B.K. Behera, J.
1. The petitioner stands convicted under Sections 307 and 452 of the Indian Penal Code (for short, the 'Code') and sentenced thereunder to undergo rigorous imprisonment for a period of seven years on each count to run concurrently. Concurrent findings of facts have been recorded by the trial and the appellate Courts that in the afternoon of February 18 1980, the petitioner residing then in a rented house adjoining the house taken on rent by P.W. 5, then working as a Lecturer in Marine Science, entered the rented house after corning to know of his absence from his wife (P.W. 2) and asked P.W. 2 to part with rupees two hundred which P.W. 2, did not have in the box or in the almirah which were shown to the petitioner and she had rupees one hundred with her which she was prepared to hand over whereafter the petitioner, by means of a long knife (M.O.I), assaulted P.W. 2 and caused injuries on her person. The evidence of P.W. 2 with regard to the entry of the petitioner into her rented house and assault on her was clear and consistent and had been supported by the evidence of P.Ws. 1, 3 and 4 who had come to the scene on hearing the cry raised by P.W. 2 when the petitioner was near P.W. 2 with M.O.I and to whom P.W. 2 had narrated the occurrence naming the petitioner as her assailant. She had been rushed to the Medical College Hospital where her husband came on receiving a telephonic call and P.W. 2 had narrated the occurrence to him naming her assailant. In addition, there was the evidence of the doctor (P.W. 6) who had examined P.W. 2 and noticed injuries on her person which could be caused by M.O.I and that of another doctor (P.W. 8) who had noticed injuries on the person of the petitioner which could be caused during the struggle when P.W. 2 wanted to extricate herself from further assault.
2. In view of the unassailable evidence against the petitioner, the findings of facts recorded by the Courts below have not been assailed and indeed, cannot be. Mr. S.K. Padhi, appearing for the petitioner, has strenuously challenged the legality of the order of conviction under Sections 307 and 452 of the Code and has submitted that the petitioner could only be convicted under Section 324 of the Code. As to the sentence, Mr. Padhi has submitted that regard being had to the young age of the petitioner, the sentence undergone for a period of more than two months would meet the ends of justice for his conviction under Section 324 of the Code. Mr. A. Rath, the learned Additional Standing Counsel, has supported the order of conviction under both the charges and has left the question of sentence to the discretion of this Court.
3. For a conviction under Section 452 of the Code, it is necessary to prove that the dominant intention of the accused was to cause hurt while committing house trespass and the same was committed after making preparation for causing hurt to or for assaulting or for wrongfully restraining some person or for putting some person in fear of hurt, assault or wrongful restraint. The fact that an accused person trespasses into another's dwelling house for the purpose of assaulting the complainant is not sufficient to support a conviction under this section. The fact that a person enters another reason's house and commits an assault does not necessarily presuppose such preparation for it may be a case of post hoc ergo propter hoc.
4. As has been submitted at the Bar by the learned counsel for both the sides, there was no proof of any earlier motive on the part of the petitioner for the commission of the offences. The evidence would, on the other hand, show that P. Ws. 2 and 5 were well-acquainted with the petitioner who had been staying in the adjoining rented house. P.W. 2 had not, in terms, stated that when the petitioner came, he had come armed with M.O.I. It was not clear from the evidence as to where from the petitioner got M.O.I. or as to whether on the spur of the moment, he had picked it up from some place near the spot to assault P.W. 2.
5. Regard being had to the evidence of P.W. 2, the circumstances in which the petitioner came to her house and assaulted her and in the absence of any definite evidence that he had come armed when he entered the dwelling house of P.W. 2, it could not reasonably be said that the petitioner had committed house trespass after making preparation for causing hurt. The order of conviction recorded against him under Section 452 of the Code cannot be allowed to stand.
6. I would next come to the charge under Section 307 of the Code, Section 307 provides:
'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 for 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 herein before mentioned. When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death.'
7. The scope of Section 307 and some settled principles with regard to its application may be kept in mind.
8. An attempt to commit a crime is an act done with intent.. to commit that crime and forming part of a series of acts which would constitute its actual commission if it were not interrupted. The offender may do an act towards the commission of the offence of murder, but may involuntarily fail or be intercepted or prevented from consummating the crime. The nature of the injury caused may give some assistance in coming to a finding as to the intention of the accused, but such intention may also be deduced from other circumstances and may be ascertained in some cases without reference to the actual wounds. If a person knows that a certain result would ensue from his act, he would be deemed to intend such result by his act. What the Court is 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. The burden is always on the prosecution to establish the 'actus reus' that is, the accused had done something which in point of law marked the commission of the offence and the 'mens rea', that is, in taking this step, he was inspired by the intention to go on to reach a definite objective which would constitute a specific offence. The intention of the assailant may be gathered from the nature of the weapon used and the parts of the body where the injuries were inflicted.
