JUDGMENT - R.L. AGGARWAL, J.:---The appellant-accused was tried for the offence punishable under section 307 I.P.C. in Sessions Case No. 117 of 1975 by the learned Sessions Judge, Parbhani, on the allegations that he, on or about 26th May, 1975 at about noon time at Charthana Village in Taluka Jintoor, District Parbhani, stabbed and assaulted with Katti, a weapon like dagger, his brother Chapa Pura Jadhav (P.W. 1) with such intention or knowledge and under such circumstances that if by that act he had caused the death of Chapa, he would have been guilty of murder, and that he caused hurt to Chapa by the said act. The appellant has been convicted under section 307 I.P.C. and sentenced to suffer rigorous imprisonment for five years. 2. The prosecution case, briefly stated, is that the appellant and Chapa are brothers. They are residents of village Raikheda. Their elder brother named Haridas died about 20 years back leaving behind him his widow Kasabai. She had inherited about 30 acres of land from her husband Haridas. Initially she cultivated the land with the help of her son-in-law, but later on she found it difficult and inconvenient to cultivate the same and, therefore, she decided to dispose it of. Kasabai, in the first place offered to sell the land to the appellant, but he declined to purchase the same. She then approached Chapa for this purpose. Chapa along with Amarsingh, the brother of the wife of the appellant, decided to purchase Kasabais land jointly. On 12th July, 1975, Isar Pavti was executed by Kasabai in the names of Shivram son of Amarsingh and Chapa and she was paid earnest money by both of them. The sale-deed was to be executed on 27th May, 1975. However, Kasabai executed the sale-deed in respect of half the land in the name of Shivram son of Amarsingh. The sale-deed in favour of Chapa could not be executed as he was in the hospital. According to the prosecution, about two months before the agreement, for sale meeting of the panchas was held since the appellant had changed his mind and desired to purchase the land. Chapa, it appears, told the appellant that he could purchase his share. The appellant agreed to do so but again change his mind. According to the prosecution, about two months before the agreement, for sale meeting of the panchas was held since the appellant had changed his mind and desired to purchase the land. Chapa, it appears, told the appellant that he could purchase his share. The appellant agreed to do so but again change his mind. According to the prosecution, the appellant did not want Chapa to purchase the land nor did he want to purchase the same himself and threatened to kill Chapa if he did so. 3. On the date of the incident, i.e. on 26th May, 1975, Chapa along with Mathurabai (P.W. 5), left from village Raikheda to go to the weekly bazaar at Charthana at about 10 a.m. Chapa took paddy for milling and go it milled and took it to the bazaar and kept the bundle to secure a place for himself. He told Mathurabai to keep a watch on his bundle. Chapa along with Wala (P.W. 2) also a resident of Raikheda, went to purchase cloth from the shop of Yakubrniya (P.W. 4) at about 12 noon. After purchasing the cloth, Chapa and Wala were returning to the bazaar when they met Dagdu (P.W. 7), who was sitting near the shop on an open ground near Dargah. Dagdu invited them from smoking bidi. This is what transpired in the words of Chapa :- "Dagdu was burning the bidi. I was facing to east. The accused came from behind. The accused gave a blow with dagger on my right upper arm. I fell on back side. I saw the accused. He was holding the dagger. I caught his chin and said. Dada, why you have assaulted me when I gave up my right to purchase the land. The accused gave the second blow with the dagger on my abdomen. I took out my turban and tied it on my abdomen to stop the bleeding. The accused took out his shawl, wrapped it on my chest and lifted me on his back. The accused said, Do you want to purchase the land? I will throw you in the well. Wala and Dagdu were there. Wala snatched the dagger from the hand of the accused and threw it there. The accused carried me on his back for about 100 paces. Many people collected. Mathurabai, Dashrath came. The accused kept me on the ground. Mathurabai asked the accused what happened. I will throw you in the well. Wala and Dagdu were there. Wala snatched the dagger from the hand of the accused and threw it there. The accused carried me on his back for about 100 paces. Many people collected. Mathurabai, Dashrath came. The accused kept me on the ground. Mathurabai asked the accused what happened. The accused said, I have assaulted." This incident was witnessed by Wala (P.W. 2), Dhondiba (P.W. 3) Sk. Ismail (P.W. 6), and Dagdu (P.W. 7). 