- 1 - IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF JUNE, 2026 BEFORE THE HON'BLE MR. JUSTICE M.G.S. KAMAL CRIMINAL APPEAL NO.367 OF 2014 (C) BETWEEN: RAMESH S/O BOMMARAYIGOWDA @ DOLLEGOWDA, AGED ABOUT 38 YEARS, R/AT HIRALIHALLI VILLAGE, K.R. PET TALUK - 571 426, MANDYA DISTRICT. …APPELLANT (BY SRI. T.SWAROOP, ADVOCATE) AND: STATE OF KARNATAKA BY K.R.PET TOWN POLICE, MANDYA DISTRICT, REP. BY THE STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BANGALORE - 560 001. …RESPONDENT (BY SRI. B.LAKSHMAN, HCGP) THIS CRIMINAL APPEAL IS FILED U/S 378(1)(3) OF CR.PC PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE DATED 9.4.2014 PASSED BY THE PRL. SESSIONS JUDGE, MANDYA IN S.C.NO.117/2010 - CONVICTING THE APPELLANT/ ACCUSED FOR THE OFFENCE P/U/S 307 OF IPC. THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO R.I. FOR 3 YEARS AND PAY FINE OF RS.25,000/-, IN DEFAULT TO PAY FINE, HE SHALL UNDERGO R.I. FOR 6 MONTHS MORE FOR THE OFFENCE P/U/S 307 OF IPC. R Digitally signed by SUMA B N Location: HIGH COURT OF KARNATAKA - 2 - THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED ON 07.04.2026 FOR JUDGMENT COMING ON FOR PRONOUNCEMENT THIS DAY, THIS COURT DELIVERED THE FOLLOWING: CORAM: HON'BLE MR. JUSTICE M.G.S. KAMAL CAV JUDGMENT 1. This criminal appeal is by accused No.1, being aggrieved by the judgment of conviction and order of sentence dated 09.04.2014 passed in SC No.117/2010 on the file of Principal Sessions Judge, Mandya (hereinafter referred to as `trial Court') by which the trial Court has convicted accused No.1 - appellant for the offence punishable under Section 307 of the Indian Penal Code, sentencing him to undergo rigorous imprisonment for three years and to pay a fine of Rs.25,000/- and in default of payment of the fine amount, to undergo rigorous imprisonment for a period of six months. 2. Case of the Prosecution is that accused No. 3- Bommarayigowda, also known as Dollegowda, Shivshankara- PW2, Gopalagowda-PW6, being cousin brothers, had partitioned their land bearing Sy.No.102 of Hiralihalli Village. There was a dispute in respect of 6 guntas of the said land situated to the North of the land belonging to Shivashankar – PW2 and South of - 3 - the land belonging to accused No. 3 which was the reason for frequent quarrels between the accused persons on the one hand and the family of Shivashankar-PW2 on the other. That on 25.02.2010 at about 6:30 PM, when Shivashankar-PW2 and his son Yogesha-PW3 were placing wooden logs into a brick kiln set up in their land, accused Nos. 1 to 4 had come and claimed that PW2 and PW3 had cut the trees on the land belonging to them and had thus picked up a quarrel and in the process, accused No. 1 who was holding a chopper MO – 01 in his hand, caused an injury to the forehead of Yogesha-PW3. Accused No.3 had caught hold of Yogesha-PW3 and accused Nos.2 and 4 caught hold of Shivashankar–PW2 and caused injuries to PW2. At that time Marigowda-CW5 and Nagesha-PW4 and Jayaram–PW5 who were in the neighboring land, intervened and pacified the situation. 3. Shivshankar-PW2 initially admitted the injured Yogesha-PW3 in the Government hospital at KR Pete, and thereafter shifted him to Cauvery hospital in Mysore for further treatment, where he underwent treatment up to 02.03.2010. - 4 - 4. Thus, a complaint in this regard came to be filed on 25.02.2010 by Shivshankar–PW2 before the respondent police station as per Exhibit-P3 in Crime No.37/2010 against accused Nos.1 to 4 for the offence punishable under Section 307 read with Section 34 of the Indian Penal Code. After investigation, the charge sheet came to be filed. Since the accused denied the charges and sought trial, the prosecution examined 9 witnesses as PW1 to PW9 and exhibited 11 documents as Exhibits-P1 to P11 and seven material objects as MO-01 to MO-07. Statements of the accused were recorded under Section 313 of Cr.P.C. Accused denied the incriminating evidence. Trial Court framed the following point for consideration: (1) Whether the prosecution proves beyond all reasonable doubt that on 25.02.2010 at about 6:30 PM at the land Sy.No.102/4 of Hiralihali, belongs to PW-2 Shivashankara, these accused with the common intention of each other to take away the life of PW-3 Yogesh, the accused Nos.2 and 4 held the collar patti of PW-3 Yogesha and accused No.3 caught hold PW-3 Yogesha and accused No.1-Ramesha with the common intention of other accused to take away the life of PW-3-Yogesha caused injury on the forehead and face of PW-3-Yogesha with chopper MO- 01 and thereby committed an offence punishable under Section 307 IPC read with Section 34 IPC as alleged? (2) What is the final order in respect of disposal of MOs -01 to 07 being seized and marked in this case?" 5. Trial Court on appreciation of evidence, answered point No.1 partly in the affirmative, convicting accused No.1 and partly in the negative, acquitting accused Nos.2 to 4. Being aggrieved by - 5 - the conviction and sentence as noted above, accused No.1 is before this court. 