), X-ray plate (Ex. P/5), opinion of doctor (Ex. P/6A), MLC report (Ex. P/6), opinion of doctor (Ex. P/7A), examination of spade (Ex. P/7), letter to CMO (Ex. P/8A), report of Chief Medical Officer (Ex. P/8), property seizure memo (Ex. P/9), Statement of Ramcharan (Ex. P/10), Statement of Jaimangal Singh (Ex. P/11), Property seizure memo (Ex. P/12), Najri Naksha (Ex. P/13), letter written by Superintendent of Police for forensic examination (Ex. P/14) & receipt of FSL (Ex. P/15). The accused was examined under Section 313 of the Cr.P.C. wherein he has denied the charge levelled against him and pleaded innocent. 4. Victim-Ramcharan (PW-1) has stated that the appellant assaulted him by spade and caused injury on his head, there was bleeding, he fell down and became unconscious. In his cross-examination, he has denied that Shobhnath was pulling spade and then only he has sustained injuries on his head. 5. S.Das (PW-3) who is an X-ray technician has stated that he has done X-ray of the victim and has exhibited X-ray plate (Ex. P/5). 6. Dr. P.K. Rohan (PW-4), who examined the injured has stated that the injuries have been sustained by hard and sharp edged weapon, which are grievous in nature. He has exhibited X-ray report and stated that there was some fracture in bone. In his cross-examination, he has admitted that the injuries could be caused by hard and blunt object also. He has also stated that there was fracture in upper table as well as inner table of head. 7. The statement of the accused/appellant has been recorded under Section 313 of the Cr.P.C. wherein he has stated that he has been falsely implicated due to grudge and he has exhibited statement of Ramcharan (DW-1). The learned trial Court after appreciating the evidence and the material placed on record, convicted the appellant for commission of offence under Section 307 of IPC and sentenced him to undergo as aforestated. Being aggrieved with the aforesaid judgment of conviction, the appellant has preferred the instant appeal under Section 347 (2) of the Cr.P.C. before this Court. 8. The learned trial Court after appreciating the evidence and the material placed on record, convicted the appellant for commission of offence under Section 307 of IPC and sentenced him to undergo as aforestated. Being aggrieved with the aforesaid judgment of conviction, the appellant has preferred the instant appeal under Section 347 (2) of the Cr.P.C. before this Court. 8. The appellant during trial remained in jail from 25.06.2022 to 16.07.2002 i.e. 22 days and after conviction from 23.08.2004 till the date he has been granted bail by this Court on 04.07.2006 i.e. about 1 year, 10 months and 11 days. Thus, the appellant has remained in jail for about 2 years (1 year, 11 months & 3 days). 9. Learned counsel for the appellant would submit that the appellant has already suffered about 2 years of jail sentence. He would further submit that the alleged incident took place on 24.06.2002 and 20 years have already been lapsed and on the date of incident, the appellant was aged about 30 years and now he is aged about 50 years. He would also submit that the offence under Section 307 of IPC is not made out against the appellant and the injuries sustained by the victim, were not fatal which may cause death to the victim and would pray for taking lenient view with regard to quantum of sentence. In support of his submission, he would refer to the judgment rendered by Coordinate Bench of this Court in Kalwant Singh Vs. State of Madhya Pradesh, 2018 CJ(Chh) 381, and the judgment rendered by Hon'ble the Supreme Court in Surain Singh Vs. State of Punjab, (2017) 5 SCC 796 . 10. On the other hand, learned State counsel would submit that the prosecution has proved the case beyond reasonable doubt. The victim has clearly deposed before the trial Court how badly he has been assaulted by the appellant. He would further submit that the finding arrived at by the trial Court convicting the appellant for commission of offence under Section 307 of IPC, is illegal, justify and does not warrant any interference by this Court and would pray for dismissal of the appeal. 11. I have heard learned counsel for the parties and perused the documents placed on record with utmost satisfaction. 12. 11. I have heard learned counsel for the parties and perused the documents placed on record with utmost satisfaction. 12. The point requires to be determined by this Court is whether the finding recorded by the learned trial Court under Section 307 of IPC is legal and justified or not. To answer this point, it is expedient for this Court to extract Section 307 of IPC, which reads as under:- “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. Attempts by life convicts.—[When any person offending under this section is under sentence of 1[imprisonment for life], he may, if hurt is caused, be punished with death.]” 