4. After Chapa was kept on the ground, the appellant saw a Government jeep coming and on seeing that he made good his escape. Thereafter Chapa was removed in the Jeep to Jintoor Police Station where his complaint Ex. 7, was recorded by Police Constable Gopal More (P.W. 12) P.W. 12 arranged to send Chapa for medical examination and also requested Taluka Magistrate to record his dying declaration. The appellant was arrested at 5 p.m. on the same day. The dagger, Article 5, was recovered from the scene of offence and was found to have been stained with blood. 5. Chapa was examined by Dr. Jhade (P.W. 11), at 2-10 p.m. He noticed that Chapa had three incised wounds. Dr. Jhade thought that injury No. 1 might be grievous. He, therefore, referred the case to the Civil Hospital. Parbhani. He issued the medical certificate, Ex. 22. Subsequently, at about 8-45 p.m. Dr. Umrikar (P.W. 15) examined Chapa. On completion of the investigation, charge-sheet was submitted against the appellant and in due course he was committed to the Court of Sessions to stand his trial for the said offence. 6. The appellant pleaded not guilty to the charge. He admitted that Kasabai had made an offer to him to purchase the land, but he declined the offer. He denied knowledge about Isar Pavti. He denied that there was a panchayat and he first agreed to purchase the land and then changed his mind and gave threat that neither he would purchase the land nor allow Chapa to purchase it and kill him. He, however, admitted that he had gone to the place of incident where Chapa, Wala and Dagdu were sitting for smoking Bidi, and that the dagger, Article 5, was with him. He, however, admitted that he had gone to the place of incident where Chapa, Wala and Dagdu were sitting for smoking Bidi, and that the dagger, Article 5, was with him. According to him, he gave only one blow on the arm of Chapa, but Chapa tried to get up and in that the blow struck on Chapas abdomen. He denied that he had given a blow with the dagger on the abdomen of Chapa. According to him, he had given only one blow. He further admitted that Wala snatched the dagger from him and threw it on the spot. According to him, he tied his turban on the wound of Chapas upper arm and on his abdomen. The bleeding did not stop and therefore he tied his shawl and carried Chapa on his back towards the Bus Stop. He further admitted that he met Mathurbai and confessed before her that he had assaulted Chapa. He contended that 8 days before the incident, panchayat was held where Amarsingh said that he and Chapa would purchase the land, but the appellant told them that three of them would purchase the land in equal shares, but they did not agree. He assaulted Chapa with dagger to make him agree that he (the appellant), Chapa and Amarsingh should purchase the land equally. 7. The learned trial Judge, on consideration of the oral and documentary evidence and the say of the appellant, held that the prosecution succeeded in establishing the charge under section 307 I.P.C. and accordingly he convicted and sentenced the appellant as aforesaid. Being aggrieved of the said conviction and sentence, the appellant has come in appeal. 8. On behalf of the appellant, the principal contention raised is that on the basis of the evidence and the subsequent conduct of the appellant, the injury which is said to the fatal must have taken place accidently and the medical evidence, as it stands, will not take the offence beyond section 326 I.P.C. In other words, according to the learned Counsel for the appellant, the conviction under section 307 I.P.C. is not sustainable on the facts and circumstances of the present case. In this connection learned Counsel took us through the evidence of (P.Ws. 1, 2, 3, 5, 6, and 7). Now in, so far as the evidence of the Chapa (P.W. 1), is concerned he confirms the prosecution story. In this connection learned Counsel took us through the evidence of (P.Ws. 1, 2, 3, 5, 6, and 7). Now in, so far as the evidence of the Chapa (P.W. 1), is concerned he confirms the prosecution story. In cross-examination, he could not be shaken about the number of injuries sustained by him. He stoutly refuted the suggestion that the appellant gave only single blow on his shoulder and that the weapon slipped and struck on his abdomen. He further denied that when the appellant gave him blow he tried to get up and accidently the weapon struck on his abdomen. His evidence was assailed on the ground that the witness was bent upon to implicate the appellant as much as he can because he has made certain improvements in his evidence before the Court. In his statement to the police, he did not mention about the threat that the appellant would throw him in