6. Learned counsel for the appellant-accused No.1, taking this court through the records submitted: (a) that the trial court has failed to appreciate the admitted fact of there being a land dispute pending before the Civil Court between the accused persons and Gopalagowda-PW6, Shivashankara-PW2, Javaregowda-PW8 in respect of the land in Sy.No.102 of Hiralihalli Villlage. Thus, a false case was filed against the accused persons. (b) That in the complaint at Exhibit P3, there is no mention with regard to Nagesha-PW4 and Jayaram-PW5 personally witnessing the incident, which is an improvement made by Shivashankar-PW1-the complainant, while recording the evidence. (c) That if Shivashankar-PW2 was actually present at the time of the alleged incident, he would have tried to pacify and prevent the incident. Instead, he claimed to have only shouted, which indicates that Shivashankara-PW2 was not present at the spot. (d) That Shivashankar-PW2 has admitted, regarding accused persons filing a case against him and his son Yogesha and eye witness Nagesha-PW4 which indicate parties were not on good terms; as such, they filed a false and concocted case against the accused persons. - 6 - (e) Yogesha-PW3 has deposed that after the injury he had fallen unconscious and was not aware of anything with regard to subsequent developments. Though he claims to have been admitted as an inpatient for 20 to 25 days he was discharged within a period of one week, indicating injury sustained by him was simple in nature and was on account of his falling on to an axe. (f) That Nagesha-PW4, who is a common relative of the accused and the complainant, has admitted to the fact of the pendency of a civil dispute between the parties; as such, he was an interested witness. Jayaram-PW5 is the son of Gopalagowda, the brother of accused No.3 and there is a pending land dispute between them. That the said witness has admitted that he and Nagaraj-CW4 were at a distance of 16 mtrs away from the place of the incident and that by the time they reached the spot, the incident had already taken place, which indicates that said witness PW7 and CW4 had not seen the incident at all. (g) That Gopalagowda-PW6 who is the brother of the complainant as well as accused No.3 has clearly admitted the pendency of civil dispute. The said witness is not an eyewitness. (h) Thus, he submitted that the trial court has failed to appreciate the evidence in the proper perspective, resulting in the unjustified conviction of accused No.1. (i) Alternatively, learned counsel submitted that if this Court comes to the conclusion of accused No.1 committed the offence, - 7 - the provisions of the Probation of Offenders Act be invoked and considering the relationship between the parties, accused No.1 be released. He relied upon the judgment of the High Court of Rajasthan in the case of Nawal Kishore and another Vs. State of Rajasthan-2024 SCC Online Raj 447 in support of his case. 7. Per contra, learned HCGP justifying the judgment of conviction and order of sentence submitted that the trial Court has properly appreciated the material evidence available on record and has come to the just conclusion. Injured witness Yogesha-PW3 himself has spoken about the injury sustained by him, which is corroborated by doctor PW1, apart from deposing with regard to the nature of injury, which is supported by his own certificate produced at Ex-P1 has also withstood the test of cross- examination, and there is nothing to discriminate the evidence. That admittedly there was a civil dispute, mere pendency of a civil dispute cannot be a ground to disbelieve the case of the prosecution. Hence, seeks for dismissal of the appeal. 8. Heard and perused the records. 