16. Now coming to the appeal against acquittal. There is merit in the plea of the appellant that despite direct evidence against the accused Kaouli Bhogta of having assaulted the informant with lathi, she has been exonerated of the charges by the trial Court without assigning any specific reasons for the same. This is not a case where the incidence took place on the spur of moment. Harvesting of the crop was in progress when the accused persons variously armed with dangerous weapon came there and commanded the informant from not harvesting the crop. Kaouli Bhogta was the member of the unlawful assembly and she also took part in the assault in prosecution of the common object of the assembly. It matters little, whether she wielded tangi, or lathi or she had no weapon in her hand. Just being member of the unlawful assembly was sufficient to fasten criminality by recourse to Section 149 of the IPC. The evidence of the injured and other witnesses regarding the role of Fauli Bhoktain shows that she was an active member of the unlawful assembly who assaulted the informant. Her acquittal for the offence charged was bad in law. 17. Now coming to the offence proved against the appellants/accused persons. In view of the evidence on record regarding assault causing grievous injury by dangerous weapon, conviction under Section 325 of the IPC is bad in law and it should have been under Section 326 of the IPC. 18. In order to bring home the charge under Section 307 of the IPC, an act will amount to an attempt to murder if the act is such that if it was not prevented or intercepted, it would be sufficient to cause the death of the victim. To constitute the offence, no injury need be caused to the victim. If in the course of the attempt, bodily injury is caused, the accused would be liable to enhanced punishment. To sustain conviction under Section 307 of the IPC, the intention to kill should be clearly proved by the circumstances like persistence and intensity of attack on vital part of the body. This Section clearly contemplates an act which is done with the intention of causing death, but, which fails to bring about the intended consequence on account of the intervention of a cause operating independently of the volition of the agent. Thus, the intention or knowledge of the accused must be such as is necessary to constitute murder.