the well since he wanted to purchase the land. He had stated before the police that the appellant had tied his turban on his abdomen to stop the bleeding and he carried him to the Bus Stand. But in the Court he stated he had tied his own turban. These discrepancies are of minor nature. The core of the prosecution case is the assault on Chapa with dagger, Article 5, and the number of blows given. On consideration of the evidence of Chapa, we are satisfied that with regard to the main incident he has given his evidence in a straight forward and convincing manner. Moreover, his evidence is corroborated by other eye-witnesses and the medical evidence. We have, therefore, no hesitation in accepting his evidence. 9. Chapa is fully supported by (P.W. 6), S. Ismail. He was a stranger to the appellant, Chapa and other witnesses. He was passing by the side of the Dargah when he witnessed the incident. He in unmistakable terms testified that the appellant gave two blows. His evidence is of truthful witness who has deposed to facts as seen by him 10. Although Wala (P.W. 2) Dhondiba Kowala (P.W. 3) and Dagdu (P.W. 7) in their examination-in-chief confirmed the prosecution case, but Wala (P.W. 2) and Dagdu (P.W. 7), in their cross-examination seemed to favour the defence by saying that both the wounds were caused by a single blow. Although Wala (P.W. 2) Dhondiba Kowala (P.W. 3) and Dagdu (P.W. 7) in their examination-in-chief confirmed the prosecution case, but Wala (P.W. 2) and Dagdu (P.W. 7), in their cross-examination seemed to favour the defence by saying that both the wounds were caused by a single blow. In the light of the clear, cogent and convicing evidence of (P.W. 1) and (P.W. 6), we are not inclined to accept the evidence of P.Ws. 2, 3 and 7 to the extent to which they say that both the injuries were caused by a single blow. As regards the rest of their evidence, we are inclined to accept the same as reliable. 11. Coming to the medical evidence, Dr. Jhade (P.W. 11), had issued certificate of injuries, Ex. 22. In view of the fact that he found that the injury on the lower chest might be grievous, he had referred the injured to the Civil Hospital, Parbhani. In his cross-examination, he stated that it was possible that if a blow was given on arm and the victim tried to get up, the weapon may struck on the abdomen and cause injury on the abdomen. In our opinion, the evidence of Dr. Jhade is not of much assistance. 12. The evidence of Dr. Dhumale (P.W. 14), is also not material as he had admitted the injured and informed the Surgeon on duty i.e. Dr. Umrikar (P.W. 15). Dr. Umrikar on examining the injured found that operation was essential and therefore he performed the operation on the abdomen where was an incised wound oblique in direction from outward to inward in a right hypochondrium region measuring 2 x ¼" x 1". On opening that wound, Dr. Umrikar found that the peritoneum was torn and liver was injured. There was blood in abdominal cavity. There was no other internal injury. He had also carried out the clinical examination and found the following six injuries: "(1) Semi-lunar incised wound right arm near elbow on posterior aspect, 1" x ½" x ½" muscle cut. (2) Oblique incised wound right middle finger middle phalan x ½" x ¼". (3) Transverse incised wound at base of ring finger (right) ½" x ¼" x ¼". (4) Lenian incised wound at right mid axillary line 1" x ½" x 1". (5) Abdominal wound oblique incised would 2" x ¼" x 1". (6) Contused abrasion oblique 3" x ½" umbilical region". (3) Transverse incised wound at base of ring finger (right) ½" x ¼" x ¼". (4) Lenian incised wound at right mid axillary line 1" x ½" x 1". (5) Abdominal wound oblique incised would 2" x ¼" x 1". (6) Contused abrasion oblique 3" x ½" umbilical region". According to him, the incised wounds were possible by dagger, Article 5. Regarding injuries Nos. 4 and 5, he deposed as follows :- "Injuries Nos. 4 and 5 were grievous injuries and dangerous to life. Had the patient not been treated in time, the injuries would have been fatal in the ordinary course.... Injuries Nos. 4 and 5 were caused by separate strokes." During cross-examination, he stated that injury No. 4 was responsible for liver injury. Injury to the liver was small in dimension. The injury to the liver was on the upper outer surface of the liver. The blood found in the abdominal cavity was not due to cut of muscle and peritoneum. He agreed that sometimes recovery occurs after slight wounds or laceration in the liver, if treated, and stated that it is unlikely that in the ordinary course laceration or wound to the liver would be cured without treatment. Major portion of the liver was injured sufficient to cause bleeding. The wound on the liver was not liner. He did not agree that much force was not required for causing injuries Nos. 4. and 5 i.e. injuries to hypochondrium region and right lateral aspect of the chest. 