JUDGMENT 1. This judgment will dispose of Cr. Appeal Nos. 209/88, 510/88 and 802/88. These arise from the judgment dated 1-2-88 of II Addl. Sessions Judge, Damoh whereby accused Mittu who is appellant in Cr.A.No.209/88, was convicted for offence punishable u/s 324 IPC and sentenced to fine of Rs. 3000/-. The second accused Kodu father of Mittu was acquitted. They were tried on the charge of attempt to murder punishable u/s 307/34 IPC for having attempted to murder Gokul. Cr. A. No. 510/88 was filed by the State u/s 377 (1) Cr.P.C. for enhancement of sentence against the accused even if the guilt was restricted to Section 324 IPC in view of 6 incised wounds given by this accused to the victim. The third Appeal i.e. Cr. A. 802/88 has also been filed by the State u/s 378 (1) /378 (3) Cr. P.C. after obtaining leave to file appeal. The leave was granted only in respect of Mittu and was refused in respect of Kodu. 2. The short allegations which were found estableshed by the trial court against Mittu were that on 26-4-87 in village Kishanganj at about 4. p.m. this accused voliuntarily assaulted Gokul with a knife and gave 6 incised wounds on various parts of his body including chest and back. The charge was that he gave these injuries with an intention to cause death of Gokul but the finding was that it was a voluntary attack by knife by the accused which resulted in simple hurt but the evidence regarding attempt to murder was lacking considering the medical evidence produced by the prosecution. 3. In these appeals it is sufficient to restrict ourselves to the question whether there was sufficient evidence to show that the offence fell u/s 307 IPC or under any provision of Indian Penal Code was ever then S. 324 IPC. Learned counsel for the appellant, in Cr. A. 209/88, does not press this appeal against conviction for the offence u/s 324 IPC or against sentence of fine but asserts that the appeals filed by the State have no merit. 4. As against this learned State counsel urges that the trial court omitted to read or perceive properly certain vital portions of the testimony of PW 12 Dr. Rai who performed operation on victim Gokul to save him from death. 4. As against this learned State counsel urges that the trial court omitted to read or perceive properly certain vital portions of the testimony of PW 12 Dr. Rai who performed operation on victim Gokul to save him from death. This doctor had stated that but for the medical treatment the patient would have died as there was surgical emphysima. The argument is that this part of the testimony has been totally ignored by observing that the report of the doctor is that the condition was normal and there was no report that the patient would have died but for the treatment. 5. The accused had given 6 stab wounds to Gokul. These are as under :- (i) Incised wound 1 1/4" x 3/4" x 2" on the right side of chest at 7th intercostal space, direction below upwords and medially. (ii) Incised wound 1" x 1/2" x 1 1/2" on the left side of the chest of 6th intercostal space, direction below upward and medially. (iii) Incised wound 1 1/4" x 3/4" x 2" on the left hypocoudrian region. Direction downwards, forwards and backwards. (iv) Incised wound 1 1/2" x 3/4" x 2 1/2" on the right side back 5 1/2 " below the lower border of Rt. scapular. Direction above and downwards. (v) Incised wound 1" x 3/4 x 2" on the upper and inner part of left buttock. Direction backward and upwards. (vi) Incised wound 1/2" x 1/5" x skin deep on the Rt. thigh medial aspect. These were noticed by Dr. Sunar (PW II) who opined that these were caused by sharp edged weapon and the patient was refferred to the Distt. Hospital. The opinion regarding their nature was reserved till x-ray examination of the various injuries. Of course, he reported that injuries were on vital parts of the body such as chest and he could not know at that time it any internal organs were also injured corresponding to external injuries. 6. PW 9 Dr. Tiwari had examined the x-ray plates of Gokul on 27-4-87. The doctor found fluid present in the right cavity. But did not found any bony injury. He gave his report Ex. P-8. 6. PW 9 Dr. Tiwari had examined the x-ray plates of Gokul on 27-4-87. The doctor found fluid present in the right cavity. But did not found any bony injury. He gave his report Ex. P-8. This doctor explains that normally pleural cavity does not contain any fluid and fluid gets collected in this cavity either as a result of injury or infection like pneumonia or T.B. He explained that covering over the lungs is called pleura and below it there is cavity in which there is lung and other internal organs. So in this cavity fluid was disclosed in the x-ray examination. 7. PW 12 Dr. Rai examined this patient at district hospital, Damoh at 10 p.m. on 26-4-87. He noticed surgical emphysima but the patient was conscious. He operated upon a cut wound on 7th rib. He noticed that the patient was having difficulty in breathing. So he admitted him in the hospital. His difficulty was improved on 27-4-87 but the surgical imphysima was increasing. So on 2-5-87 he was referred to Medical College Hospital Jabalpur as blood had been noticed deposited in his right lung. The bed-head tickets of this patient are Exs. P-9, P-10 and P-11. The doctor opined that the injuries on the body of Gokul were grevious and in the absence of proper treatment they were sufficient to cause death. 8. This withness has also stated that while he was treating this patient whose condition was serious, Dr. Sonar was examining him and preparing his report. He said that such a serious patient is treated by him first and entries in papers are made thereafter. 9. The trial court noticed these opinions of the doctors and considered the notes of Dr. Rai on the bed-head tickets of this patient. The doctor has noticed that the B.P was 110/80. He heart beat was 80 per minute. Abdomen was soft. Liver dullness within normal limits. Patient was fully conscious. Heart beat was normal. Chest movement in the right side was done by the doctor. Incise wound on the chest on right 7th rib was found. 10. The trial court has these notes as meaning that the condition of the patient was normal and there was no danger to his life. The trial court read these notes as contradict to assertion that but for the treatment the patient would have expired. 11. Incise wound on the chest on right 7th rib was found. 10. The trial court has these notes as meaning that the condition of the patient was normal and there was no danger to his life. The trial court read these notes as contradict to assertion that but for the treatment the patient would have expired. 