Judgment Sanyal, J. The appellant, Habib Sk., along with six others, were tried by the learned Additional Sessions Judge, Birbhum, on the charges under sections 307/34 of the Indian Penal Code and 395 of the Indian Penal Code in Sessions Trial No. 3 of July, 1976. The appellant and another accused were also tried under section 324 of the Indian Penal Code. The learned Judge convicted the appellant under section 324 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for one year. The appellant was acquitted of the other charges. Other accused persons were acquitted of all the charges. 2. In this appeal, the appellant has challenged the said conviction and sentence. While admitting the appeal, this Court issued a Rule calling upon the appellant to show cause why he should not be convicted and sentenced under section 307 of the Indian Penal Code or such other or further orders made as to this Court may deem fit and proper. The appeal and the Rule were heard together. 3. The prosecution case is that on September 18, 1973, corresponding to 1st Aswin, 1380 B.S., P.W. 1, Musud Sk. was returning home from Rampurhat town by rickshaw, driven by P.W. 2, Alam Sk. P.W. 1 had a bag of atta with him and he had also a sum of Rs.200/-. At about 9 P.M., P.W. 1 reached the eastern bank of the canal near his village, Ekdala. At that time the appellant and others who accompanied him wrongfully restrained P.W. 1 on his way. The appellant assaulted P.W. 1 with a tang; causing severe bleeding injuries. An associate of the appellant also assaulted P.W. 1 by bhojali. P.W. 1, Musud recognised the appellant and he took away the tangi from him and, thereafter, became senseless. On hearing the alarm raised by P.W. 1 his wife Tarikjan Bibi, P.W. 4 along with Khalique, P.W. 5 hurriedly came to the place of occurrence. P.W. 4 also saw the appellant striking her husband with the tang; P.W. 4 found P.W. 1 lying unconscious with injuries and a tangi was also lying by the side of P.W. 1. Rickshaw puller, P.W. 2, Alam Sheikh, who witnessed the occurrence fled away towards the village and came there again with P.W. 3, Asanur Sk. The injured was taken to Rampurhat Hospital and he was examined by P.W. 8, Dr. Rickshaw puller, P.W. 2, Alam Sheikh, who witnessed the occurrence fled away towards the village and came there again with P.W. 3, Asanur Sk. The injured was taken to Rampurhat Hospital and he was examined by P.W. 8, Dr. H.C. Dey, who found some injuries on his person. P.W. 1 was admitted to the Hospital on September 18, 1973 at 10.15 P.M. P.W. 4 went to the thana, made a statement which was recorded by P.W. 10, Swapan Kumar Dey, as G.D. Entry, Ext. 3, on September 19, 1973 at 12.50 A.M. P.W. 9, Sambhu Nath Roy, was the Officer-in-Charge of Rampurhat Police Station at the relevant time. On September 19, 1973 at about 11.45 A.M. he received an injury report of P.W. 1 from the Medical Officer, Rampurhat Hospital. On perusal of the G.D. Entry, he drew up a formal first information report, Ext. 4, and started Rampurhat Police Station Case No. 21 dated September 19, 1973. P.W. 11, Sub-Inspector, Dipak Kumar Ghosh took up investigation of the case. He went to village, Ekdala on September 19, 1973 at 1.30 P.M. He seized tang; and blood stained clothes. After investigation, he submitted charge-sheet. 4. Defence of the appellant is that he is innocent and he has been falsely implicated out of grudge. Some litigations were pending between him and P.W. 1. 5. The learned Advocate for the appellant has contended that apart from the appellant there were six other accused in this case. He argued that the accused persons other than the appellant were co-villagers of P.W. 1. Witnesses of the prosecution, who are alleged to have witnessed the occurrence, failed to recognise any of the co-villagers while surprisingly enough they could recognise the appellant in a dark night. The contention of the learned Advocate for the appellant is that the appellant has been falsely implicated because of previous enmity. The learned Advocate for the appellant contends that in the circumstances recognition of the appellant as the assailant cannot at all be relied upon. P.W. 2 did not mention the name of the appellant before P.W. 3. The contention of the learned Advocate for the appellant is that the evidence would show that the appellant has been implicated out of previous enmity. 6. The witnesses to the occurrence are stated to be P.W. 1, Musud Sheikh, P.W. 2, Alam Sheikh alias Alim Sk. and P.W. 4, Tarikjan Bibi. The contention of the learned Advocate for the appellant is that the evidence would show that the appellant has been implicated out of previous enmity. 