9. Point that arises for consideration is: (1) Whether the trial Court is justified in passing the impugned judgment of conviction and order, sentencing accused No.1- Appellant herein, for the offence punishable under Section 307 of the Indian Penal Code? - 8 - 10. The undisputed facts of the case are that the accused No.3- Bommarayigowda also known as Dollegowda, PW2-Shivshankara and PW6-Gopalagowda, are cousin brothers. That land bearing Sy.No.102 of Hiralihalli Village, being their ancestral property, had been partitioned amongst them. There was a dispute to an extent of 6 guntas of the said land, situated to the north of the land belonging to Shivashankara–PW2 and south of the land belonging to accused No.3. There is also a pending civil suit between the parties in this regard. There were frequent quarrels between the accused persons on the one hand and the family of Shivashankara–PW2 on the other. That on the fateful day, when Shivashankara–PW2 and his son Yogesha–PW3 were placing wooden logs into a brick kiln set up on their land, the accused persons had objected to the same claiming that the wooden logs were brought from their share of land. This has led to the unfortunate incident. 11. The trial Court has found accused Nos. 2 to 4 to be innocent of the alleged offence. It has also found that they had no common intention of causing injury to Yogesha-PW3. Trial Court has however convicted accused No.1/appellant herein for the offence punishable under Section 307 of IPC. - 9 - Nature of Injury: 12. Dr. Pramod G.N of Cauvery Hospital Mysore, who treated injured Yogesha-PW3 has been examined as PW1. In his deposition, PW1 has identified the wound certificate issued by him, marked as Ex.P1. He has also identified the X-ray sheets marked as Ex.P2. The nature of injuries found on the forehead of PW3 are as under: "Cut lacerated wound over right side of face extending from right forehead (1.5 CM above right eyebrow), eyebrow, and inner canthus of right eye downwards to right side of nose measuring 9cm c 2cm x bone depth with beveling of bone seen. X-ray of face with skull showed fracture of nasal bone". 13. Though a suggestion was made to the said witness during his cross-examination regarding the possibility of sustaining such injuries by falling on a sharp object, the fact remains that the nature of injuries noted above sustained by Yogesha-PW3 as well as the duration of treatment undergone by him, has been proved by the prosecution. Intention to cause death: 14. The trial court has found the evidence as against accused Nos. 2 to 4 to be inadequate to sustain the allegation of they having common intention in causing aforesaid injuries on Yogesha-PW3. - 10 - The trial Court has however found charge against accused No.1 of he committing offence under Section 307 of IPC being proved by the prosecution beyond reasonable doubt. 15. Section 307 of IPC reads as under: "307.Attempt to murder: 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 of 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 hereinbefore mentioned." 16. The Hon'ble Apex Court in the case of Roshan Lal Vs State of Haryana and another, reported in 2026 SCC Online SC 921 referring to its earlier judgments in the case of State of Madhya Pradesh v. Saleem @ Chamaru (2005) 5 SCC 554 and in the case of Bipin Bihari v. State of Madhya Pradesh (2006) 8 SCC 799, at paragraphs 26, 27, 31, 32 has held as under: "26. In order to constitute an offence under Section 307 IPC two elements are essential to be established. First, the intention or knowledge to commit murder. Secondly, the actual act of trying to commit the murder. Thus, it must have both the necessary mens rea and actus reus. Hence, to sustain a conviction under this section, it is necessary to establish that had the accused succeeded in his attempt and had the victim met his death because of such act, the offence of murder punishable u/s 302 IPC would be established. 27. However, an accused charged u/s 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of simple hurt, as the determinative factor is intention or knowledge and not the nature of the injury. This principle was discussed by this - 11 - Court in State of Madhya Pradesh v. Saleem @ Chamaru, (2005) 5 SCC 554 : 2005 SCC (Cri) 1329, the relevant paragraph of which reads hereunder: “12. 