JUDGMENT - S.G. MAHAJAN, J.:---In Session Trial No. 393/95, the learned 6th Additional Sessions Judge, Nagpur, convicted accused No. 1 Ashok s/o Nagorao Chaudhari and No. 2 Bhagwan s/o Anandrao Manohare both, of the offence under section 307 read with section 34 I.P.C. and sentenced each of them to suffer R.I. for five years and to pay a fine of Rs. 500/- or in default to suffer R.I. for two months more. Out of the above said two accused, only accused No. 1 Ashok has challenged the order of conviction and sentence. He is the appellant in this appeal. 2.The case of the prosecution was as under :--- (A) Prior to the incident in this case, the accused used to game on play cards in the locality of complainant Raju Pyarelal Basdwar named Vasant Nagar Hutment, Dharampeth. On the earlier occasions, the complainant had prohibited the accused persons from gaming. In spite of his protests, the accused used to play. Due to the objection of the complainant, the accused got annoyed. The incident in this case took place on 21-9-1994 at about 3.00 to 3.15 p.m. At that time, the accused persons along with some others were gaming on play cards in the above said locality. Complainant Raju asked them not to game. Accused No.1 Ashok, who is the present appellant, took out the gupti (cane sword) and delivered its blow on the chest of the complainant. Accused No. 2 Bhagwan also gave a blow of blade of spear on the armpit of the complainant. The complainant sustained bleeding injuries. His wife Rekha, one Mayabai and Parasram took him in a rickshaw to Police Station Sitabuldi. From there, he was removed to Government Medical College Hospital by police. P.S.I. Jafar Syed, who was on duty as a Day Officer in Police Station Sitabuldi, immediately went to Medical College Hospital and issued a requisition to C.M.O. seeking permission to record the statement of the complainant. The Medical Officer examined the complainant and endorsed on the requisition that the complainant was fit for statement. P.S.I. Jafar Syed thereupon recorded the statement of the complainant in presence of C.M.O., Medical College Hospital, Nagpur, which is the F.I.R. (Exhibit 34) in this case. P.S.I. Jafar Syed then came to Police Station and registered the crime under section 307 read with section 34 I.P.C. The investigation was then handed over by him to P.S.I. Thakre. P.S.I. Jafar Syed thereupon recorded the statement of the complainant in presence of C.M.O., Medical College Hospital, Nagpur, which is the F.I.R. (Exhibit 34) in this case. P.S.I. Jafar Syed then came to Police Station and registered the crime under section 307 read with section 34 I.P.C. The investigation was then handed over by him to P.S.I. Thakre. (B) P.S.I. Thakre proceeded to the spot and drew the spot panchanama. During the preparation of the spot panchanama, he seized the plain earth and earth stained with blood from the spot. During the investigation, he also seized the baniyan of the complainant stained with blood, which was produced by the complainant's wife. During the process of further investigation, the accused were arrested. The gupti (cane sword) was recovered from the house of accused No. 1 Ashok on 4-10-1994 in consequence of the information given by him, on memorandum. So also the blade of spear was recovered on 8-10-1994 from the house of accused No. 2 Bhagwan at his instance, that is in consequence of the information given by him, on memorandum. (C)On admission of complainant Raju in the Government Medical College Hospital, Nagpur, on 21-9-1994 at 4.35 p.m., he was medically examined by Dr. Agrawal. Dr. Agrawal found the following injuries on the person of complainant Raju :--- (1) Stab---left para-sternal lower third 2.5 x 5 cm, edges sharp, angles acute. (2) Stab---left axilla ½ x ½ cm, rounded, edges contused. (3) Laceration upper lip right, 1 x ½cm, associated with swelling. X ray of chest and abdomen was advised. In the opinion of Dr. Agrawal the injuries were fresh and injury No. (1) was dangerous to life. They were possible with sharp edged weapon. (D)The property was sent to the Chemical Analyzer and the report of Chemical Analyser was received. (E)On completion of the investigation, the accused persons stood charge-sheeted. 3.The learned Chief Judicial Magistrate, Nagpur, committed the case to the Court of Session for the trial of the accused persons. The learned 6th Additional Sessions Judge, Nagpur, framed the charge of the offence under section 307 read with section 34 I.P.C. It was read over and explained to the accused and both of them pleaded not guilty. Their defence was of denial. The learned 6th Additional Sessions Judge, Nagpur, framed the charge of the offence under section 307 read with section 34 I.P.C. It was read over and explained to the accused and both of them pleaded not guilty. Their defence was of denial. In addition, accused No. 2 contended that P.W. Mayabai, who is the second wife of complainant Raju, was constructing a hut in front of his house and that time, the disputes arose between them. Eight days thereafter, the above incident took place. 