ORDER (ORAL) Ashok Agarwal, J. - An order of conviction under Section 307 of the Indian Penal Code and a sentence of rigorous imprisonment for five years and a fine of Rs. 500/-, in default further rigorous imprisonment for three months is impugned in the present appeal. At the trial, in Sessions Case No. 102 of 1985 of the Court of Assistant Sessions Judge, Thane, the appellant-original accused was charged under Section 307 and in the alternative under Section 326 of the Indian Penal Code for having, on the 27th of September, 1984, at about 12.30 noon, at village Sakroli Taluka Bhiwandi, District Thane, near the house of the accused, assaulted P.W. 1 Mukund Pundalik Shelar on his stomach with a knife. The first informant in respect of the assault was the injured him lf. His First Information Report is at Exhibit-14. The incident in question is said to have been witnessed by P.W. 2 Gopal Shelar and P.W. 3 Manisha, a cousin and sister, respectively, of Mukund. Pending the trial, Manisha was married and after marriage she got renamed as "Wanita Bhoir". After the assault, Mukund was removed to his house and was, thereafter, taken by Baliram a brother of Mukund, and Gopal to the Bhiwandi Municipal Dispensary and, thereafter, to the Civil Hospital, Thane. At the hospital, he was treated by P.W. 7 Dr. Bhimrao Brahmane who issued a medical certificate (Exhibit-25) in respect of the injury sustained by Mukund. 2. At the time of the above incident, P.W. 6 Ragho Bhoir was a Police Sub Inspector attached to the Bhiwandi City Police Station. He received a telephone message from the Bhiwandi Municipal Dispensary in respect of the assault in question. He proceeded to the dispensary and found that Mukund was being treated by a doctor. He found Mukund conscious. He inquired with Mukund and recorded his complaint (Exhibit14). Bhoir, thereafter, sent the complaint to the Ganesh Purl Police Station where P.W. 5 Jagannath Shinde, a Police Sub Inspector attached to that police station received the complaint and registered offence and started investigation. On the next day i.e. on the 28th of September, 1984 Police Sub Inspector Shinde went to the place of offence and drew a Panchanama (Exhibit-7). The said Panchanama recites that the spot was shown by P. W. 3 Manish. On the next day i.e. on the 28th of September, 1984 Police Sub Inspector Shinde went to the place of offence and drew a Panchanama (Exhibit-7). The said Panchanama recites that the spot was shown by P. W. 3 Manish. On the very day, Subhadrabai, a sister of Mukund, produced the bloodstained clothes of Mukund and the same were attached under Panchanama (Exhibit-8). On 28th of September, 1984, P.S.I. Shinde recorded the statement of P.W. 3 Manisha. On the 30th of September, 1984 he recorded the statement of P.W. 2 Gopal. On 1st of October, 1984 the accused came and voluntarily surrendered at the Police Station. P.S.I. Shinde arrested him. At that time the accused produced a knife (Article 1) and the same was attached under panchanama (Exhibit- 8). On 30th of September, 1984 P.S.I. Shinde recorded a supplementary statement of Mukund. Attached clothes and the knife were sent to the Chemical Analyser. The report of the Chemical Analyser (Exhibit-21) shows that the clothes of Mukund as also the knife were stained with human blood of 'B' Group. The Chemical Analyser's report (Exhibit-22) shows that the Pant (Article 22) and the Banian (Article 23) of Mukund had cut marks which were consistent with the use of sharp edged weapon, such as the knife (Article 1). After completing the investigation, P.S.I. Shinde submitted a charge sheet against the accused. 3. On a perusal of the above evidence, which was adduced before the trial Court, the learned 6th Additional Sessions Judge, Thane was pleased to record the impugned order of conviction and sentence against the accused. The same is impugned in the present appeal. 4. I have, with the assistance of Miss. Anjali Desai, the learned Advocate appearing in support of the appeal and Shri N.M. Kachare, the learned Public Prosecutor, gone through the entire evidence on record. I have heard both the Counsel in support of their respective claims. Miss Desai has submitted that the incident in question is alleged to have taken place in a crowded locality. There are several houses located in the close vicinity which include the houses-of the accused as also Mukund, whose houses are also located close to each other. The incident has taken place at about 12.30 noon, when many agriculturists had returned to the village from their fields for having their meals. There are several houses located in the close vicinity which include the houses-of the accused as also Mukund, whose houses are also located close to each other. The incident has taken place at about 12.30 noon, when many agriculturists had returned to the village from their fields for having their meals. Hence, it is natural that the incident must have been witnessed by several persons. Despite