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 the 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.” Nevertheless, the nature of injury actually caused does render considerable assistance to the court in ascertaining the intention of the accused. However, courts may also ascertain the intention from other circumstances, even without reference to actual wounds. The aforesaid principle stands reiterated in the case of Bipin Bihari v. State of M.P., (2006) 8 SCC 799 : (2007) 1 SCC (Cri) 25, as follows: “9. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. 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 the act of the accused and its result, if any. The court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the 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” 31. The words ‘such intention’ found in Section 307 IPC, refer to the intention referred to in Section 300 IPC. It means : (i) intention to cause death; (ii) intention to cause such bodily injury, which the offender knows is likely to - 12 - cause death; (iii) intention to cause such bodily injury, which is sufficient in the ordinary course of nature to cause death. The essential ingredient of the offence of attempt to murder is the intention to cause death. Such intention exists prior to the actual attempt and must be established independently of the act itself or the actus reus. Once the requisite intention to commit murder is proved, the eventual outcome of the attempt becomes irrelevant, unless the attempt culminates in death, in which case the offence would fall within Section 300 IPC. In the absence of proof of intention, a conviction under this provision cannot be sustained. 32. Intention, however, can be inferred from surrounding circumstances, such as the type of weapon employed, the words spoken by the accused at the time of the incident, the motive behind the act, the parts of the body targeted, the nature and extent of the injuries inflicted, as well as the force and manner in which the blows were delivered." 17. Thus from the above it is clear for the purpose of offence under Section 307 IPC; two elements are essential to be established, namely, 'intention' or 'knowledge' to commit the murder, and the actual act of trying to commit the murder. 18. According to the prosecution’s version, on 25.02.2010 at about 6:30 PM, when Shivashankar-PW2 and his son Yogesha-PW3 were placing wooden logs into a brick kiln set up on their land, the accused Nos.1 to 4 had come and picked up a quarrel alleging that PW2 and PW3 had cut the trees from the land belonging to them and that the accused persons had caused injuries to Yogesha-PW3 and Shivashankar-PW2 as under: a. Accused No. 1 assaulted on the forehead of Yogesha- PW3 with chopper MO–01,causing a bleeding injury; - 13 - b. Accused No. 3 had caught hold of Yogesha-PW3; and c. Accused Nos. 2 and 4 caught hold of Shivashankar–PW2 and caused injuries to PW2. 19. Trial Court, at paragraphs 27, 28 and 29 has found that the incident occurred during a verbal altercation between accused Nos.1 to 4 on the one hand and PW2 and PW3 on the other, on the issues of the collection of firewood and accused No.1 suddenly causing injuries on the forehead of PW3. That there was neither premeditated intention on the part of the accused No.2 to 4 nor did they have any common intention to cause injury to PW2 and PW3. The essential question, therefore, is whether, in the given circumstances of the case, it can be held that the accused No.1 had the intention and knowledge to commit the murder. 20. As already noted above, there has been a pending civil suit between the accused persons and PW2, PW3 and other witnesses. Records also indicate a case in CC No.336/2010 pending against PW2 and PW3 for they causing injuries to accused No.3 on the file of JMFC K.R.Pete. Thus, there has been a simmering animosity between the parties. It is not the case of the prosecution that the accused had come to the spot with a premeditated intention of committing the murder of PW3. They - 14 - had come to the spot, as PW2 and PW3 had allegedly cut down the trees belonging to the accused persons, which led to the quarrel. From the circumstances of the case, it can be gathered that the assault by accused No.1 on PW3 could have been under sudden and grave provocation. Carrying a weapon like MO-01 in agricultural land is a normal occurrence. It is not the case of the