6. The witnesses to the occurrence are stated to be P.W. 1, Musud Sheikh, P.W. 2, Alam Sheikh alias Alim Sk. and P.W. 4, Tarikjan Bibi. P.W. 3, Asanur Sk., P.W. 5, Khalique Sk., P.W. 6, Badruzzoman and P.W. 7. Abdul Bari, are stated to have come to the place of occurrence on hearing shouts. In his evidence P.W. 1 has stated that on 1st day of Aswin, 1380 B.S. he was going back to his village, Ekdala from Rampurhat at about 8 P.M. in the rickshaw of P.W. 2. The evidence is that P.W. 1, had one bag of atta with him and he had also Rs.200/-. At about 8.45 or 9 P.M. Rickshaw of P.W. 1 reached the eastern bank of the canal where he came down as there was no road from there for taking the rickshaw to his village. P.W. 1 stated that the appellant aimed with a tangi along with some other persons came there and asked him to stop. In his evidence P.W. 1 states that the appellant struck him with tangi on his neck and other persons accompaying the appellant also assaulted him. P.W. 1 took the tangi from the appellant. Then he fell down and became senseless. P.W. 2, Alam Sheikh, supports P.W. 1 and states that the rickshaw was stopped near the canal. At that time the appellant asked P.W. 1 to stop and, thereafter, the appellant struck P.W. 1 more than once with tangi. In his evidence P.W. 2, has stated that the appellant was known to him from before and he had some acquaintance with him. The evidence of P.W. 2 is that he fled away towards Mallickpur and on the way he met P.W. 3 and stated everything to him about the incident. Evidence shows that P.W. 2, came back to the place with P.W. 3, and found P.W. 1, lying senseless. P.W. 2, also states that he found wife of Musud and another man by his side. P.W. 3, Asanur Sk. states that on 1st day of Aswin. 1380 at about 9 P.M. Alam Sk., narrated to him about some incident. P.W. 3 along with P.W. 2 went to the place and found P.W. 1, lying unconscious with bleeding injuries. P.W. 2, also states that he found wife of Musud and another man by his side. P.W. 3, Asanur Sk. states that on 1st day of Aswin. 1380 at about 9 P.M. Alam Sk., narrated to him about some incident. P.W. 3 along with P.W. 2 went to the place and found P.W. 1, lying unconscious with bleeding injuries. The evidence of P.W. 3, is that he found P.Ws. 4 and 5 and some other persons. P.W. 4, Tarikjan Bibi, says that she heard alarm raised by her husband in the canal area. She along with P.W. 5, immediately went there and found the appellant striking her husband with a tangi. She further states that she found her husband lying unconscious. In cross-examination, she has stated that she reached the bank of the canal and found her husband lying unconscious and breathing in pain. She has stated that after hearing the alarm raised by her husband she went to Khalique. She has further stated that when she reached near the place of occurrence she found the appellant striking P.W. 1, P.W. 5, Khalique, accompanied P.W. 4, to the place and he found P.W. 1, lying there. Evidence of P.W. 5, is that he did not find any other man there. Evidence shows that P.W. 7, Abdul Bari, heard hue and cry coming from the direction of the canal area. He called P.W. 6, Badruzzoman and, both of them went to the place and found P.W. 1, lying unconscious with bleeding injuries. Evidence is that P.W. 1 was taken to Rampurhat Hospital on September, 18, 1973 at 10.15 P.M. in the Rickshaw of P.W. 2, P.W. 8, examined P.W. 1 and found the following injuries:- 1. One cut injury on the back on right side 3" below lower border of scapula, 1" length X ¼" depth. No active bleeding present. 2. One cut injury on right eye brow on lateral aspect ½" length X ¼" depth. No active bleeding. 3. One transverse injury (cut wound) behind the neck in the middle-3½" length X ¼" depth. Active bleeding present. 4. One cut wound 2½" below No. 3. Wound starting from right lateral aspect of neck 5½" length X ¼" to ½" depth. The injury is skin deep at the back of neck for about 2". P.W. 8 has stated that the injuries might be caused by sharp cutting weapons. Injuries Nos. Active bleeding present. 4. One cut wound 2½" below No. 3. Wound starting from right lateral aspect of neck 5½" length X ¼" to ½" depth. The injury is skin deep at the back of neck for about 2". P.W. 8 has stated that the injuries might be caused by sharp cutting weapons. Injuries Nos. 3 and 4 might be caused by tangi and injuries Nos. 1 and 2 might be caused by bhojali. 7. It is in evidence that the tangi which was found lying by the side of P.W. 1 was taken by P.W. 5 to the house of P.W. 1 and the same was produced by Khalique before P.W. 11 who seized the same on September 19, 1973 under the seizure list, Ext. 1(2). P.W. 11 also seized the blood stained wearing apparel produced by P.W. 4. 