this, the prosecution has examined only two witnesses who are close relations of Mukund. Though independent witnesses were available, the prosecution has failed to examine them. Miss Desai next pointed out that as per the version of Gopal, immediately after the incident the 'injured was removed to his house amongst others by his father Pundalik and brother Baliram. Despite this, they have not been examined. She has further pointed out that the statement of Wanita was recorded on 28th September, 1984 and that of Gopal on the 30th of September, 1984. No reliance could be placed on the aforesaid witnesses since they had failed to disclose the name of the assailant immediately after the incident In my view, the non-examination of the above witnesses cannot destroy the case of the prosecution. It is not necessary to examine each and every person whom has witnessed the incident. The question is whether the witnesses who have been examined can be believed when they depose to the incident in question. As regards the non-examination of independent witnesses, it is true that it has been brought on record that there are several houses around the place of the incident However, the evidence on record shows that the incident in question had taken place on a spur of the movement The incident must have lasted for a brief while and there is nothing on record to indicate that the incident was witnessed by several independent witnesses. Hence, in the absence of anything more, it is not possible to discard the prosecution case on this ground. 5. Miss Desai has pointed out certain diserepancies in the evidence of Mukund, Manisha and Gopal and submitted that they do not fully corroborate each other. As per the version of Mukund, Manisha was in the field till 11.00 or 11.30 a.m. and, thereafter, she proceeded to their house. 5. Miss Desai has pointed out certain diserepancies in the evidence of Mukund, Manisha and Gopal and submitted that they do not fully corroborate each other. As per the version of Mukund, Manisha was in the field till 11.00 or 11.30 a.m. and, thereafter, she proceeded to their house. Mukund himself started for his house from his field at about 11.30 a.m. and the incident in question took place at about 12.00 to 12.30 noon. As against this, Manisha has stated that she returned home at about 10.45 or 11.00a.m. She was preparing food when she heard hue and cry. According to Miss Desai, the evidence of the aforesaid two witnesses is in variance on material particulars. Their evidence, therefore, fails to inspire confidence. 6. In my view, the above contention of Miss Desai is without any substance. The evidence of the aforesaid two witnesses is the evidence of villagers who are agriculturists. They cannot be expected to have an accurate sense of time. Hence, their testimony cannot be discarded merely on the ground that there is some discrepancy in respect of the time factor in regard to the movements of the witnesses and the commission of the offence. 7. Miss Desai next submitted that the First Information Report (Exhibit -14) is a brief and cryptic description of the incident. As per the said First Information Report the accused suddenly assaulted Mukund with a knife. He attacked him on his stomach near the naval by bringing a knife from his house. The attack was without any reason. Because of the attack his intestines came out and hence immediately the villagers took him to the Government dispensary. Miss Desai has pointed out that the above report does not make any reference to the presence of eye witnesses who are examined in the case. She has pointed out that, as against the above information, as per his evidence, he sustained a bleeding injury and his intestines came out, he fell on the ground and became unconscious. He was removed to the Bhiwandi hospital where he regained consciousness. 8. In my view, not much capital can be made on account of the omission on the part of Mukund to disclose in his First Information that he lost consciousness at the place of the incident and had regained consciousness at the Bhiwandi hospital. He was removed to the Bhiwandi hospital where he regained consciousness. 8. In my view, not much capital can be made on account of the omission on the part of Mukund to disclose in his First Information that he lost consciousness at the place of the incident and had regained consciousness at the Bhiwandi hospital. These are trifling details which do not destroy the main case of the prosecution. 9. Miss Desai next submitted that Mukund, Manisha and Gopal have a strong animus against the accused on account of which they have falsely implicated the accused. She has pointed out that Mukund, in his cross-examination, has admitted that he was prosecuted for having committed the murder of one Ramesh Shankar Patil who was a cousin of the accused. In that case, Mukund was convicted under Section 324 I.P. Code and was sentenced to suffer 7 days imprisonment. In my view, rather than the above incident giving cause to the witnesses falsely implicating the accused, it provides a motive to the accused to commit the crime in question. 