prosecution that accused No.1 had carried the weapon MO-01 with the specific intention of committing the murder of PW3 or of PW2. If the intention was to commit murder, accused No.1 would have dealt severe blows on both PW2 and PW3 who according to the prosecution, were seized and held by accused Nos.2 to 4. Since the trial court has acquitted accused Nos.2 to 4 of the allegation, the intention and knowledge to commit murder of PW3 cannot be attributed to accused No.1 alone. Causing Injury: 21. Evidence of PW2 and PW3 regarding the presence of the accused persons at the spot and accused No.1 causing grievous injury to PW3 has been proved. Since nothing has been elicited to discredit the evidence of PW2 and PW3, the finding of the trial court regarding accused No.1 causing the injury cannot be found fault with. - 15 - 22. Section 320 of IPC enlists kinds of hurt which are designated as “grievous”. Considering the medical evidence, the lacerated wound over the right side of the face, extending from the right forehead, with a fracture of the nasal bone, falls under the sixth and seventh designation of hurt. 23. Thus, it can be said that accused No.1 is guilty of voluntarily causing grievous hurt which is an offence punishable under section 325 of the IPC. 24. This Court therefore deems it appropriate to convert the judgment of conviction for the offence punishable under Section 307 of IPC to one for offence punishable under section 325 of the IPC inasmuch as the prosecution material insufficient to establish intention and knowledge to commit murder on the part of accused No.1. Sentence: 25. The punishment prescribed for the offence under section 325 IPC is imprisonment of either description for a term which may extend to seven years, and he shall also be liable to fine. 26. Learned counsel for the accused No.1 has pleaded extend the benefit under the provisions of the Probation of Offenders Act. - 16 - 27. Trial Court, while considering the quantum of sentence has indeed adverted to Sections 3 and 4 of Probation of Offenders Act and has declined to extend the benefit thereunder. 28. It is necessary at this juncture to refer to Judgments of the Apex Court in sentencing the convicts of offence punishable under Section 325 IPC. Pertinent under facts and circumstances of this case, the Judgment in the case of Manjappa Vs State of Karnataka reported in (2007) 6 SCC 231 wherein dealing with the case of accused therein having been convicted for the offence committed under Section 325 IPC and having been sentenced by the by the trial Court to undergo imprisonment for three months which was reduced by the High Court for one and half months and the accused therein had remained in custody for a period of 15 days, Apex Court at paragraphs 14, 15 and 16 has held as under: "14. At the same time, however, the fact remains that the High Court has reduced substantive sentence to a month and a half. It is also not in dispute that the appellant has undergone and has remained in custody for about fifteen days. Moreover, as on today, he is on bail. Hence, even though we are of the view that in the facts and circumstances of the case, provisions of Section 360 read with Section 361 of the Code are not attracted and Om Prakash [(2001) 10 SCC 477 : 2003 SCC (Cri) 799] does not help the appellant, it would not be appropriate now to direct the appellant to surrender and to suffer the remaining sentence for about a month. The incident is of 1997 and about 10 years have passed. 15. Keeping in view all the facts and circumstances, in our opinion, ends of justice would be met, if we order that the substantive sentence which the appellant has already undergone is held sufficient. We are also of the view that it would be appropriate if over and above the amount which - 17 - the appellant herein has paid towards fine and also towards compensation to the injured victim, the appellant is ordered to pay an additional amount of Rs 10,000 (Rupees ten thousand only), to the complainant by way of compensation. 16. For the foregoing reasons, the appeal is partly allowed by holding that the sentence already undergone by the appellant is held sufficient and adequate in the facts and circumstances of the case. It is, however, ordered that the appellant will pay an additional amount of Rs 10,000 (Rupees ten thousand only) to the injured complainant within a period of one month from today over and above the amount of fine and compensation ordered to be paid by the courts below." 