9. Section 307 would apply even if no hurt is caused. Causing hurt is merely an aggravating circumstance and it cannot reasonably be assumed that unless an injury sufficient in the ordinary course of nature to cause death is inflicted on the victim, the intention contemplated by this section cannot be presumed. The intention precedes the act and is to be established independently of the act and not merely gathered from the consequences that ensued. A person is criminally responsible for an attempt to commit murder when with the intention or knowledge requisite to its commission, he has done the last proximate act necessary to constitute the completed offence and when the completion of the offence is prevented by some cause independent of his volition.
10. In the instant Case, the doctor (P. W. 6) had noticed the following injuries on the person of P.W. 2:
(i) One incised wound over right chest wall on its front aspect-dimension 2' x 1' x 1'.
(ii) One incised wound over left side of the neck half inch below the middle of left side of mandible- dimension 2' x 1' x 1/2'.
(iii) One incised wound over left side of mandible on its middle-dimension 1/2' x 1/4' x 1/4'.
(iv) One incised wound one inch below the right knee joint-dimension 4' x 1' x 1/2'.
(v) Multiple cut injuries on the middle of the left palm middle finger, ring finger at their middle, each 1/2' x 1/3' x 3/3'.
(vi) Multiple cut injuries over right thumb at its base, ring finger, and middle finger of their middle-each 1' x 1/2' x 1/2'
(vii) One incised wound over right chest at its posterior aspect-dimension 3' x 1' x 3/4'.
(viii) One incised wound over the left arm at its middle-dimension 3' x 1/2' x 1/2'.
He had opined that of the injuries, the injuries mentioned in (v) and (vi) were grievous while the other injuries were simple in nature. One injury on the right chest and another injury on the middle of the left side of the mandible had been noticed. These two knife-wounds were, no doubt, on the vital parts, but his evidence would show that the injuries were simple in nature. This witness had admitted in his evidence that there had been no fracture at the scats of the injuries mentioned in (v) and (vi) characterised by him as grievous in nature. These injuries were not on vital parts and were not such as would endanger human life. These injuries do not conic under any of the clauses mentioned in Section 320 of the Code defining 'grievous hurt' and, therefore, these two injuries must also be characterised as simple in nature. It might be that as a measure of abundant caution, an operation had been undertaken to find out as to whether there had been internal injuries to the organs as a result of the external injury No. 1 which was on the right chest as referred to above, but the fact remains that the injury was simple in nature. Although a statement had been made by the doctor that the cumulative effect of the injuries was sufficient to cause death, he had stated in his cross-examination that initially he had not opined that the cumulative effect of the injuries was sufficient to cause death. The petitioner, it was alleged, had been armed with a long knife (M.O.I.), but as the medical evidence would show, he had not caused any grievous injury on any vital part on the person of P.W. 2. P.W. 2 was, no doubt, an unarmed and defenceless lady and had testified that the petitioner had stabbed her on her neck, but the evidence would not warrant a conclusion that the petitioner had attempted to deal a decisive blow to kill P.W.2.
11. As earlier indicated, the victim lady and petitioner had previous acquaintance and when the petitioner asked for Rs. 200/-, as he was in need of it, P.W. 2 wanted to part with Rs. 100/- which she had after opening the box telling the petitioner that she had no more than Rs. 100/-. The petitioner then wanted the almirah to be opened which P.W. 2 did and then, as would appear from the evidence, the petitioner dealt some blows by means of M.O.I. on the spur of the moment. There was no evidence that he had come armed with M.O.I. Nor was there any evidence that he brought it out of any place of concealment. It was not clear as to how and wherefrom he got M.O.I. True it is that the working of the human mind is mysterious. Motive for commission of an offence may sometimes be known only to the perpetrator of the crime and to no one else. In the instant case, however, apparently and as the prosecution case would itself indicate, the petitioner could not have had the intention of committing the murder and he had no motive to commit such a dastardly and heinous crime. In such a case, therefore, his intention is to be inferred from his actual act and from the injuries caused by him. He should ordinarily have intended to cause only those kinds of injuries which had actually been caused by him although it cannot be laid down as a proposition of law that any intention to commit murder on the part of the accused should not be inferred simply because the injuries received by the victim were all simple in nature. The liability of an accused is to be limited to the act which he actually did and should not be extended so as to embrace a consequence of another act which he might have done, but did not do.