13. Relying upon the statement of Dr. Umrikar that injuries Nos. 4 and 5 were grievous and dangerous to life. It was strenuously urged on behalf of the appellant that the present case would be covered by section 320(8) I.P.C. namely, that the hurt caused in the present case, according to the medical evidence, endangers life and, therefore, the conviction of the appellant under section 307 I.P.C. is illegal. In support of this contention, learned Counsel referred to the test at page 156 of Medical Jurisprudence by Dr. R.M. Jhala, 3rd edition. The learned author after referring to the three classes or injuries, gives examples of hurts endangering life. One of the examples is "any hurt which is likely to cause death e.g. stab on the abdomen or head or vital part". R.M. Jhala, 3rd edition. The learned author after referring to the three classes or injuries, gives examples of hurts endangering life. One of the examples is "any hurt which is likely to cause death e.g. stab on the abdomen or head or vital part". He further goes on to say :--- "Sometimes the words fatal injury are used, but in a medico-legal case this expression should rather be avoided. It does not enlighten us about the nature of the injury beyond telling us that the injury has actually caused death. Even if the injury actually caused death, for the purpose of criminal law, it is necessary to know whether the injury is one that merely endangers life or the injury was one which was likely to cause death or the injury was one which was sufficient in the ordinary course of nature of cause death. Medical witnesses must always describe the injuries as stated above in addition to describing the injury in the medical sense. For example whether the injury is an abrasion or a contusion or a lacersted wound or a burn or a cold in addition to giving the medical description. The witness must say whether the injury was such as to endanger life or whether the injury was likely to cause death or whether the injury was sufficient in the ordinary course of nature to cause death. The medical witness should also give his opinion as to the cumulative effect of the injury caused to a person. In other words, whether the cumulative effect of the injury was such as to endanger the life or whether the cumulative effect was likely to cause death or whether the cumulative effect sufficient in the ordinary course of nature to cause death." 14. In the present case, Dr. Umrikar, after having stated that injuries Nos. 4 and 5 were grievous injuries and dangerous to life, proceeded to opine that had the patient not been fatal in the ordinary course learned Counsel laid great emphasis on the words grievous injuries and dangerous to life and "fatal" used by Dr. Umrikar. It is true Dr. Umrikar has not used the statutory expression as continued in section 299 and 300 I.P.C. which is normally expected of a medical witness. If we are to give ordinary meaning to the word "fatal", it means ending in death. Umrikar. It is true Dr. Umrikar has not used the statutory expression as continued in section 299 and 300 I.P.C. which is normally expected of a medical witness. If we are to give ordinary meaning to the word "fatal", it means ending in death. Stedmans Medical Dictionary, Third Unabridged Lawyers, Edition gives the meaning of the word "fatal" as causing death. Therefore, giving the word "fatal" its ordinary and medical meaning, it is apparent that Dr. Umrikar has opined that had the patient not been treated in time, the injuries could have caused death in the ordinary course. In our view, there is no ambiguity or doubt in the opinion expressed by Dr. Umrikar when we read his opinion as a whole and not in a distorted fashion or by reading a part of it and ignoring the other part. 15. Reliance was placed on a Full Bench decision of this Court reported in (Bombay Government v. Abdul, Wahab)1, A.I.R. 1946 Bom. 38, which lays down the distinction between sections 299 and 320 I.P.C. We are in respectful agreement with the view that the line between culpable homicide not amounting to murder and grievous hurt is a very thin and subtle one. In the one case the injuries must be such as are likely to cause death; in the other, injuries must be such as endanger life. 16. Reliance was also placed on an unreported judgment of the Supreme Court in the case of (Jai Narain Mishra others v. State of Bihar)2, Cri. Appeal No. 17 of 1669. 