JUDGMENT (Oral) A.D. Mane, J. - The appellant-accused was tried for the offence punishable under Sections 307, 324 of the Indian Penal Code, out he has been convicted under Section 307 of the Indian Penal Code only, against which he has preferred this appeal challenging not only his conviction but sentence of rigorous imprisonment for five years. 2. It was the prosecution case that on March 6, 1986 complainant P.W. 1 Jagdish was in a bicycle shop at Kranti Chowk, Jalgaon and according to the prosecution, the accused who had strained relations with his brother Sachin came in front of the shop, uttered and abused Jagdish and called him out of the shop. Jagdish came out of the shop and went few steps ahead. Some exchange of words took place between the accused and Jagdish. Suddenly; it was the prosecution version that the accused took out the knife from his waist and gave three blows with knife, one on right side back chest, second on the right thigh and the third on the right thigh upper portion of Jagdish. At the relevant time one more person was with the accused, but he was unknown to Jagdish. In course of same incident P.W. 3 Prabhakar came running and when he tried to rescue Jagdish, it was further version of prosecution that he too got injured on right cheek by the knife of the accused, and thereafter, the accused ran away alongwith unknown person. 3. It may be stated that Jagdish was removed in a rickshaw of P.W. 2 Gorakh by P.W. 3 Prabhakar and Jagdish’s brother Sunil, via. City Police Station to Civil Hospital, where Jagdish was admitted as an indoor patient for treatment. On the basis of the complaint of Jagdish, which came to be recorded in the hospital, the accused was arrested on March 14, 1986. But no trace was made of his companion, who was unknown to Jagdish. 4. The nature of evidence adduced by the prosecution consists of oral testimonies of P.W.1 Jagdish, P.W. 2 Gorakhand P.W. 3 Prabhakar, besides the circumstantial evidence regarding the presence of blood stains on the clothes of Jagdish and the recovery of knife at the instance of the accused. The prosecution has, however, not examined the Doctor who has treated Jagdish, but his medical certificate Ex. 12 has been relied upon. The prosecution has, however, not examined the Doctor who has treated Jagdish, but his medical certificate Ex. 12 has been relied upon. It may however, be stated that at the trial neither P.W. 2 Gorakh, nor P.W. 3 Prabhakar supported the prosecution version in lending corroboration to the testimony of P.W. 1 Jagdish. These two witnesses have been cross-examined by the prosecution, as they turned hostile. The conviction of the accused is mainly based upon the solitary testimony of. P.W. 1 Jagdish coupled with the circumstantial evidence and the medical certificate Exh. 12. 5. Shri Loya, the learned Counsel appearing for the appellant has taken me through the entire evidence of the prosecution. It is his contention that undisputedly one unknown person had accompanied the accused, when according to P.W. 1 he came out of the bicycle shop. In this context emphasis has been laid on a circumstance, which has been fully established in the evidence of the prosecution, namely that at the very point of time when assault was made on Jagdish the electricity went off. Significantly, nowhere in his evidence Jaghish points out any motive towards the accused to inflict knife blows, on that evening. It was suggested but suggestion denied that Jagdish himself was indulged in sale of drugs alongwith the unknow person and in order to suppress his name he has named the accused as his assailant. Taking into account the circumstance that neither Gorakh-P.W. 2, nor Prabhakar -P.W. 3 lend support to Jagdish, the probability in the defence version cannot be ruled out, and therefore, according to the learned counsel, there arises a reasonable doubt in the prosecution 'and benefit of such doubt must be, given to the accused. 6. The other contention of Shri Loya, the learned Counsel for the appellant is that taking the evidence of Jagdish at the maximum coupled with the medical certificate Exh. 12, it can be said that the offence which the accused can be said to have committed is under Section 324 of the Indian Penal Code, and not under Section 307 of the Indian Penal Code. In this context, an emphasis is laid on the circumstance that the nature of injuries)sustained by Jagdish has not been proved by examining Doctor, who has treated Jagdish. 7. In this context, an emphasis is laid on the circumstance that the nature of injuries)sustained by Jagdish has not been proved by examining Doctor, who has treated Jagdish. 