13. Dr. P.K. Rohan (PW-4) was examined before the trial Court and has given details of the injuries sustained by the victim, which reads as under:- (i) Incised wound 12x3 c.m. on back side of head and below the wound, cut bone was seen. 14. The said witness has given his opinion stating that he has seen bone of skull brain, which was clearly seen and there was fracture also. He has admitted that there were fractures in both upper and inner table of skull and exhibited opinion (Ex.P/7) wherein he has stated that the injuries may be caused by hard and sharp edged weapon and seems dangerous in nature and duration of injury was prior to 2-5 hours. 15. From the evidence of Dr. P.K. Rohan (PW-4), it is quite vivid that the injuries were grievous in nature, but not so fatal that it may cause death to the victim, therefore, to attract the offence under Section 307 of IPC, intention and gravity of injuries, have to be seen which the prosecution should prove beyond reasonable doubt. 15. From the evidence of Dr. P.K. Rohan (PW-4), it is quite vivid that the injuries were grievous in nature, but not so fatal that it may cause death to the victim, therefore, to attract the offence under Section 307 of IPC, intention and gravity of injuries, have to be seen which the prosecution should prove beyond reasonable doubt. The facts and material on record would clearly establish that the victim and other persons have consumed liquor and due to heated arguments, all of a sudden on account of provocation, the appellant assaulted the victim only one stroke by spade, which was kept at place of occurrence causing injuries to the victim. Thus, it is quite established that there was no intention of the appellant to cause death to the victim and even the Doctor (PW-4) has nowhere given opinion that the injuries sustained by the victim may cause death to him. As such, the offence under Section 307 of IPC is not made out. 16. Hon'ble the Supreme Court in Jage Ram & others Vs. State of Haryana, (2015) 11 SCC 366 , has held at paragraphs 12 & 13 as under:- “12. For the purpose of conviction under Section 307 IPC, prosecution has to establish (i) the intention to commit murder and (ii) the act done by the accused. The burden is on the prosecution that accused had attempted to commit the murder of the prosecution witness. Whether the accused person intended to commit murder of another person would depend upon the facts and circumstances of each case. To justify a conviction under Section 307 IPC, it is not essential that fatal injury capable of causing death should have been caused. Although the nature of injury actually caused may be of assistance in coming to a finding as to the intention of the accused, such intention may also be adduced from other circumstances. The intention of the accused is to be gathered from the circumstances like the nature of the weapon used, words used by the accused at the time of the incident, motive of the accused, parts of the body where the injury was caused and the nature of injury and severity of the blows given etc. 13. The intention of the accused is to be gathered from the circumstances like the nature of the weapon used, words used by the accused at the time of the incident, motive of the accused, parts of the body where the injury was caused and the nature of injury and severity of the blows given etc. 13. In the case of State of M.P. vs. Kashiram & Ors., the scope of intention for attracting conviction under Section 307 IPC was elaborated and it was held as under:- "12......13. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The section makes a distinction between the act of the accused and its result, if any. The court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. Therefore, an accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt. 14. This position was highlighted in State of Maharashtra v. Balram Bama Patil, (1983) 2 SCC 28 , Girija Shanker v. State of U.P. (2004) 3 SCC 793 and R. Prakash v. State of Karnataka (2004) 9 SCC 27 . * * * 16. Whether there was intention to kill or knowledge that death will be caused is a question of fact and would depend on the facts of a given case. The circumstances that the injury inflicted by the accused was simple or minor will not by itself rule out application of Section 307 IPC. The determinative question is the intention or knowledge, as the case may be, and not the nature of the injury." See State of M.P. v. Saleem (2005) 5 SCC 554 pp. 559-60, paras 13-14 and 16. 13. 6. Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed, etc. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed, etc. This position was illuminatingly stated by this Court in Sevaka Perumal v. State of T.N. (1991) 3 SCC 471 para 6.” 