JUDGMENT P.N. Goel, J. 1. Rajesh and Suresh appellants, have been convicted and sentenced under section 307/34 of the IPC to undergo rigorous imprisonment for five years. Anokhey Lal, who was tried with the appellants has been acquitted. His plea of alibi has been accepted by the learned II Additional Sessions Judge, Etawah who tried the case. 2. Briefly stated the case of the prosecution was that Rajesh, Suresh and Anokhey Lal assaulted Shyam Lal (PW 1) Kahar by caste, with fists and kicks on October 23, 1974, at 12.30 hours in Nala Atrvind in Mohalla Gopal Bhawan in the town of Etawah. In the course of this marpit, at the instigation of Suresh, Rajesh took out a knife from the pocket of his pant and gave a blow to Shyam Lal. Shaym Lal was taken to his house by Kishan Lal (PW 3), Dularey and Santosh Kumar (PW 2). Shyam Lal got a report written by one Ram Saran. This report was lodged by Shyam Lal at Police Station Kotwali, Etawah at 12.55 hours. A little later at 1.10 p.m. Shyamlal was examined in the District Hospital, Etawah by Dr. K. S. Kapoor and following injury was found on his person :- "Incised wound bleeding and soft clot present. Direction from right to left horizontal-15 cm. x 3 cm. x bone deep 10th rib found cut superficially half portion lower part in tact on right of chest wall from ante-axillary line towards front and tailing towards left". 3. Dr. Kapoor characterised this injury as grievous. The appellants and Anokhey Lal did not admit to have assaulted Shyam Lal as alleged. Anokheylal further pleaded that at the time of occurrence he was at Farrukhabad. 4. The prosecution examined Shyam Lal, Santosh Kumar and Kishan Lal. Santosh Kumar is the sister's husband of Shyam Lal. Kishan Lal is nephew of Shaym Lal as is apparent from the statement of Santosh Kumar. Anokhey Lal examined Hari Datt Misra, Clerk and Ram Kishan Pathak, Head Clerk of the District Board, Farrukhabad. He produced two pass books of Savings Bank Account which were opened at Farrukhabad on October 23, 1974. These pass books were given as security along with the agreements which Anokhey Lal executed with the District Board, Farrukhabad on October 23, 1974. The trial Judge did dot believe the presence of Santosh Kumar. He, however, believed Shyam Lal and Kishan Lal. These pass books were given as security along with the agreements which Anokhey Lal executed with the District Board, Farrukhabad on October 23, 1974. The trial Judge did dot believe the presence of Santosh Kumar. He, however, believed Shyam Lal and Kishan Lal. He also believed the evidence of alibi adduced by Anokhey Lal. Consequently, Anokhey Lal was acquitted and the two appellants were convicted. Learned counsel for the parties have been heard and record has been examined with care. 5. The learned Trial Judge has given good reasons for not believing the presence of Santosh Kumar at the time of occurrence. Moreover, a perusal of the statements of Santosh Kumar and Shyam Lal indicates discrepancies on material points. These discrepancies also give impression that Santosh Kumar was not present at the time of occurrence. 6. Besides Krishan Lal being nephew of Shaym Lal as said above, he does not appear to be a reliable witness. Statements of Shyam Lal and Santosh Kumar clearly indicates that Kishan Lal used to live at the house of Shyam Lal and take food at his house. But Kishan Lal has stated that he is not nephew of Shyam Lal, that he is not related to Shyam Lal in any way, that he never lived at the house of Shyam Lal, that he never took food at the house of Shyam Lal, and that he used to live in a house in the market of railway station. It is evident that Kishan Lal has told a lie on all these points. Therefore, he is not a reliable witness and reliance cannot be placed safely on his testimony. In view of the above, there remains the solitary evidence of Shyam Lal. The occurrence took place in broad day light. It is natural to believe that Shyam Lal would implicate his real assailant. He would not spare his real assailant and implicate the appellants falsely. It appears from the statement of Shyam Lal that Rajesh and Suresh used to go to the house of Anokhey Lal to meet the latter's daughters Sita and Gita. Shyam Lal had a few days before the occurrence asked them not to do such acts in the locality. This motive has not been mentioned in the first information report. It appears from the statement of Shyam Lal that Rajesh and Suresh used to go to the house of Anokhey Lal to meet the latter's daughters Sita and Gita. Shyam Lal had a few days before the occurrence asked them not to do such acts in the locality. This motive has not been mentioned in the first information report. It appears that Shyam Lal who is a Kalian by caste forgot to mention this motive in the report because of the injury received. 