JUDGEMENT :- This is an appeal by an accused who has been convicted by the learned Sessions Judge, Satara of an offence under Section 326 of the Indian Penal Code and sentenced to two years' rigorous imprisonment and a fine of Rs. 500/-. 2. The facts of the prosecution case are that, at the material time viz. on the 17th of December 1968, one Balvant Shingate who was an agriculturist by profession was working as the Talathi of a village named Sartale about 6 or 7 miles away from another village named Marde in Satara District. The said Balvant was a close friend of one Sitaram Shingate, the brother of the accused, and the accused as well as his brother Sitaram had their lands in the village of Marde. It appears that Balvant had a brother named Waman with whom he had certain property disputes, and the said Waman was a friend of the accused. This is the background of the relations between the parties. On the morning of the 17th of December 1968 Sitaram had gone to Balvant's house as Balvant needed Sitaram's cart for the removal of groundnut creepers from one part of his field to another part of the same field, and Balvant and Sitaram therefore started to go, Sitaram's house. On the way they were joined by one Shankar Patil who was formerly a revenue Patil. The three of them went together to Sitaram's house and had tea there, and Shankar and Balvant then left the house of Sitaram. Shanker being ahead by 10 or 12 paces. Whilst they were walking in that order and were only about 50 paces from Sitaram's house according to the prosecution, the accused Ramchandra came from the north side where his own field was situated, on to the road by which Balvant was proceeding. The prosecution case is that when he came in front of Balvant he took out a knife from the pocket of his pyjama trouser and gave a blow with that knife on the left side of Balvant's stomach that Balvant then shouted, whereupon the accused gave another blow on the right side of Balvant's stomach, that on hearing the shouts Sitaram rushed to the soot from his house and caught hold of his brother the accused and lifted him up and threw him on the ground, in which process Sitaram himself sustained a slight injury. The prosecution story is that the accused then tried to strike Sitaram on his back but missed the blow and the blade of the knife came in contact with the around and got bent. Sitaram then snatched the knife from the hand of the accused and gave it to his servant Maruti who had also come up by then, but the knife was ultimately taken possession of by the injured man Balvant who kept it in a cloth bag which he had with himself. Balvant was then put in a bullock cart and was given medical attention and fortunately recovered to tell the story in the trial court. On these facts, the accused was charged with the offence of having attempted to commit the murder of the said Balvant under Section 307 of the Indian Penal Code and having caused injuries to the said Balvant in that process. The Sessions Judge accented the prosecution evidence and held that it was the accused who had inflicted the injuries in question on Balvant, but convicted him not of the offence under Section 307 the Indian Penal Code with which he had been charged but of the offence under Section 326 of the Penal Code and sentenced him as already stated above. It is from that order of conviction and sentence that the accused has preferred this appeal. 3. Three witnesses were examined in the trial court who, the prosecution alleged, were eye-witnesses to the incident, viz. the injured Balvant himself. Shankar Patil and the accused's brother Sitaram, the last named of whom was, however, allowed to be cross-examined as a hostile witness in the trial Court. Both Balvant and Shankar Patil have deposed to the prosecution story in much the same terms as those in which I have set the same out above and it is therefore, not necessary to repeat the same. No material discrepancies have been brought out as between the evidence of Balvant and the evidence of Shankar, nor is there any material discrepancy as between the evidence of each of them an given in the trial court and their respective statements to the police. No material discrepancies have been brought out as between the evidence of Balvant and the evidence of Shankar, nor is there any material discrepancy as between the evidence of each of them an given in the trial court and their respective statements to the police. What has been strenuously urged on behalf of the accused against accepting the evidence of the said Balvant is that he is a person who, according to the defence had written letters to Sitaram which would show that he wanted to kill his own brother. Waman, and it is contended that the word of a person of such bad character should got be accepted by the court. First and foremost, the letters in question which were relied upon by the defence do not in terms show that the said Balvant had made any such attempt. It is no doubt possible to spell out such an inference from the terms of the letters in question but that is not the only inference that can be drawn from them. Apart from that, it must be borne in mind that the fact that Balvant sustained the injuries at the time and place in question cannot be disputed at