1. The only point arising in the above appeal, filed by the State, is whether the learned Additional Sessions Judge, Nanded, who, on Aug. 9, 1974, convicted the accused No. 1 in Sessions Case No. 62 of 1974, under Section. 326, and sentenced him to suffer Rule . 1. for two years, was right in acquitting him and the other three accused who are respondents in the above appeal, who were convicted under Section. 323 and acquitted of the offence under Section 307 read with Section. 34 of the I.P.C. and were given the benefit of Section. 4 of the Probation of Offenders Act, 1958, that is, in acquitting accused No. 1 of the charge under Section 307 and accused Nos. 2 to 4 of the charge under 307 read with Section. 34 I.P.C.
2. The learned Additional Sessions Judge has given reasons in para. 23 of his judgment. The said reasons are attacked in the above appeal filed by the State. It must be noted that the conviction of accused No. 1 is challenged by him by filing Criminal Appeal No. 931 of 1974 and as the Advocate for the accused in that case did not appear when the case was called out, yesterday or even today after it was part-heard, we have adjourned the hearing of that case without expressing any of our views on the conviction of accused No. 1 which is challenged in that appeal. That appeal is adjourned for hearing to Feb. 21, 1978. But there is no reason for keeping back the above appeal filed by the State, which, according to us, is without any substance, having regard to the factsand circumstances of the case. The rest of the accused have not challenged their conviction under Section. 323, or the order under Section. 4 of the Probation of Offenders Act, 1958, by filing an appeal.
3. We proceed to decide the above appeal filed by the State on the assumption that we are not called upon at present to decide whether the conviction of accused Nos. 1 and 2 to 4 is right in the facts and circumstances of the case. We are only concerned with the question whether the acquittal of the accused under Section, 307 and Section. 307 read with Section. 34 is right,
4. It cannot be disputed that the quarrel between the accused and the victim P.W. 12 Ratansing, appears to have taken place, at about 11 p.m.. on Sept. 3, 1973, in the house of a prostitute, where the accused are alleged to have had intercourse with a young girl of 16 years by name Madhu, P.W. 3. The quarrel was sudden; and hence the learned Sessions Judge rightly observed that there was no attempt to kill Ratansingh when accused No. 1 inflicted on him a knife injury while the other accused held the hands of Ratansingh as alleged by the prosecution.
5. It is well established that the prosecution must prove:
(1) that the death of a human being was attempted;
(2) that such death was attempted to be caused by, or in consequence of, the act of the accused;
(3) that such act was done with the intention of causing death, or that it was done with the intention of causing such bodily injury as
(a) the accused knew to be likely to cause death; or
(b) was sufficient in the ordinary course of nature to cause death; or that the accused attempted to cause such death by doing an act known to him to be so imminently dangerous that it must in all probability cause (a) death, or (b) such bodily injury as is likely to cause-death, the accused having no excuse for incurring the risk of causing such death or injury.
6. The learned Additional Sessions Judge has correctly applied the principles and held that there was no attempt on the part of the accused to cause the death of Ratansingh. All that Mr. Beo, the learned Public Prosecutor could point out in support of the appeal wasthat the evidence of Dr. Veerbhadrappa Pemanappa Misaie, P.W. 9, about the injuries of Ratansingh, showed that if the patient had not been given immediate treatment, probably the injury was sufficient in the ordinary course of nature to cause his death. Apart from the general tendency of doctors to believe that prompt treatment to a patient helped him to survive by their efforts, Section. 307 does not lay down that if a patient were to die if he would not have been treated by the doctor, or in the event of prompt and proper treatment not being given to him by the doctors, that would be an I offence under Section. 307.
7. As already pointed out above, what must be proved is an attempt to cause the death or an intention to kill. Mr. Deo submitted that the very fact that a knife was used on the vital part of the body like the neck resulting in the serious injuries deposed to by Dr. Misaie which required to be sutured immediately, shows that there was an intention to kill or an attempt to cause the death of Ratansingh. Even assuming that the argument of Mr. Deo may be correct, that is not the only inference which could be drawn.
8. It is clear from the evidence ofeven Ratansingh that the quarrel was made as a result of the sexual intercourses which all the 4 accused had with Madhu, causing her to become unconscious as stated by the prosecution witness while the accused were returning from the prostitute's house. The quarrel' was therefore a sudden quarrel, and merely because a knife was taken out, it could not necessarily be said that the accused wanted to kill the deceased. It is also possible that accused No. 1 wanted to cause grievous hurt, and therefore the learned Sessions Judge convicted him alone under Section. 82 while convicting the rest of the accused under Section. 323, as there was no evidence to show that they showed the intention of causing of even grievous hurt to Ratansingh.
9. The inference drawn by the learned Sessions Judge is also a possible and reasonable inference and when two inferences can be drawn, the benefit of the inference which leads to a lesser offence like the one under Section. 82 must be preferred.
10. Similarly, as there is no evidence to show that the other accused shared the intention or had the intention tocause the death of Ratansingh by the knife we find no reason to interfere with the conviction under Section. 323 or the order under the provisions of the Probation of Offenders Act, so far as we are concerned.
11. In the result, we find that the appeal filed by the State against the order of acquittal under Section. 307 and 307 read with Section. 34 in Criminal Appeal No. 272 of 1975 has no merit and must be dismissed. The bail bonds executed by the accused in the said appeal shall stand cancelled.
12. Whatever we have observed in the above judgment for dismissing the appeal filed by the State, shall not, in any manner, prejudice the accused No. 1 who has filed his Criminal Appeal No. 931 of 1974 challenging the conviction under Section 326 of the I.P.C.
13. Appeal dismissed.