4.The learned Additional Sessions Judge, Nagpur, found the evidence of complainant Raju and the witnesses to the occurrence reliable, cogent and free from all doubts. He found that the version of complainant Raju was corroborated by the evidence of his wife P.W. Rekha and P.W. Mayabai, the inhabitant of locality and also further corroborated by the medical evidence as well as by the recovery of the weapons of offence on the memorandum of accused persons. The learned Judge was also of the opinion that the accused persons had an intent to commit murder of the complainant and since the complainant survived, it was a case of an attempt to commit murder. He accordingly convicted the accused persons of the offence under section 307 read with section 34 I.P.C. and sentenced them, as detailed above. This order of conviction and sentence is under challenge in this appeal, which is brought only by accused No. 1. 5.Heard Shri Rawlani, the learned Advocate for the accused appellant and Shri Doifode, the learned Additional Public Prosecutor for the State. 6.On going through the evidence led by the prosecution, one will find that the evidence of complainant Raju and P.Ws. Rekha and Mayabai is consistent on the point of incident in material particulars. The evidence of these witnesses is also substantially corroborated by the medical evidence. Further the prosecution has also proved through the Investigating Officer the recovery of the weapons of offence in consequence of the information given by the accused persons, on memorandum. The weapons recovered at the instance of the accused persons were referred to Dr. Agrawal and he opined that the Injuries No. (1) and (2) were possible by the weapons referred. 7.The learned Advocate for the accused appellant tried to demonstrate some infirmities in the prosecution evidence. The weapons recovered at the instance of the accused persons were referred to Dr. Agrawal and he opined that the Injuries No. (1) and (2) were possible by the weapons referred. 7.The learned Advocate for the accused appellant tried to demonstrate some infirmities in the prosecution evidence. He first canvassed that the version of complainant Raju in his evidence that accused No. 1 stabbed him with gupti on his chest, is an omission in the report lodged by him to the police. In fact the omission is not in respect of the complete averment about stabbing with the gupti on chest. Complainant Raju has stated in his report Exhibit 34 that Ashok took out the gupti and delivered its blows on his abdomen. So he has categorically stated about the giving of the blow by accused Ashok with a gupti in his report. That part of the version of the complainant in his evidence cannot be regarded to be an omission. The omission is only about the part of the body on which the blow was inflicted. As per the evidence of complainant Raju, the blow was inflicted on his chest, whereas in the report Exhibit 34, he stated that the blows were delivered on his abdomen. In the real sense, it is a contradiction, but the learned Advocate for the accused did not put up the contradiction, but he merely put up the omission about the part of the body, that is the chest. The above said contradiction is not material. The chest and abdomen are the parts of the body located adjoining each other. So if the blow is inflicted on the lower part of the chest, one may carry an impression that it is on the abdomen. 8.The learned Advocate for the accused appellant further contended that P.W. 8 P.S.I. Jafer Syed gave the requisition to the doctor seeking permission to record the statement of complainant Raju. The document Exhibit 57 (Requisition) shows that the doctor concerned examined the complainant medically and endorsed that he was fit for statement. The learned Advocate further submitted that the doctor, who opined that the complainant was fit for giving statement, was not examined and it is, therefore, not proved whether the complainant was conscious and able to speak when his report was recorded. However, it can be seen that the complainant survived and he was examined in the Court. The learned Advocate further submitted that the doctor, who opined that the complainant was fit for giving statement, was not examined and it is, therefore, not proved whether the complainant was conscious and able to speak when his report was recorded. However, it can be seen that the complainant survived and he was examined in the Court. The contents of the report Exhibit 34 were read over to him and he categorically deposed that the said contents were recorded by the police as per his say. The contents of the report are, therefore, confirmed by the complainant before the Court. Had the complainant succumbed to the injuries, then the submission made by the learned Advocate about the consequences of non-examination of the doctor would have carried importance. 