10. Miss Desai next pointed out that as against the version found in the First Information Report that the accused suddenly assaulted Mukund with a knife on his stomach, by taking the knife from his house, with out any reason, in the deposition in Court, Mukund has given details which are totally absent in the First Information Report. In his deposition, he has stated that, at that time the accused asked him as to why Mukund had abused his wife and children. The accused was asking this loudly. Hearing their talk, Manisha and Baliram came out of their house. At this stage, accused went running to his house and immediately returned and gave a blow with knife on his stomach". 11. In my view, the omission and/or contradiction pointed out are in respect of minor details. Merely because Mukund, in his report, had stated that the accused suddenly assaulted him without any reason, does not necessarily rule out the talk which the accused is said to have had immediately prior to the assault. It is next pointed out that, according to Mukund' s evidence, Manisha and Baliram had come on the scene on hearing the talk. The prosecution has" not examined Baliram but has examined Gopal instead. As against the above evidence, P.W. 3 Manisha does not refer to any exchange of words. It is next pointed out that, according to Mukund' s evidence, Manisha and Baliram had come on the scene on hearing the talk. The prosecution has" not examined Baliram but has examined Gopal instead. As against the above evidence, P.W. 3 Manisha does not refer to any exchange of words. This also, in my view, cannot alsify the case of the prosecution. Merely because the witness has stated that Baliram had come that does not rule out the presence of Gopal at the time of the incident. 12. Miss Desai next pointed out that as per the version of P.W. 2 Gopal accused was standing in front of Mukund while the knife blow was dealt by the accused. At that time the-accused gave the knife blow on the stomach of Mukund horizontally. He did not give the blow obliquely downward but inserted the knife straight This, she points out, is inconsistent with the medical evidence. As per the medical certificate (Exhibit-25) as also P.W. 7 Dr. Bhimrao Brahmane, the stab injury was caused obliquely downwards. As against the above evidence, P.W. 1 Mukund has stated that as the accused came running towards him, he thought that something might happen. He tried to run-away from the place. When he had gone to one or two fret the accused came there and gave a blow with the knife from his backside by taking his hand in front of Mukund's stomach. Immediately after that he fell on the ground and became unconscious. Here again, I find that the contradiction pointed out is in respect of the trivial details. It is not possible to discard the testimony of the witnesses on such discrepancies. 13. Miss Desai next pointed out that none of the witnesses reported the incident to the police Patil though such incidents are normally reported to him. In the instant case, I find that the First Information Report was recorded without any loss of time.' The investigation was taken over by the police immediately thereafter. Hence, it was not necessary for the witnesses to have informed the incident to the Police Patil. Miss Desai next pointed out that in the panchanama regarding the scene of offence (Exhibit-7) no signs or marks were found. The answer to the submission is to be found in the panchanama itself. It recites that no marks were found because of the raining. Miss Desai next pointed out that in the panchanama regarding the scene of offence (Exhibit-7) no signs or marks were found. The answer to the submission is to be found in the panchanama itself. It recites that no marks were found because of the raining. Miss Desai next submitted that P.W. 4 Bhaskar Bhanushali, a panch to the production of the knife by accused, when the accused voluntarily produced himself before the police, has turned hostile, The prosecution, however, did not chose to examine the second panch who had scribed the panchanama (Exhibit-19). The panchanama, however, has been deposed by P.W. 5, P.S. l. Shinde. He has stated that on the 1st of October, 1984 accused came and voluntarily surrendered himself at the police station. At that time the accused produced one knife which was attached under panchanama. He identified the knife (Article 1) before the Court as being the said knife. He has attested the panchanama (Exhibit 19). The above evidence of the police officer has not even been challenged in the cross-examination. Moreover, the report of the Chemical Analyser shows that the knife was stained with human blood 'O' Group which was the blood found on the clothes of Mukund. The above evidence, therefore, lends assurance to the evidence in respect of the production of the knife by the accused and the said knife having been used for the commission of the offence. 