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"Heard the learned advocate Mr. D.J. Dasadiya on behalf of accused-applicant and the learned A.P.P. on behalf of the State. The learned advocate Mr. D.J. Dasadiya submitted that in FIR there is no allegation of instigation by any one to assault the alleged victim. But, later on after investigation prosecution witness came with a story that the alleged accused were instigated to kill the victims by calling them by name. The learned advocate has placed reliance on Medical Certificate issued by Dr. Dijesh Shah for injury sustained by Brijeshbhai, Hareshbhai Dholawala, Chiragbhai Kamdar and Nareshbhai along with charge sheet papers in which the injuries opined as 'simple'. It is also submitted that after C.T. Scan of Brain no abnormality was detected. Hence, all the injuries are of simple nature, no fracture or internal damage has been found and therefore, it can not be said that injuries were inflicted with intention of causing death. Therefore, applicability of Section 307 of I.P.C., does not arise. Therefore, accused should be discharged from offence U/s.307 of I.P.C., and accused can be prosecuted for offence U/s.304 of I.P.C., with other offence mentioned in charge sheet.

16.Like most words, the word "intention" is capable of different shades of meaning. In the Indian Penal Code it is used in relation to the consequences of an act, the effect caused thereby, not in relation to the act itself-the voluntariness required to constitute an act is implied by that very word. Thus, in the case of murder. the intention required is (omitting clause secondly of Section 300 which rarely comes into play) the intention of causing death or the intention of causing bodily injury sufficient in the ordinary course of nature to cause death, more or less the malice aforethought of the English law, the former being generally described as specific intent or malice and the latter as implied malice or some times as constructive malice, though the use of the latter term seems open to criticism. It seems to us clear from the illustrations to Sections 88, 89 and 92, that the Code uses the word "intention", in the sense that something is intentionally done if it is done deliberately or purposely, in other words, is a willed though not necessarily a desired result or a result which is the purpose of the deed. The surgeon of the illustrations certainly does not desire the harm that may be caused; nor is that his purpose. Nevertheless, the provisions of the sections show that he could have intended the harm, and is saved from being a criminal only by those provisions. Likewise a man who shoots another in the heart and kills him in self- defence might not desire, on the contrary might very much dislike, causing the latter's death. His purpose is not to cause death but to save himself. Yet his case falls squarely within the first clause of Section 300 - he has undoubtedly caused death by doing an act with the intention of causing death-and is saved from being a murderer only by Section 100.

17. Illustration (a) to Section 106 of the Evidence Act shows that the intention with which a person does an act is generally to be gathered from the character and circumstances of the act It says that:

"When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him".

An inference drawn from the character and circumstances of the act is sufficient proof of intention. Thus, if a man uses a knife on another so as to pierce the latter's heart and kill him, the character and circumstances of his act would suggest that he intended to kill him, for, death is the natural and probable, nay, the well-nigh certain, result of such an act. But a surgeon doing this could readily rebut this inference by showing that he did this not with the intention of causing death but with the intention of curing the man of a dangerous disease. Nevertheless the surgeon would still have intentionally caused 'hurt, and can even be said to have intentionally caused bodily injury sufficient in the ordinary course of nature to cause death, and as we have already said, is saved from penal consequences only by reason of the exception in Section 88 of the Code.

23. In English law, in order to constitute the offence of attempt to murder, the specific intent to cause death is necessary though for the completed offence of murder the lesser mens rea of intent to cause grievous bodily harm suffices. What might be called the implied or constructive intent to cause death of clauses secondly, thirdly and fourthly of Section 300 of our Code is not enough. But, in Indian law, Section 307 of the Code makes it quite clear that the mental element described in any of the four clauses of Section 300 is sufficient and that it is not necessary that the act should have been done with the specific intention of causing death. This difference should not be overlooked. We should not have thought it necessary to voice this caution but that we find that in some Indian decisions and in some commentaries on the Code, English cases are cited to make out that the specific intent to kill is necessary without noticing that Section 307 of the Indian Penal Code lays down the law differently."