all; the fact that he sustained those injuries in the course of an incident between himself and the accused is also admitted by the accused himself in his statement under Section 342 of the Code of Criminal Procedure. The defence of the accused as appearing from that statement is only this viz. that it is Balvant who had a knife in his hand and tried to assault the accused and a scuffle ensued in the course of which Balvant himself accidentally sustained injuries. Having regard to the nature of those injuries, that theory of the defence is in my opinion so fantastic that it cannot be accepted. Moreover apart from its being inherently improbable, the medical evidence in the case also negatives the same. A specific question was put to Dr. K.B. Desai and his answer was "looking to the directions of the injuries. I do not agree that these injuries will result in that way. Injury No. 3 is possible in such a struggle." It maybe mentioned that injury No. 3 is a mere mark which the said doctor has himself stated is probably a continuation of the first injury mentioned by him. What Mr. I do not agree that these injuries will result in that way. Injury No. 3 is possible in such a struggle." It maybe mentioned that injury No. 3 is a mere mark which the said doctor has himself stated is probably a continuation of the first injury mentioned by him. What Mr. Bhonsale was however, relied upon is the next answer given by Dr. Desai, but in order to understand the correct import of that, answer both the question and the answer must be set out. They are as follows :- "Q. If in such a struggle, the knife comes in contact with sufficient force with the parts where the injuries are situated in the directions in which the injuries are caused, whether the injuries will result or not ?. A. If the weapon assumes the directions of the injuries which I have noted in the certificate and with sufficient force, then these injuries are possible." Now this question is based on the very assumption which the previous answer of Dr. Desai negatives. It is based on the assumption that the knife would strike with sufficient force in the very direction in which the injuries have been caused, whereas Dr. Desai has in previous answer clearly stated that it is because of the direction in which the injuries have been caused that he has deposed that they could not have been caused accidentally in a scuffle, as alleged by the defence. The second question which was put to Dr. Desai was, therefore, in my opinion, a perfectly meaningless question, and the answer given on the assumption involved in that question is, useless for the purpose of the present case. The answer that stands is the first answer of Dr. Desai referred to by me which clearly negatives the defence theory of the said Balvant having sustained the injuries accidentally in a scuffle. The answer that stands is the first answer of Dr. Desai referred to by me which clearly negatives the defence theory of the said Balvant having sustained the injuries accidentally in a scuffle. Once that theory is ruled out, there is no other way in which the injuries could have been sustained by Balvant except at the hands of the accused, and under those circumstances, even if one were to assume that in view of what Balvant had written in the letters addressed to Sitaram, he is a man of bad character and his evidence should be viewed with circumspection, the medical evidence in the case read together with the statement made by the accused under Section 342 of the Code of Criminal Procedure leaves no room for doubt that the version given by Balvant is true. 4. Moreover, that version is amply supported by witness Shankar Shingate who was just a few paces ahead of Balvant at the time of the incident. He has deposed that when he heard Balvant's cries he looked back and saw the accused assaulting Balvant with a knife and that Sitaram then came up and felled the accused on the ground and snatched away the knife from his hand and gave it to his servant Maruti. There is really nothing against the evidence given by Shankar Shingate, except one alleged discrepancy relied upon by Mr. Bhonsale and that is that whereas in his examination in chief he has deposed as stated above, in the course of cross-examination he has stated. "After I heard that sound I looked back. When I looked back I saw that there was a scuffle between Balvant and Ramchandra. I saw that Sitaram was coming running from towards his house ...... he held Ramchandra and felled him on the ground'..... I went to the spot" What Mr. Bhonsale was contended is that in the version given by him in cross examination he does not say having seen the accused striking Balvant with a knife. I saw that Sitaram was coming running from towards his house ...... he held Ramchandra and felled him on the ground'..... I went to the spot" What Mr. Bhonsale was contended is that in the version given by him in cross examination he does not say having seen the accused striking Balvant with a knife. That is undoubtedly true, but it must not be forgotten that in cross-examination the advocate concerned has a right to ask leading questions, and if leading question are put to a witness e.g. whether there was a scuffle between Balvant and Ramchandra and the witness answers in