The act to fall within S. 307, I. P. C. must be such that but for the intervention of some circumstance it would, if completed, have resulted in death.

Judgment

MUDHOLKAR, J.: While granting special leave in this appeal from a judgment of the Patna High Court this Court restricted it only to one question and that is whether the act of the appellant amounts to an offence under S. 307, Indian Penal Code.

2. It has been found by the courts below that on February 23, 1961 Madan Mohan Sinha (P. W. 1) and Shankar Prasad Shrivastava (P. W. 3) were attacked while they were passing through the Dharman Chowk at 1-30 P.M. by Sushil Chand Jain with a chhura as a result of which Madan Mohan and Shankar Prasad sustained grievous hurts and that these injuries were inflicted upon them by Sushil Chand with such intention or knowledge and under such circumstances that if they had resulted in death the Offence would fal1 under S. 307, Indian Penal Code. The courts below have also found that the appellant Sarju Prasad who also participated in the incident inflicted similar injuries on Shankar Prasad with similar intention. Both sushil Chand and the appellant Sarju Prasad were Convicted by the Second Assistant Sessions Judge, Arrah under S. 324 and S. 307, I. P. C. and in respect of the latter offence sentenced to rignrous imprisonment for 7 years and to a fine. Their appeals against the conviction and sentences were dismissed by the High Court of Patna. Surju Prasad has come up to this Court by special leave. We are informed that the special leave petition preferred by Sushil from the jail was summarily rejected by this Court.

3. It is common ground that the act for which the appellant has been convicted under S. 307 consisted of causing an injury in the vital region of Shankar Prasad s person but that no vital organ of Shankar Prasad was actually cut as a result of this injury. Learned counsel for the appellant, therefore, Contends that the injury was a simple one and that as it was not such as was in the ordinary Course of nature likely to result in death the offence falls not under S. 307 but under S. 324, I. P. C. According to learned counsel, before a person can be found guilty of the offence of an attempt to commit murder the prosecution must establish that the actual act which the assailant is shown to have committed was such as would in the ordinary course of nature have resulted in death and that here as the injury was a simple one, no vital organ of shankar Prasad having been damaged, it does not fall within the purview of S. 307, I. P. C. It was no doubt held in Reg v. F. Cassidy, 4 Bom HC (Cr.) 17 which was followed in Martu v. Emperor, 15 Bom LR 991 that for a person to be convicted under S. 307, I. P. C. the act done must be an act done under such circumstances that death might be caused if the act took effect, that is to say, the act must be capable of causing death in the natural and ordinary course of things. But these decisions were not followed by the same High Court in Wasudeo Balwant Gogte v. Emperor, ILR 56 Bom 434 : (AIR 1932 Bom 279). There is a larga body of decisions of other High Courts to the same effect as the decision in Gage s case, ILR 56 Bom 434 : (AIR 1932 Bom 279). There, Beaumont C. J. referring to Cassidy s case, 4 Bom HC (Cr.) 17 has observed:

"If the reasoning of the learned Judges in that case be right as to the construction of S. 307 and if the act committed by the accused must be an act capable of causing death in the ordinary course, it seems to me that logically the section could never have any effect at all. If an act is done which in fact does not cause death, it is impossible to say that that precise act might have caused death. There must be some change in the act to produce a different result, and the extent to which the act done must be supposed to be varied to produce the hypothetical death referred to in S. 307 is merely a question of degree. If a man points at his enemy a gun which he believes to be loaded but which in fact is not loaded intending to commit murder (which is,Cassidy scase), it is no doubt certain that no death will result from the