14. Miss Desai July contended that the offence in the instant case cannot fall under Section 307 but can only fall under Section 324 I.P.C. In my ORDER, there is considerable substance in this last contention advanced by Miss Desai. 15. In this context it may be useful to make a reference to a decision of the Supreme Court in the case of Hari Kishan and State pi Haryana v. Sukhbir Singh and others1. Placing reliance on the above decision Miss Desai has submitted that the facts of the present case fall short of making good the ingredients of an offence under Section 307 I.P.C. The Supreme Court, in the above case, observed, as follows: "Under Section 307, IPC what the Court 'has to see is, whether the act irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in that section. The intention or knowledge of the accused must be such as is necessary (to) constitute murder. The intention or knowledge of the accused must be such as is necessary (to) constitute murder. Without this ingredient being established, there can be no offence of "attempt to murder", Under S. 307 the intention precedes the act attributed to accused. Therefore, the intention is to be gathered from all Circumstance and not merely from the consequences that ensue. The nature of the weapon used, manner in which it is used, motive for the crime, severity of the blow, the part of the body where the injury is inflicted are some of the factors that may be taken into consideration to determine the intention. " Miss Desai next relied upon the case of "Dr. A.G. Bhagwat v. U.T. Chandigarh2, wherein the Supreme Court observed, as follows: "In order to attract the applicability of this section (i.e. Sec. 307 I.P.C.) to the facts of this case, it is necessary to find out that if the victim had met with death could the offence be one under S. 302, 1. 1989 Cri. L.J. 116. 2. 1989 Cr. L.J. 214. I.P.C. It is well settled that for conviction under S. 307, I.P.C., if the intention or necessary know ledge to cause death as envisaged by S. 300, I.P.C., which defines murder is there, then it is immaterial whether or not any hurt was caused to the victim by the accused." In order words, an act though sufficient in the ordinary course of nature to cause death would not constitute an offence under this section if the necessary intention or knowledge on the part of the accused is lacking. Thus for the purposes of this offence what is material is the intention or knowledge and not the consequence of the actual act done for the purpose of carrying out that intention. Intent essentially implies purpose and attempt is an actual effort made in execution of the purpose. Therefore, an attempt for purposes of S. 307, I.P.C., should stem from a specific intention to commit murder. Intention and know ledge being a man's state of mind cannot be proved by direct evidence thereof except through his own confession. In the absence of such a confession they can be proved only by circumstantial evidence. In other words, these are matters of inference from all the circumstances available in a case. Intention and know ledge being a man's state of mind cannot be proved by direct evidence thereof except through his own confession. In the absence of such a confession they can be proved only by circumstantial evidence. In other words, these are matters of inference from all the circumstances available in a case. Such circumstances may well be motive, the preparation made, the declaration, if any, made by the offencer at the time of commission of the offence, the weapon used, the nature of the injuries actually inflicted." In the instant case, the injuries which are found on the person of Mukund are described in the injury certificate (Exhibit-25) as under: “1. Stab world on (R)iliac region 2’ below 2” lateral to umbilicus transverse/obliquely downwards. Bleeding present fresh Sharp edged tapering object Intestines pop out J"xl!2" cavity deep Grievous Admitted in male surgical word (7)” 16. P.W. 7 Dr. Brahmane has described the injury as grievous enough to cause death had medical aid not been given to Mukund. He has, however, admitted that he has not noted the internal damage. If one has regard to the above medical evidence as also the absence of motive and the suddenness with which the incident is alleged to have taken place, it is difficult to ascribe the necessary intention to the accused so as to bring home the guilt under Section 307 I.P.C. The accused, in the circumstances, is entitled to an acquittal of the offence under Section 307 I.P.C. 17. Shri Kachare, the learned public prosecutor strenuously submitted that the accused, in the alternative, is liable to be convicted under Section 326 I.P.C. i.e. of causing grievous hurt with a dangerous weapon. He has pointed out that the injury was a stab wound on the illiac region 2" below and 2" lateral to umbilicus transverse/ obliquely downwards, intestine had popped out and the size of the injury was 