12. In AIR 1965 S.C. 843-Sarju Prasad v. State of Bihar, after laying down that the mere fact that the injury actually inflicted did not cut any vital organ of the victim would not, by itself, be sufficient to take the act out of the purview of Section 307 of the Code, Their Lordships of the Supreme Court observed and held:
' Having said all this we must point out that the burden is still upon the prosecution to establish that the intention of the appellant in causing the particular injury to Shankar Prasad was of any of the three kinds referred to in Section 300, Indian Penal Code. For, unless the prosecution discharges the burden the offence under Section 307, I.P.C., cannot possibly be brought home to the appellant. The state of the appellant's mind has to be deduced from the surrounding circumstances and as Mr. Kohli rightly says the existence of a motive to cause the death of Shankar Prasad would have been a relevant circumstance. Hence, the prosecution has led no evidence from which it could be inferred that the appellant had a motive to kill the victim of his attack. ...'
In the case before me, the prosecution had failed to establish any motive for the commission of the crime of murder and on the other hand, the evidence would indicate that the petitioner could have no intention to cause the death of the victim nor could it be said that by his act, he was likely to know that the consequences of his act would be the death of the victim.
13. In 1972 SCC (Criminal) 40: AIR 1972 S.C. 1764-Jai Narain Mishra and Ors. v. The State of Bihar, the appellant Suraj was responsible for the chest injury described by the doctor as a penetrating wound 1' x 1/2' chest wall deep (wound not probed) on the right side of the chest with margins clean cut. Suraj, according to the evidence, had thrust a Bhala into the chest when the victim had fallen as a result of the blow given by another with the Farsa on his head. According to the doctor, wound on the chest was of a grievous nature as the victim (developed surgical emphysima on the right side of the chest. There was profuse bleeding and the condition of the patient at the time of the admission was low and serious and the injury was dangerous to life. Out of the four injuries which the medical officer noted, this injury was of a grievous nature while the other three injuries were simple in nature. The Supreme Court observed and held:
'... Where four or five persons attack a man with deadly weapons it may well be presumed that the intention is to cause death. In the present case, however, three injuries are of a simple nature though deadly weapons were used and the fourth injury caused by Suraj though endangering life could not be deemed to be an injury which would have necessarily caused death but for timely medical aid. The benefit of doubt must, therefore, be given to Suraj with regard to the injury intended to be caused and, in our opinion, the offence is not one under Section 307, IPC, but Section 326, IPC. His conviction, therefore, under Section 307, IPC is set aside and we convict him under Section 326, IPC.......'
14. In AIR 1983 S.C. 305: 1983 Cr.L.J. 331-State of Maharashtra v. Balram Bama Patil and Ors., the Supreme Court has laid down:
'......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. 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.'
15. In the case of Mathew Omalt and Anr. v. State of Orissa 57 (1984) C.L.T. 305: 1984 (I) OLR 303 my learned brother R.C. Patnaik, J., quashed an order taking cognizance under Section 307 of the Code by observing that although in that case, a knife had been used and a blow had been given on the head, it would be difficult to hold, having regard to the nature of the injury caused and the genesis of the occurrence which had arisen out of a quarrel and the blow had been given on the spot, that the intention of the accused persons was to attempt to cause death.
16. Keeping the aforesaid principles laid down by the Supreme Court and this Court in mind and judging the act of the petitioner in causing the injuries on the person of the victim lady without any apparent motive on the spur of the moment, it would not be legal and reasonable to hold that the petitioner's act would come within the purview of Section 307 of the Coda. The petitioner is liable to be convicted under Section 324 of the Code.
17. The petitioner, aged about nineteen years at the time of the occurrence, has remained in custody for more than two months in the course of investigation. Besides, he has remained in custody for a few days after he surrendered for making the application in revision as required under the Rules of this Court and before his release on bail. In my view, instead of imposing a sentence of imprisonment which would require the petitioner to go back to the jail and mix up with the criminals, it would be just and reasonable to sentence him to undergo imprisonment for the period already undergone with a sentence of fine which would be paid as compensation to the victim lady for the storm and stress undergone by her and the mental and physical agony she suffered from.
18. In the result, I would allow the revision in part. The order of conviction and sentence passed against the petitioner under Section 452 of the Indian Penal Code is set aside. The order of conviction passed against him under Section 307 of the Indian Penal Code is also set aside and in lieu thereof, he is convicted under Section 324 of the Indian Penal Cod and sentenced there under to undergo imprisonment for the period already undergone by him and he is sentenced to pay a fine of Rs. 1,000/- (rupees one thousand) and in default of payment thereof, to suffer simple imprisonment for a period of two months. The entire fine amount, if and when realised, shall be paid to, the victim lady (P. W. 2) as compensation.