P.D. Rajan, J.

1. This appeal is preferred by the accused against the conviction and sentence in S.C.791 of 2003 of additional District and Sessions Judge adhoc I, Pathanamthitta under section 307 IPC. The charge against the accused is that on 7.2.2000 at 7 pm, while PW1 and 2 were settling the quarrel between the accused and his wife(PW3). The accused assaulted PW2 with MO1 stone and attempted to murder him. In this incident, Adoor police registered a crime and after investigation, C.I of Police, Adoor laid charge before Judicial First Class Magistrate, Adoor. From there, the case was committed to Sessions Court, Pathanamthitta. Subsequently, it was made over to additional Sessions Court, Adhoc I.

2. During trial, prosecution examined PW1 to PW11 and marked Ext.P1 to P8 as documentary evidence. MO1 and MO2 were admitted as material objects. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. Learned additional Sessions Judge convicted the accused under section 307 IPC and sentenced him to rigorous imprisonment for two years and fine of Rs.25,000/-, in default of payment, simple imprisonment for one year. Being aggrieved by that, he preferred this appeal.

3. The main contention advanced by the learned counsel appearing for the appellant is that the prosecution failed to prove the intention necessary to attract the offence of attempt to murder. When there is no intention to cause death and no evidence to prove that ingredient, the mere bodily injury will not attract the offence under Section 307 IPC. I heard the learned Public Prosecutor also. Relied the decision in Sumersimbh Umedsinh Rajput v. State of Gujarat (2007 (13) SCC 83).

4. In order to constitute an offence under Section 307 IPC, attempt to commit murder, two elements are essential. First, the intention or knowledge to commit murder. Secondly, the actual act of trying to commit the murder. The question whether a certain act amounts to the commission of a particular offence, is a question of fact dependant on the nature of the offence and the steps necessary to take, in order to commit it. No exhaustive and precise definition of what would amount to an attempt to commit an offence is possible. Apex Court in Hari Singh v. Sukhir Singh and others (1988 SCC (Crl 984) it was held as follows:-

"Under Section 307 IPC 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 that section. The intention or knowledge of the accused must be such as is necessary to constitute murder. Without this ingredient being established, there can be no offence of "attempt to murder". Under Section 307 the intention precedes the act attributed to accused. Therefore, the intention is to be gathered from all circumstances, and not merely from the consequences that ensue. The nature of the weapon used, manner in which it is used, motive for the crime, severity of the blow, the part of the body where the injury is inflicted are some of the factors that may be taken into consideration to determine the intention. In this case, two parties in the course of a fight inflicted on each other injuries both serious and minor. The accused, though armed with ballam, never used the sharp edge of it. They used only the blunt side of it despite their being attacked by the other side. They suffered injuries but they were not provoked or tempted to use the cutting edge of the weapon. It is very significant showing that they had no intention to commit murder. They had no motive either. The fight might have been a sudden flare up. Where the fight is accidental owing to a sudden quarrel, the conviction under Section 307 is generally not called for. There is, therefore, no reason to disturb the acquittal of the accused under Section 307 in this case".

5. In this context, I have examined the oral testimony of the injured in th