the affirmative, and he is further asked whether he saw Sitaram coming running from his house and he says 'yes' to that also, he would have really no opportunity of giving a full version of the incident. I do not think that the mere absence of reference to the stabbing in the cross-examination makes out any discrepancy, as such, as between the examination-in-chief of Shankar and his cross-examination. Moreover, the very grounds on which I have come to the conclusion that Balvant's evidence receives corroboration from the medical evidence read in the light of the statement of the accused under Section 342 of the Criminal Procedure Code, also lend support to the evidence of Shankar Shingate. I have, therefore, no hesitation in coming to the conclusion that the prosecution has proved the guilt of the accused beyond reasonable doubt. 5. The only other question that survives is whether the trial court was right in convicting the accused of the offence under Section 326 of the Indian Penal Code, when the actual charge framed against him was one under Section 307 of the Indian Penal Code. The offence under Section 326 of the Indian Penal Code cannot be said to be a minor offence in relation to the offence under S.307 of the Indian Penal Code having regard to the fact that the punishment provided by Section 326 of the Penal Code is not less than that provided by Section 307, and having regard also to the fact that the ingredients of the two offences are different in some respects. The conviction of the accused under Section 326 of the Penal Code by the trial Court cannot, therefore, be justified under the provisions of Section 238 of the Code of Criminal Procedure nor, in my opinion, can that conviction be buttressed by Section 535(1) of that Code which provides that a finding or sentence is not invalidated merely because no charge was framed unless a failure of justice has been occasioned thereby. Section 535(1) cannot be invoked in cases in which the ingredients of the offence charged and of the offence of which the accused has been found guilty are in any manner different, for the simple reason that failure of justice is bound to result in such cases. In my opinion, Section 535(1) applies only to cases in which either there Is no charge at all and the offence is not of a serious nature, or in which the offence charged is of such a nature that there is no difference between the ingredients of that offence and the ingredients of the offence of which the accuse has actually been convicted, or the offence charged comprises all the ingredients of the offence of which the accused has been found guilty and some more. I also do not accept the contention that the absence of a charge under Section 326 of the Indian Penal Code in the present case is a mere irregularity which can be cured under the provisions of Section 537(b) of the Code of Criminal Procedure for as a matter of plain language clause (b) of Section 537 does not deal with cases in which there is a complete omission to frame a charge in respect of the particular offence of which the accused has been convicted, but only deals with cases in which there is some omission of particulars "in the charge" in respect of the offence of which the accused has been found guilty. I have, therefore, come to the conclusion that the conviction of the accused under Section 326 of the Indian Penal Code by the trial court cannot be sustained and must be set aside. 6. That does not, however, mean that the accused must be acquitted in the present case. I have, therefore, come to the conclusion that the conviction of the accused under Section 326 of the Indian Penal Code by the trial court cannot be sustained and must be set aside. 6. That does not, however, mean that the accused must be acquitted in the present case. An appellate court has ample powers under Section 423(1)(b)(2) of the Code of Criminal Procedure to alter the finding whilst maintaining the sentence, so long as it does not convict the accused of an offence of an entirely different character. I, therefore, see no difficulty in the way of my convicting the accused in the present case of the offence under Section 307 of the Indian Penal Code and maintaining the sentence already passed upon by him by the trial court, if I come to the conclusion that the evidence on record proves all the ingredients of that offence. 7. It was sought to be contended by Mr. Bhonsale on behalf of the accused that, having regard to the evidence of Dr. Desai. I cannot hold that the prosecution has proved the accused to be guilty of the offence of attempting to murder the said Balvant under Section 307 of the Indian Penal Code. He has relied upon the fact that Dr. Desai has in terms stated that though in the first instance he thought the injuries on Balvant were serious, his opinion is that they were "not necessarily sufficient to endanger human life." and that though injuries 2 and 3 were in the vicinity of certain vital organs, injury 1 was not located on any vital part of the human anatomy. It is true that Dr. Desai has given that evidence in the trial court but, in my opinion, the argument of Mr. Bhonsale on this point is fallacious, in so far as it overlooks the fact that there maybe an attempt to commit murder even without