29. Similarly in the case of State of U.P. Vs Tribhuwan reported in (2018) 1 SCC 90 adverting to the question of imposition of sentence for the conviction under Section 325 IPC, where the trial Court had awarded Jail sentence of four years which was substituted by the High Court by imposing only fine amount of Rs.10,000/-, the Apex Court at paragraph 21 to 29 has held as under: 21. Section 325 IPC and Section 428 of the Code are relevant for deciding the appeal. These sections read as under: Section 325 IPC “325. Punishment for voluntarily causing grievous hurt.—Whoever, except in the case provided for by Section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” Section 428 CrPC “428. Period of detention undergone by the accused to be set off against the sentence of imprisonment.—Where an accused person has, on conviction, been sentenced to imprisonment for a term, not being imprisonment in default of payment of fine, the period of detention, if any, undergone by him during the investigation, inquiry or trial of the same case and before the date of such conviction, shall be set off against the term of imprisonment imposed on him on such conviction, and the liability of such person to undergo imprisonment on such conviction shall be restricted to the remainder, if any, of the term of imprisonment imposed on him: - 18 - Provided that in cases referred to in Section 433-A, such period of detention shall be set off against the period of fourteen years referred to in that section.” 22. So far as Section 325 IPC is concerned, its reading would show that once the accused is held guilty of commission of offence punishable under Section 325 IPC, then imposition of jail sentence and fine on the accused is mandatory. In other words, the award of punishment would include both i.e. jail sentence and fine. So far as jail sentence is concerned, it may extend up to 7 years as per court's discretion whereas so far as fine amount is concerned, its quantum would also depend upon the court's discretion. 23. So far as Section 428 of the Code is concerned, it provides that the period of detention spent in jail as undertrial or as convict will be set off against his total jail sentence once awarded to him in connection with the same offence. 24. This Court (three-Judge Bench) had the occasion to interpret Section 428 of the Code in State of Maharashtra v. Najakat Alia Mubarak Ali, (2001) 6 SCC 311 wherein this Court speaking through K.T. Thomas, J. representing majority view held as under: (SCC p. 320, paras 15-16) “15. … We may now decipher the two requisites postulated in Section 428 of the Code: (1) During the stage of investigation, enquiry or trial of a particular case the prisoner should have been in jail at least for a certain period. (2) He should have been sentenced to a term of imprisonment in that case. 16. If the above two conditions are satisfied then the operative part of the provision comes into play i.e. if the sentence of imprisonment awarded is longer than the period of detention undergone by him during the stages of investigation, enquiry or trial, the convicted person need undergo only the balance period of imprisonment after deducting the earlier period from the total period of imprisonment awarded. The words “if any” in the section amplify that if there is no balance period left after such deduction the convict will be entitled to be set free from jail, unless he is required in any other case. In other words, if the convict was in prison, for whatever reason, during the stages of investigation, enquiry or trial of a particular case and was later convicted and sentenced to any term of imprisonment in that case the earlier period of detention undergone by him - 19 - should be counted as part of the sentence imposed on him.” 25. In our considered opinion, the High Court was, therefore, not right in setting aside the entire jail sentence of Respondent 1 while upholding his conviction under Section 325 IPC. The High Court, in our view, ought to have either upheld the award of jail sentence of four years awarded by the Sessions Court or reduce the jail sentence to any reasonable term but it had no jurisdiction to fully set aside the jail sentence and substitute it by imposing only fine of Rs 10,000. 