7. It is true that neither P.W. 2 Gorakh, nor PW 3 Prabhakar who were witnesses to the occurrence have supported the testimony of Jagdish. Next, it is also true that at the relevant point of time the evidence shows that electricity went off. According, to Jagdish, the accused and one unknown person had come and he was called out of the shop. It is, however, not possible to brush aside the testimony of Jagdish, who is an injured person when he attributed overt act to the accused as his assailant. He would be the last person to allow his real assailant to escape by naming the accused who was innocent. Merely because Jagdish was quite sure that unknown person who had accompanied the accused did not assault him that by itself, is no ground to reject that part of his testimony that the accused and none else has stabbed him. 8. It has been contended that according to the prosecution incident was witnessed by the mother, brother and three more boys in the cycle shop, but the prosecution has not been able to examine anyone of them. The testimony of Jagdish is not only cogent but appears to be reliable. His version is also consistent with the medical certificate in regard to number of blows inflicted on him with the weapon like knife. It is true that Jagdish has not been able to attribute any motive for assault on him by the accused, but according to him, his brother Sunil had on earlier day had assaulted the accused, and according to him, the accused when started abusing while Gaming infront of the cycle mart, threatened to see one after another, suggesting thereby that the accused intended to assault all the members including Sunil. 9. Where testimony of Jagdish himself appears to be cogent and reliable no adverse inference can be drawn merely because the prosecution has not examined either his mother, brother or one of the three boys who were present in the cycle shop. No adverse inference can also be drawn from non-examination of Sunil. The learned trial Judge, therefore, appears to be correct in placing implicit ,'reliance on the testimony of Jagdish. No adverse inference can also be drawn from non-examination of Sunil. The learned trial Judge, therefore, appears to be correct in placing implicit ,'reliance on the testimony of Jagdish. It was the accused and none else who had assaulted and injured the complainant-Jagdish. 10. I have already pointed out that the prosecution has not examined the Doctor, who has treated Jagdish, and who has issued the medical certificate Exh. 12. The medical certificate Exh. 12 would only prove that Jagdish has sustained four incised wounds as more particularly stated in the certificate, but there is no evidence to consider the nature and extent of the injuries received by Jagdish. Shri Loya, the learned Counsel appearing for the appellant, has rightly contended that the incised injuries as noted in the medical certificate Exh. 12 are in nature, simple injuries caused by dangerous weapon. In that event, according to him, the learned trial Judge was Dot correct in convicting the appellant under Section 307 of the Indian Penal Code, At the most, it has been submitted that the offence under Section 323 and at the maximum under Section 324 of the Indian Penal Code, can be said to have been made out. 11. Shri Wagh, the learned Additional Public Prosecutor, in view of the aforesaid set of evidence adduced by the prosecution fairly conceded that the offence with which the appellant can be convicted would be one punishable under Section 324 of the Indian Penal Code. 12. In that view of the matter, I have no hesitation to come to the conclusion that the evidence adduced by the prosecution is capable of disclosing an offence under Section 324 instead Section 307 of the Indian Penal Code. Accordingly, the conviction of the appellant is altered and the accused is acquitted under Section 307 of the. Indian Penal Code, but he is convicted under Section 324 of the Indian Penal Code. 13. On the question of sentence, Shri Loya, the learned Counsel appearing for the appellant has pointed out that the record shows that the accl1sed was arrested on March 14,1986. He was, however, released on bail on March 21, 1986. Later, it appears that he was taken in custody and he was in jail during the trial till he was released on February 22, 1988 on the basis of the bail granted by this Court in appeal. He was, however, released on bail on March 21, 1986. Later, it appears that he was taken in custody and he was in jail during the trial till he was released on February 22, 1988 on the basis of the bail granted by this Court in appeal. Therefore, the appellant has undergone sentence for a period for more than 11/2. years. It is in that situation, it is urged, that there is no point in sentencing the accused to any further term of imprisonment. Shri Wagh, the learned Additional Public Prosecutor does not dispute what transpires from the record of the case. In my opinion, having regard to the nature of offence, the sentence for the period already undergone would meet the ends of justice. 14. The appeal is thus partly allowed. The conviction and the sentence of the appellant under Section 307 of the Indian Penal Code is set aside instead he is convicted under Section 324 of the Indian Penal Code, and is sentenced to the period already undergone. Appeal partly allowed.