inflicting any injury at all on the intended victim of the offence. It is true that Dr. Desai has given that evidence in the trial court but, in my opinion, the argument of Mr. Bhonsale on this point is fallacious, in so far as it overlooks the fact that there maybe an attempt to commit murder even without inflicting any injury at all on the intended victim of the offence. The most outstanding example of such a case is the case of Emperor v. Vasudev Gogate (34 Bom LR 571) : (AIR 1932 Bom 279) in which the accused fired two shots at Sir Ernest Hoston the then Acting Governor of Bombay, from a revolver at pointblank range but the shots failed to take effect either due to a defect in the ammunition or to the intervention of a leather wallet and folded currency notes in the Docket of the Governor. On those facts, a Division Bench of this Court held the accused guilty of the offence of attempting to murder Sir Ernest Hoston, though no injury whatsoever was caused to him by the act of the accused. What the prosecution has to prove in order to brine home an offence under Section 307 of the Indian Penal Code is (1) that the death of the victim was attempted; (2) that the death was attempted to be caused by or in consequence of the act of the accused: and (3) that such act was done either with the intention of causing death, or with the intention of causing such bodily injury as was sufficient in the ordinary course of nature to cause death. It is not necessary for me to refer to other ingredients which are not applicable to the facts of the present case. In my opinion, the evidence on record before me in this appeal leaves no room for doubt that the death of Balvant was attempted to be caused by the act of the accused of stabbing him with a huge knife in the abdomen. There can also be no doubt that that act of the accused, viz. the stabbing, was done with the intention of causing death, or in any event with the intention of causing such bodily injury as was sufficient in the ordinary course of nature to cause death but failed to achieve its object because of certain supervening circumstance to which I will presently refer. Mr. the stabbing, was done with the intention of causing death, or in any event with the intention of causing such bodily injury as was sufficient in the ordinary course of nature to cause death but failed to achieve its object because of certain supervening circumstance to which I will presently refer. Mr. Tipnis has pointed out the facts from which both these intentions can be easily inferred. Those facts are : (1) The nature of the weapon used viz. a Rampuri knife as big as 121/2" in length of which the blade alone was 51/2" long and 11/2" broad in the middle : (2) the manner in which the accused whipped out the knife from the pocket of his pyjama trouser and struck the two blows in quick succession on the unsuspecting Balvant : (3) the part of the body selected viz. lower part of the abdomen which is a vital part of the human anatomy; and (4) the nature of the injury inflicted which, but for the fact that it happened (to) go to slanting, would have inflicted irretrievable damage on the victim of the offence. The reasons why the accused did not succeed in accomplishing his intention to cause the death of Balvant or to cause him bodily injury sufficient to cause death was the prompt intervention of the accused's own brother Sitaram who came and bodily lifted the accused and threw him on the ground, and fortuitous circumstance that when the accused tried to wield a knife on Sitaram in order to get him out of the way, it missed Sitaram by causing him only a slight injury and the blade of the knife happened to come in contact with the ground and got bent. But for these two supervening circumstances. I, have no doubt that the accused would have been able to accomplish his object of killing Balvant or, at any rate, of causing him such injuries as would be sufficient to in the ordinary course of nature to cause death. I have, therefore, come to the conclusion that the evidence on record from which all these conclusions follows establishes beyond any reasonable doubt all the ingredients of the offence under Section 307 of the Penal Code of attempting to commit the murder of Balvant, with which the accused was charged in the trial court. I have, therefore, come to the conclusion that the evidence on record from which all these conclusions follows establishes beyond any reasonable doubt all the ingredients of the offence under Section 307 of the Penal Code of attempting to commit the murder of Balvant, with which the accused was charged in the trial court. I, therefore, convict him of that offence and maintain the sentence passed upon him by the trial court. 8. I cannot part with this case without observing that the sentence which the trial court has passed upon the accused in this case is inadequate, having regard to the seriousness of the offence. No notice of enhancement of sentence has, however, been directed to be issued on the accused at the time of the admission of this appeal and I do not think it necessary to direct such a notice to be issued at this stage as it would entail on adjournment of the hearing of this appeal. The accused must surrender to bail within a week. Order accordingly.