1 "xl (2" cavity deep. According to the doctor, the above mentioned injury was so grievous that if medical. aid had not been given the patient would have died. Mr. Kachare has submitted that the accused should be presumed to have intended the injury which he caused. The effort on the part of Mr. According to the doctor, the above mentioned injury was so grievous that if medical. aid had not been given the patient would have died. Mr. Kachare has submitted that the accused should be presumed to have intended the injury which he caused. The effort on the part of Mr. Kachare to bring in the offence of grievous hurt as defined under Clause eigtly of Section 320, namely any hurt which endangers life is liable to fail, as there is no evidence regarding internal damage caused. Intestine had popped out but were not ruptured. 18. Shri Kachare next, Sought to bring the offence under Section 326 by bringing the case under the further clause eightly of Section 320 namely which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits." According to Mr. Kachare, Mukund was hospitalised and was an indoor patient for over 20-days. During the said period Mukund could not have been able to follow his normal pursuits. Hence, the offence in question amounts to a grievous hurt as defined in clause Eightly of Section 320 I.P. Code. 19. In this context, the best evidence in regard to the duration of the period of hospitalisation of Mukund was that of Mukund himself and of Dr. Brahmane. However, both the witnesses as also the medical certificate in respect of the injury is silent on the point of the duration of the hospitalisation of Mukund. The only evidence in this behalf is the evidence of P.W. 5, P.S. I. Shinde. According to him, the injured was in the Thane hospital for about 21 or 22 days. In cross-examination the witness has admitted that he had no documentary evidence to substantiate his claim than he injured was in the hospital for about 21 to 22 days. In this context, I find that the prosecution has failed to produce the medical case papers in respect of the stay of Mukund and the treatment given to him in the hospital. The best evidence is not forthcoming. It will be risky to place reliance upon the oral version of the police officer without being supported by the relevant documents in that behalf. The best evidence is not forthcoming. It will be risky to place reliance upon the oral version of the police officer without being supported by the relevant documents in that behalf. In the circumstances, I am constrained to hold that the prosecution has failed to prove that the offence in question amounts to grievous hurt as defined in clause eightly of Section 320 I.P. Code. What follows from the above finding is that the accused will be liable' to be convicted only under Section 324 I.P. Code. 20. In this stage, I have heard Miss Desai and Mr. Kachare on the point of sentence. I find that the incident in question has taken place in the year 1984; a period of almost nine years has gone bye. It has been pointed out by Miss Desai that the accused is an agriculturist who has since got married. He has three children aged about 9,8 and 4-1/2 years old. All of them are school going. The accused has already undergone a sentence of one month and six days. According to Miss Desai no useful purpose would be served by sending the accused to the jail at this belated junction. She has suggested that sentence of fine imposed upon the accused could be suitably enhanced and an order of compensation under Section 357 Criminal Procedure Code could be passed in favour of the injured Mukund. In my ORDER, the above plea is reasonable and deserves to be accepted. I issue notice of enhancement of the sentence. The accused is present in Court. Miss Desai, on behalf of the accused, has waived service of the notice. In my view, the following order will meet the ends of justice. The impugned order of conviction and sentence dated the 29th of November, 1986, passed by the learned VI Additional Sessions Judge, Thane in Sessions Case No. 102 of 1985, convicting the accused under Section 307 I.P. Code is set aside. The accused is convicted under Section 324 I.P.C. and is sentenced to suffer rigorous imprisonment for one month and to pay a fine of Rs. 50,500/-, in default to suffer rigorous imprisonment for nine months. The accused is entitled to set off for the period of detention which he has already undergone, as per Section 428 of the Criminal Procedure Cede. The accused is granted time of three months to deposit the fine amount. 50,500/-, in default to suffer rigorous imprisonment for nine months. The accused is entitled to set off for the period of detention which he has already undergone, as per Section 428 of the Criminal Procedure Cede. The accused is granted time of three months to deposit the fine amount. Out of the fine amount, if deposited, a sum of Rs. 50,000/- be paid over to P.W. 1 Mukund Pundalik Shelar. Appeal partly allowed. Appeal partly allowed.