17. The doctor (PW-4) has given opinion that the injuries are grievous in nature and there were two fractures in skull on upper and inner table, which clearly shows that the injuries were grievous in nature, thus, offence under Section 326 of IPC is attracted in the present facts and circumstances of the case and not Section 307 of IPC. 18. From the evidence brought on record, the prosecution is unable to prove the case beyond reasonable doubt that the appellant had intention to commit murder of the victim, only one assault was made and also considering the fact that the appellant, victim and all the witnesses had consumed liquor and due to certain provocation, assault was made, as such, the basic ingredients of offence under Section 307 of IPC are missing in the present facts and circumstances of the case. 19. Hon'ble the Supreme Court in State of Madhya Pradesh Vs. Kanha alias Omprakash, (2019) 3 SCC 605 , has held at paragraphs 10 to 13 as under:- “11 Several judgements of this Court have interpreted Section 307 of the Penal Code. In State of Maharashtra v Balram Bama Patil, this Court held that it is not necessary that a bodily injury sufficient under normal circumstances to cause death should have been inflicted: “9...To justify a conviction under this section it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in this section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof.” (Emphasis supplied) This position in law was followed by subsequent benches of this Court. 11. In State of M P v Saleem, this Court held thus: (1983) 2 SCC 28 (2005) 5 SCC 554 (SCC pp. 559- 60 para13) “13. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The section makes a distinction between the act of the accused and its result, if any. The court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. Therefore, an accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt.” (Emphasis supplied) 12. In Jage Ram v State of Haryana, this Court held that to establish the commission of an offence under Section 307, it is not essential that a fatal injury capable of causing death should have been inflicted: (SCC p. 370, para 12) “12. For the purpose of conviction under Section 307 IPC, the prosecution has to establish (i) the intention to commit murder; and (ii) the act done by the accused. The burden is on the prosecution that the accused had attempted to commit the murder of the prosecution witness. For the purpose of conviction under Section 307 IPC, the prosecution has to establish (i) the intention to commit murder; and (ii) the act done by the accused. The burden is on the prosecution that the accused had attempted to commit the murder of the prosecution witness. Whether the accused person intended to commit murder of another person would depend upon the facts and circumstances of each case. To justify a conviction under Section 307 IPC, it is not essential that fatal injury capable of causing death should have been caused. Although the nature of injury actually caused may be of assistance in coming to a finding as to the intention of the accused, such intention may also be adduced from other circumstances. The intention of the accused is to be gathered from the circumstances like the nature of the weapon used, words used by the accused at the time of the incident, motive of the accused, parts of the body where the injury was caused and the nature of injury and severity of the blows given, etc.” 13. The above judgements of this Court lead us to the conclusion that proof of grievous or life threatening hurt is not a sine qua non for the offence under Section 307 of the Penal Code. The intention of the accused can be ascertained (2015) 11 SCC 366 from the actual injury, if any, as well as from surrounding circumstances. Among other things, the nature of the weapon used and the severity of the blows inflicted can be considered to infer intent.” 20. Therefore, the finding recorded by the trial Court that the appellant has been convicted for commission of offence punishable under Section 307, is perverse finding incorrect application of law, which deserves to be set aside by this Court. 21. From the evidence brought on record, it is quite vivid that the prosecution has failed to prove beyond reasonable doubt that the appellant had intention to commit murder of the victim, but considering the injuries sustained by the victim corroborated by the medical evidence Dr. P.K. Rohan (PW-4), it is quite vivid that the appellant has caused grievous hurt to the victim, therefore, the appellant deserves to be convicted under Section 326 of IPC in place of Section 307 of IPC and accordingly, conviction under Section 307 of IPC is altered to Section 326 of IPC. P.K. Rohan (PW-4), it is quite vivid that the appellant has caused grievous hurt to the victim, therefore, the appellant deserves to be convicted under Section 326 of IPC in place of Section 307 of IPC and accordingly, conviction under Section 307 of IPC is altered to Section 326 of IPC. This Court while exercising the appellate power can alter the charges levelled against the appellant as well as alter the conviction according to Section 386 of the Cr.P.C., which reads as under:- “386. This Court while exercising the appellate power can alter the charges levelled against the appellant as well as alter the conviction according to Section 386 of the Cr.P.C., which reads as under:- “386. Power of the Appellate Court.