To establish an attempt to murder under S. 307 IPC, the prosecution must prove an intention to kill or an attempt to cause death.

VADDYA, J. :- 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. 52 of 1974, under S. 326, and sentenced him to suffer R. I. for two years, was right in acquitting him and the other three accused who are respondents in the above appeal, who were convicted under S. 323 and acquitted of the offence under S. 307 read with S. 34 of the I.P.C. and were given the benefit of S. 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 S. 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 facts and circumstances of the case. The rest of the accused have not challenged their conviction under S. 323, or the order under S. 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 S. 307 and S. 307 read with S. 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. Deo, the learned Public Prosecutor could point out in support of the appeal was that the evidence of Dr. Veerbhadrappa Pemanappa Misale, 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, S. 307