8. It appears from the evidence on record that on September 18, 1973 P.Ws. 3, 4, 5, 6 and 7 came to the place on hearing shouts and they found P.W. 1 lying unconscious with bleeding injuries and a tangi also was found lying by his side P.W. 4, Tarikjan Bibi has stated that she witnessed the striking of the blow by the appellant but having regard to the evidence on record and the distance of the place where the incident occurred from the nearest habitation. It is extremely improbable for her to see the actual occurrence. P.W. 5, Khalique accompanied her to the place. The evidence of these witnesses, however, clearly shows that P.W. 1 was lying unconscious with bleeding injuries on his person. Main witnesses are thus P.Ws. 1 and 2. Both of them knew the appellant. Question is whether their evidence can be relied upon. The main argument of the learned Advocate for the appellant is that as regards P.W. 1 there was previous enmity. It is also contended that as other accused persons who were co-villagers could not be recognised it was not possible for P.Ws. 1 and 2 to recognise the appellant. In this connection, we shall have to consider the evidence adduced by the witnesses at the time of the trial. It appears that prosecution witnesses were contradicted with reference to their previous statements made before P.W. 11. The statements made before the Investigating Officer can only be used for purposes of contradiction. 1 and 2 to recognise the appellant. In this connection, we shall have to consider the evidence adduced by the witnesses at the time of the trial. It appears that prosecution witnesses were contradicted with reference to their previous statements made before P.W. 11. The statements made before the Investigating Officer can only be used for purposes of contradiction. P.W. 4 has stated that she filed a petition that the case of the accused persons other than the appellant has been compromised and, as such, she did not like to proceed with the case against these persons. This statement of P.W. 4, is very relevant. In the context of the present case it appears that the witnesses at the time of the trial for some reason or other went back from their previous statements and did not choose, to implicate anyone other than the appellant. In these circumstances, we have to consider the evidence of the witnesses very carefully and to see whether it was possible for P.Ws. 1 and 2 to recognise the appellant. In his evidence P.W. 1 has stated that the appellant struck him with a tangi on his neck and he took the tangi from him. The evidence shows that the appellant is known to P.W.1 and at the time of the occurrence litigations were going on between them. This previous enmity between the appellant and P.W. 1 may cut both ways. P.W. 1 is emphatic in his evidence that it was the appellant who struck him with tangi. P.W. 1 was also candid enough to admit that litigations were pending with the appellant during the time when the incident took place. P.W. 2, Alam Sk., Rickshaw puller, is an independent witness. The learned Judge has scrutinised the evidence and has thought it fit to place reliance upon P.W. 2. The evidence of P.W. 2 is very clear as regard the appellant striking P.W. 1 with a tangi. In his evidence P.W. 2 has stated that he has acquaintance with the appellant from before and he had no ill-feeling with him. P. W. 2 has stood the test of cross-examination very well and there is no reason to discard his evidence. The incident happened at an open place and though the night was dark, as the appellant was known to P.Ws. P. W. 2 has stood the test of cross-examination very well and there is no reason to discard his evidence. The incident happened at an open place and though the night was dark, as the appellant was known to P.Ws. 1 and 2 from before, it was not at all difficult for them to recognise him. The evidence shows that it was the appellant who struck P.W. 1 with tangi. The evidence of P.W. 8, Dr. H.C. Dey would clearly show that injuries Nos. 3 and 4 could be caused by tangi. P.W. 8 in his evidence has stated that on examination of the injuries he is definitely of opinion that injuries Nos. 1 and 2 were caused by one type of weapon and injuries Nos. 3 and 4 were caused by different types of weapons. The evidence is that P.W. 1 was struck by tangi and bhojali. According to P.W. 8 injuries Nos. 1 and 2 might be caused by bhojali and injuries Nos. 3 and 4 might be caused by tangi. 9. The contentions raised by the learned Advocate for the appellant against the impugned order of conviction and sentence have no force and the appeal should be dismissed. 10. Coming now to the Rule issued by this Court, being Criminal Revision No. 1506 of 1976, it appears that even if we hold that the learned Judge was not justified in acquitting the accused appellant of the charge under section 307 of the Indian Penal Code, the finding of the said acquittal cannot be converted into one of conviction in the instant Revision. Having regard to the nature of the injuries sustained by P.W. 1 and the circumstances in which the injuries were caused by the appellant it could have been urged that ingredients of the offence under section 307 of the Indian Penal Code might have been established. In that case, there would be necessity to set aside the conviction and send the case back for retrial. No useful purpose would be served by ordering a retrial after the lapse of so many years. Therefore, the Rule should be discharged. In the result, the appeal, is dismissed and the Rule is discharged. The impugned order of conviction and sentence passed by the learned Judge is upheld. The appellant will surrender to his bail bond and serve out the remainder of the sentence. Mukherjee, J.: I agree.