7. There is positive evidence of Slhyam Lal that Rajesh took out a knife from the pocket of his pant and then gave a blow to him. Rajesh did not repeat the blow. Shyam Lal has no doubt stated that Rajesh did so at the instance of Suresh appellant. This fact is not admitted to the appellants. As there is solitary evidence of Shyam Lal, Suresh can-be given benefit of doubt. 8. In view of the above, the testimony of Shyam Lal can be accepted against Rajesh only. The question which next arises is whether Rajesh is guilty of the offence punishable under section 307 of the IPG. The prosecution did not examine Dr. K. S. Kapoor. There is nothing in the injury report to indicate that the injury in question was dangerous to life. It appears that Dr. K. S. Kapoor characterised the injury as grievous, because there was a, superficial cut in the 10th rib. Clause (7) of section 320 of the IPC lays down that if there is a fracture or dislocation of a bone, the injury is grievous. But in the present case, Dr. Kapoor did not mention that the bone of the tenth rib was fractured. He simply mentioned that there was a superficial cut in the tenth rib. A superficial cut obviously does not amount to fracture. Therefore, clause (7) of section 320 IPC is not applicable. In view of this, the nature of injury written by Dr. Kapoor does not give any benefit to the prosecution. In other words, the injury in question has to be considered a simple one. In this aspect of the matter, Rajesh cannot be held guilty of the offence punishable under section 307 of the IPO. He can only be held guilty of the offence punishable under section 324 of the IPC. 9. In other words, the injury in question has to be considered a simple one. In this aspect of the matter, Rajesh cannot be held guilty of the offence punishable under section 307 of the IPO. He can only be held guilty of the offence punishable under section 324 of the IPC. 9. The appellant's counsel pointed out that at the time of occurrence Rajesh was a young man of about 21 years and urged that he should not be sent to jail. 10. It will be noticed that Rajesh gave only one knife blow to Shyam Lal. He did not repeat the blow. He was certainly aged about 21 years at the time of occurrence. The occurrence took place about six years ago. There is nothing on record to indicate that Rajesh was convicted previously in any case. In these circumstances, it will not be unjust if Rajesh is: given benefit of section 4 of the U. P. First Offenders Probation Act, 1938. For what has been found above, appeal is partly allowed and is partly dismissed in this way, that the conviction and sentence of Suresh, appellant under section 307/34 of the IPO recorded by the II Additional Sessions Judge, Eta wah are set side. He is on bail. He need not surrender. His bail bonds are discharged. Conviction and sentence of Rajesh under section 307/34 of the IPC are also set aside. He is however, convicted under section 324 of the IPC. Instead of passing any sentence against him, he is ordered to be released under section 4 of the First Offenders Probation Act on his furnishing a bond in the sum of Rs. 500/- and to appear and receive sentence when called upon by this Court during a period of one year from this day and in the meantime to keep peace and be of good behaviour. He will furnish the bond in the court below within three months from this day. He is also on bail. After he has furnished the bond under section 4, his bail bonds shall stand discharged. A copy of this order will be sent to the court below as early as possible. 11. A copy of this order may be given to learned counsel for Rajesh, appellant on payment within 15 days. --- Appeal partly allowed.