- After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor if he appears, and in case of an appeal under section 377 or section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may- (a) in an appeal from an order or acquittal, reverse such order and direct that further inquiry be made, or that the accused be re- tried or committed for trial, as the case may be, or find him guilty and passentence on him according to law; (b) in an appeal from a conviction- (i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re- tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or (ii) alter the finding, maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the Same; (c) in an appeal for enhancement of sentence-(i) reverse the finding and sentence and acquit or discharge the accused or order him to be re- tried by a Court competent to try the offence, or (ii) alter the finding maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce the same; (d) in an appeal from any other order, alter or reverse such order; (e) make any amendment or any consequential or incidental order that may be just or proper; Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement: Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal.” 22. Hon'ble the Supreme Court in Dinesh Yadav Vs. Hon'ble the Supreme Court in Dinesh Yadav Vs. State of Jharkhand, (2017) 5 SCC 764 , has held at paragraphs 13 to 15 as under:- “13. However, having regard to the totality of the facts and circumstances of the matter and the material on record, it is clear that the accused-appellant did not make any attempt to commit murder of the informant. The incident has taken place on the spur of the moment as the informant had objected the appellant from cultivating the land which is adjoining his house. Hence the offence, committed by the appellant would come under Section 326 of the IPC. Learned counsel for the appellant submitted that the appellant is more than 72 years of age and leniency may be shown in his favour by way of imposing lesser sentence. The injured had sustained the compound fracture of forearm. Keeping in mind the aggravating and mitigating circumstances and in the interest of justice, the appellant should be sentenced to undergo simple imprisonment for one year and to pay fine of Rs.50,000/-. 14. Accordingly, the Appeal is disposed of with conclusion that the appellant is convicted for the offence under Section 326 of the Indian Penal Code and is sentenced to undergo R.I. for one year and to pay fine of Rs.50,000/-. In default of payment of fine the appellant shall undergo further imprisonment of six months. The appellant is entitled to the benefit of set off under Section 428 Crl.P.C. 15. The appellant shall surrender before the concerned authorities to serve the remaining sentence within four weeks and fine shall be deposited within four weeks from the date of this judgment. If the fine is deposited, an amount of Rs. 45,000/- shall be paid as compensation to the legal representatives of the injured- informant (since deceased).” 23. Thus, the offence under Section 326 of IPC is made out and accused is charged for commission of offence under Section 326 of IPC in place of Section 307 of IPC. If the fine is deposited, an amount of Rs. 45,000/- shall be paid as compensation to the legal representatives of the injured- informant (since deceased).” 23. Thus, the offence under Section 326 of IPC is made out and accused is charged for commission of offence under Section 326 of IPC in place of Section 307 of IPC. The maximum sentence which can be awarded for commission of offence under Section 326 of IPC is imprisonment for life or with imprisonment of either description for term which may extend to 10 years and shall also liable to fine, therefore, considering these aspects of the matter and also considering the fact that appellant has already undergone about 2 years of jail sentence, this Court is of the opinion that ends of justice would be served if the appellant is sentenced to the jail sentence to the period already undergone. Accordingly, his sentence is reduced to the period already undergone. However, the fine amount imposed by the trial court shall remain intact. 24. With the aforesaid modifications, the appeal is partly allowed, while altering the conviction for offence under Section 326 of IPC in place of offence under Section 307 of IPC, reducing the sentence already undergone by the appellant which is about 2 years.