26. As rightly argued by the learned counsel for Respondent 1, the period already undergone by Respondent 1 (40 days) while Respondent 1 was in detention, as undertrial and as convict, was also a jail sentence and could be treated as jail sentence once awarded to Respondent 1 under Section 325 IPC, and accordingly its benefit by way of set off could be given to him under Section 428 of the Code. 27. In our considered opinion, having regard to the time consumed in the litigation (37 years) coupled with the findings of two courts below wherein it was held that Respondent 1 did not cause any injury to the deceased and injured Baij Nath (PW 2), we are inclined to uphold Respondent 1's conviction under Section 325 IPC and award to Respondent 1 punishment of imprisonment of 40 days with fine of Rs 10,000 and in default of payment of fine, to undergo one month's rigorous imprisonment. 28. Since Respondent 1 has already undergone the jail sentence of 40 days partly as undertrial and partly as convict, he is not required to undergo any further jail sentence in the case at hand. 29. Respondent No.1, however, claims to have deposited a fine amount of Rs.10,000/- imposed by the High Court. If that be so then he need not undergo any more jail sentence. However, this fact must be verified by the Sessions Court on receipt of this Judgment." 30. In the instant case facts noted above indicate accused persons and PW2, PW3 and other witnesses namely PW4 and PW5 are the common relatives. The dispute is with respect to a portion of land in Sy.No.102 of Hiralihalli Village. It is also on record that - 20 - this unfortunate incident occurred during altercation between accused persons and PW2 and PW3 on the issue of firewood. Accused No.1/appellant herein did not have any premeditated intention of causing the injury and committing the offence of attempt to murder. Accused No.1/appellant neither has any pending criminal case nor has been convicted of any criminal case. These factors have to be kept in mind while considering imposing of sentence. 31. Accused No.1/appellant was arrested on 25.02.2010. He was granted bail on 08.06.2010. Thus, he has already undergone imprisonment for a period of 106 days (26.02.2010- 11.06.2010). 32. Accused No.1 has been on bail throughout the trial. Sentence was suspended by this Court vide order dated 06.05.2014. There has been no allegation of accused No.1 having violated the terms of the bail. Accused No.1 is admittedly an agriculturist. He was aged 38 years at the time of the commission of the offence during the year 2010. Further considering the nature of relationship between the parties and the pending civil dispute, this Court deems it appropriate to sentence the accused No.1/appellant to undergo imprisonment for a period of three - 21 - and half months and to pay fine of Rs.75,000/- under Section 325 IPC. In default of payment of fine accused No.1 to undergo imprisonment for one month. Since the accused No.1 had already undergone imprisonment for a period of 106 days which is about three and half months, said period shall be set off against the period of imprisonment already undergone. Point raised answered accordingly. 33. Accordingly, following: ORDER (i) Appeal is partly allowed. (ii) Judgment of conviction and order of sentence dated 09.04.2014 passed in SC No.117/2010 by the Principal Sessions Judge, Mandya, convicting the accused No.1 for the offence punishable under Section 307 IPC is modified and accused No.1/appellant is held guilty of the offence punishable under Section 325 IPC. (iii) Accused No.1/appellant is sentenced to undergo imprisonment for a period of three and half months under Section 325 IPC and shall pay fine of Rs.75,000/- and in default of payment of fine amount shall undergo simple imprisonment for a period of one month. - 22 - (iv) Out of the fine amount of Rs.75,000/- a sum of Rs.70,000/- shall be paid to the injured Yogesha-PW3. Rs.5,000/- shall be paid to the State Treasury. (v) Since the accused No.1/appellant has already undergone imprisonment for a period of three half months, the sentence imposed in this order shall be set off against the period of imprisonment already undergone. Assistance rendered by Ms.Rao Shivani Dinesh and Ms.Sania Niyaz, Research Assistants is placed on record. Sd/- (M.G.S. KAMAL) JUDGE SBN List No.: 1 Sl No.: 20