11. We are unable to appreciate that the opinion made in the bed-head tickets by the doctor are in any manner contrary to his opinion in the court. When a doctor performs an operation, he does not record in his operational notes as to what would be the effect if the operation is not performed. He is not to fall in these datails as his main job is to treat the patient. He is not giving at that stage, medico legal opinion. It is expected that he has to give his opinion in the court. Dr. Sonar (PW II) has given written report about the nature of injuries in this case. If that doctor finds that further opinion is needed to reach a finding or that further examinations are needed or that first injury managment is needed, and thereafter only the opinion could be framed. He is entitled to defer his opinion to that period of time. In this case there was subsequent x-ray after PW II had examined this patient. There was also an operation conducted by DW 12. PW 12 was competent person to give opinion regarding the exact nature of injuries. In fact after the doctor found that blood was deposeted in the lung he referred the patient to Medical College Hospital, Jabalpur. We find that no doctor has appeared as a witness from Medical College Hospital, Jabalpur, regarding how the patient was treated there and what other factors were noticed. However, we are of the opinion that the facts noticed by Dr. Rai, during performance of operation of this patient, were sufficient for him to give an opinion which he gave that there was a surgical emphysima and but for the operational treatment the patient would have died and the injuries would have proved sufficient to cause death. Of course, the doctor has not stated that this injury was sufficient in ordinary course of nature to cause death, in so many words. Of course, the doctor has not stated that this injury was sufficient in ordinary course of nature to cause death, in so many words. But his opinion cannot be explained away in the manner done by the trial court taking into consideration his nothings on the bed-head ticket Ex. P-10. 12. Considering this medical evidence in its entirety, we find that the injuries given by this accused to Gokul were 6 stab wounds on chest and back and also on buttock and thigh. At least one of them was such as caused surgical emphysima and resulted in collection of blood in the lungs and the injury could have caused death but for the medical treatment, being sufficient to cause death. 13. Such an injury would be deemed to have been caused with the 'intention of causing such bodily injury as is likely to cause death'. He would be deemed to have the knowledge that he was likely to cause death by his act. These mens rea would not be covered by section 300 IPC if death had occurred as from medical evidence, it does not appear that they were sufficient in ordinary course of nature to cause death or that they were caused with the intention to cause death or with intention to causing such injury as he 'knew' would be likely to cause death. The distinction in section 299 and 300 IPC lies in mens rea. Deemed knowledge of likelihood of causing death, is different from 'intentionally causing such injury as the assailant knows to be likely to cause death'. The distinction although, some times marginal, is real. In the present case any of the four mens rea required for section 300 IPC is not established. The injuries were caused voluntarily and they were likely to cause death. So the mens rea falls u/s 299 IPC and remains short of the mens rea required for section 300 IPC. 14. Thus the act of the accused would be an attempt to culpable homicide not amounting to murder punishable u/s 308 IPC and since the injuries were actually caused, it would be covered by Part II of section 308 IPC. 15. We may refer, in this context, to a pronouncement of the Apex Court in Tukaram Gundu Naik v. State of Maharashtra; 1994 Cri. L J. 224. In that case a number of incised wounds were inflicted by the accused. 15. We may refer, in this context, to a pronouncement of the Apex Court in Tukaram Gundu Naik v. State of Maharashtra; 1994 Cri. L J. 224. In that case a number of incised wounds were inflicted by the accused. However, the doctor's opinion was that none of the vital organ was injured. The Apex Court found that the offence did not fall within the ambit of section 307 IPC but remained restricted to section 308 IPC. 16. Considering the medical evidence in this case, we are of the view that the conviction of this accused should have been u/s 308 IPC and not to the lesser offence of section 324 IPC. Consequently, we accept the State Appeal No. 802/88, converting the conviction to section 308 instead of section 324 IPC. 17. Now coming to the sentence, the offence in this section can be punished with imprisonment upto 7 years R. I. or fine or both. As pointed out by the learned counsel for the appellant, he was a young man of 18 years at the time of offence and was student of class IX. He has faced trial for the last 10 years by now. He was in jail for about 3 days during trial and inspite of 6 stab wounds the trial court considered it fit to impose only fine on him, although u/s 324 IPC. We have considered whether it would be proper to send him jail now. Although number of injuries were six, but he was a young man at that time and 10 years have elapsed. It leads us to the discretion that we may not send him to jail at this point of time. Considering all these circumstances we enhance the sentence to fine of Rs. 5000/-, indefault of which he will undergo R. I. for 1 year. This disposes of Cr. A. No. 510/88 regarding enhancement of sentence also. The appellant shall deposit fine within 3 months from today. In case of default, he would have to surrender to undergo the sentence. On the fine being deposited, a sum of Rs. 3000/- shall be payable to the injured instead of Rs. 2000/- awarded by the trial court. 18. Accordingly Cr. A. No. 209/88 filed by the appellant Mittulal is dismissed. Cr. A. No. 802/88 by the State is accepted to the limited extent as ordered above and that order disposes of Cr. On the fine being deposited, a sum of Rs. 3000/- shall be payable to the injured instead of Rs. 2000/- awarded by the trial court. 18. Accordingly Cr. A. No. 209/88 filed by the appellant Mittulal is dismissed. Cr. A. No. 802/88 by the State is accepted to the limited extent as ordered above and that order disposes of Cr. A. No. 510/88 also in which no separate order need be passed. On depositing fine by the accused, his bone's shall stand discharged. Appeal dismissed