3-11-71 S.C. In that case, the conviction under section 307 read with section 109 I.P.C. was converted into one under section 324 read with section 109 I.P.C. According to the Doctor in that case, the wound in the chest was of a grievous nature and the injury was dangerous to life. Their Lordship are of the view that the fourth injury caused by Suraj, though endangering life, could not be deemed to be an injury which would have necessarily caused death but for timely medical aid. In the present case, the opinion of Dr. Umrikar does not rest merely that the injuries were dangerous to life but he had clearly mentioned that had the patient not been treated in time, the injuries could have caused death in the ordinary course. 17. In the present case, the opinion of Dr. Umrikar does not rest merely that the injuries were dangerous to life but he had clearly mentioned that had the patient not been treated in time, the injuries could have caused death in the ordinary course. 17. Reference was also made to another decision of the Supreme Court in the case of (Pandurang v. State of Hyderabad)3, A.I.R. 1955 S.C. 216 and reliance was placed on paragraph 36 of the judgment at page 223. In our opinion, that case is of no assistance as it was decided on the facts of that case. 18. To sum up, the testimony of Chapa (P.W. 1) and Sk. Ismail (P.W. 6) that the appellant gave two blows and one of the blows was given on the abdomen a vital part is trustworthy. They lend corroboration to each other. This is further supported by medical evidence. The defence story that blow was delivered on the arm alone and no separate blow was struck on the abdomen and that the injury on the abdomen was caused on account of getting up on receiving the first blow is against the weight of the prosecution evidence. We are satisfied that the defence set up is false. The opinion given by Dr. Umrikar on assessment of the injuries establishes that injuries Nos. 4 and 5 would have caused death in the ordinary course. This opinion is firm. The injuries suffered were not such as to endanger life within the meaning of section 320 I.P.C. but were such as were likely to cause death as contemplated in section 299 I.P.C. in the light of the ratio of the Full Bench decision of this Court cited above. We, therefore, uphold the conviction of the appellant under section 307 I.P.C. 20. It was next argued on behalf of the appellant that in passing the sentence, the trial Court has failed to observe the mandatory provisions of section 235(2) of the new Cr.P.C. In support of this, the learned Counsel referred to the decision of the Supreme Court in the case of (Santa Singh v. State of Punjab)4, A.I.R. 1976 S.C. 2386. It was next argued on behalf of the appellant that in passing the sentence, the trial Court has failed to observe the mandatory provisions of section 235(2) of the new Cr.P.C. In support of this, the learned Counsel referred to the decision of the Supreme Court in the case of (Santa Singh v. State of Punjab)4, A.I.R. 1976 S.C. 2386. In that case, the Supreme Court has interpreted section 235(2) by two separate concurring judgments and has held that the object of section 235 is to split up the sessions trial or the warrant trial into two integral parts-- (i) the stage which culminates in the passing of the judgment of conviction or acquittal, and (ii) the stage which on conviction results in imposition of sentence on the accused. Both these parts are absolutely fundamental and non-compliance with any of the provisions would undoubtedly vitiate the final order passed by the Court. In the present case, we have examined the judgment as well as the roznama and it appears that the attention of the learned trial Judge was not specifically drawn to the provisions of section 235(2) and he seems to have overlooked the same. There is nothing to show that a hearing was given to the appellant to place before the Court such material as he may desire on the question of sentence. In these circumstances, the matter requires to be remanded to the trial Court only on the question of sentence as contemplated under section 235(2) of the Cr.P.C., 1973. 21. In the result, we confirm the conviction of the appellant under section 307 I.P.C. but set aside the order of sentence passed by the lower Court against the appellant and remand the matter to the trial Court on the question of sentence in terms of the provisions of section 235(2) of the Cr.P.C. 1973, and in the light of the judgment of Supreme Court reported in Santa Singh v. State of Punjab, referred to above and for disposal according to law. 22. We are informed by the learned Counsel for the appellant that the appellant was on bail during the trial. We accordingly direct that the appellant be released on bail on the same terms as in the trial Court. However, fresh bonds to be executed. The appeal is disposed of accordingly. -----