The importance of proving the accused's intention to kill in cases of attempt to murder.

1. P. W.1 in C. C. 257/65 on the file of the Sub Divisional Magistrate, Hosdrug has come up in revision. He is the victim of assault in the case and it was alleged by him that at about 7 p. m. on 3rd October 1965 accused 1 to 4 and one Raghali Kunhappa attacked him and his brother and inflicted stab wounds on them. He was stabbed in the chest and on the hand and his brother on his abdomen and other parts of the body. He was rendered unconscious by the injuries sustained. His intestines came out and he was in an unconscious state for three days. His statement was recorded in the hospital by the Head Constable of Kasaragod Police Station and on the statement a case was registered and that was later on transferred to the Adhur Police Station since the occurrence had taken place within the jurisdiction of that station. The Adhur Police investigated and charge-sheeted the accused under S.148, 324 and 326 read with S.149 I. P. C. Raghali Kunhappa was absconding and so accused 1 to 4 alone were put on trial. 13 witnesses were examined for the prosecution. The learned Magistrate on the conclusion of the trial found the first accused guilty under S.324 I. P. C. and sentenced him to R. I. for 6 months. He was also found guilty under S.326 I. P. C. and sentenced to R. I. for one year - the sentences are directed to run concurrently. Accused 2 to 4 were acquitted. The State has not come up in appeal.

2. In this revision which is evidently one under S.439 of the Code, the ground taken is that the learned Magistrate has dropped the more serious charge of attempt to murder and tried only those offences which he is competent to try and that has resulted in grave injustice. He is also aggrieved against the order of acquittal. I do not think the petition is sustainable. Here, on the materials available before court, the gravest charge that was found disclosed, was the one falling under S.326 I. P. C. The accused were tried on that charge and the trial also has ended in the conviction of one of the accused and acquittal of the others. The question now is whether they could be put on trial again on the same facts, on the ground that from the facts proved in the case the offence that would stand revealed is the one falling under S.307 and no under S.326 or 324 I. P. C. The petitioner has no case that subsequent to the trial, further evidence has come to light which would show that the offence committed was attempt to murder and not grievous hurt by dangerous weapon. "Even if new facts have come to light, there is no authority for holding that when a man has been convicted for committing an act constituting an offence, he could be put on trial again for a graver offence if subsequently further evidence has come to light in support of it. On this analogy it was held in Nga Shwi yi v. Emperor 16 Crl. L. J. 267 that a person convicted under S.31 of the Rangoon Police Act being in possession of articles supposed to be stolen, could not be tried again for an offence under S.457 I. P. C. merely on the ground that the owner of the article is traced and some further evidence is available.

3. The case of the petitioner is that the Magistrate had shelved the charge under S.307 IPC., since he had not the jurisdiction to try a charge under S.307. But in fact this is not so. The trial was proceeded with on a charge under S.324 and 326, etc., to the knowledge of this complainant and without any protest from him. If, in fact, he had materials to show that the offence was one falling under S.307 and he had a real grievance on that point he could have taken up the matter with the Magistrate then and there and in case he did not succeed he could have pursued the point with the appellate court in revision But on the other hand, he co-operated with the trial and the trial went on proper lines to his knowledge. At the final stage of the argument, however, a point was raised by the A. P. P. that on the facts proved in the case it could be seen that the offence