9.The learned Advocate for appellant further pointed out that complainant Raju in his examination-in-chief itself denied the signature on the report as his own. No doubt, complainant Raju first stated that it was not his signature, but after the report was read over to him, he deposed that the report was bearing his signature. The evidence of the complainant shows that he was confused because the signature on the report was made by him about 4 to 5 years before the recording of his evidence and earlier he used to put his signature in a different style. Moreover, P.W. P.S.I. Jafer Syed, who recorded the report of the complainant, testified that the report Exhibit 34 was signed by complainant Raju. 10.It was the further submission of the learned Advocate for appellant that at the time of incident, a quarrel had occurred between complainant Raju and some 4/5 persons, who were gaming. He further pointed out that the prosecution has not explained as to who has inflicted the third injury on the person of complainant Raju, which was on the lip. So, according to the learned Advocate, the participation of the other persons in the assault was not ruled out. However, the perusal of the evidence of witnesses to the occurrence would indicate that only accused No. 1 and 2 inflicted the injuries on the person of the complainant with the respective weapons carried by them. The participation of the other persons, who were gaming on the spot, in the assault on complainant Raju, is not substantiated by the evidence on record. The participation of the other persons, who were gaming on the spot, in the assault on complainant Raju, is not substantiated by the evidence on record. Merely because there was a third injury on the person of complainant Raju, which was not explained by the prosecution as to who had inflicted the same, it cannot be inferred that accused Nos. 1 and 2 did not deliver the blows of weapons to the complainant. 11. The learned Advocate for appellant further pointed out that contradiction in the statement of P.W. Rekha recorded by police. P.W. Rekha deposed in her cross-examination that accused No. 2 (Bhagwan) gave a blow of spear blade on the left armpit of her husband. She further denied to have stated before the police that Bhagwan gave a blow of spear blade also on the chest of her husband, whereas the statement of this witness recorded by police shows that she stated therein that accused Bhagwan gave a blow also on the chest of her husband. On the basis of this contradiction, the learned Advocate canvassed that the injury that was inflicted on the chest of complainant Raju was inflicted by accused Bhagwan. It is not possible for me to concur with the learned Advocate on this point. The above contradiction does not rule out the story of the prosecution that accused Raju gave a blow of gupti on the chest of the complainant. There is no such omission as regards the giving of blow of gupti by accused Raju on the chest of the complainant, in the statement of P.W. Rekha recorded by police. 12.The learned Advocate for appellant further pointed out that P.W. 3 Mayabai did not specify in her evidence as to who inflicted the injury on which part of the body of the complainant. He also further submitted that the statement of P.W. 3 Mayabai was recorded by police on 26-9-1994, that is five days after the incident. Although P.W. Mayabai did not give the details as to on which part of the body the injury was inflicted by which accused, the other evidence in that respect is there on record and not giving the details by P.W. Mayabai would not affect the prosecution story in that regard. Her evidence has to be read coupled with the other evidence on record. Her evidence has to be read coupled with the other evidence on record. So also, it is not made to show that any prejudice is caused to the accused persons because of the delayed recording of statement of P.W. Mayabai by police. 13.As a result of the whole discussion made above, I find that the conclusion of the learned trial Judge that accused No. 1 Ashok inflicted the injury by giving a blow of gupti on the chest of complainant Raju and accused No. 2 Bhagwan inflicted the injury on the armpit of complainant Raju by giving a blow of blade of spear, is correct. 14.Now the question that comes for consideration is as to what offence was committed by the accused persons whether it was an attempt to commit murder or it was only the offence of voluntarily causing hurt to the complainant by means of a sharp weapon. The learned Advocate for the appellant contended that the offence under section 307 I.P.C. is not made out against the appellant because the prosecution has failed to establish that the appellant inflicted the injury with an intent to cause the death of the complainant. The injuries on the person of the complainant are described in the injury certificate issued by Dr. Agrawal, which is at Exhibit 61. During the evidence, Dr. Agrawal did not depose that he examined complainant Raju medically. His evidence shows that the injury report was prepared by him on the basis of bed head ticket, which was available in the office of Government Medical College, Nagpur. Though this is the state of things, the learned Advocates for accused Nos. 1 and 2 both admitted the bed head ticket by filing a pursis Exhibit 71. Hence the bed head ticket was marked as Exhibit 72. Thus the injuries recorded in the bed head ticket are admitted on the part of the defence. 15.The learned Additional Public Prosecutor pointed out that Dr. Agrawal has described in his injury report Exhibit 61 that injury No. (1) was dangerous to the life. According to him, on the basis of the above finding of the Medical Authority, the intention on the part of the accused No. 1 (appellant) to cause the death is made out and he would, therefore, be liable under section 307 I.P.C. and was rightly convicted of that offence by the learned trial Judge. According to him, on the basis of the above finding of the Medical Authority, the intention on the part of the accused No. 1 (appellant) to cause the death is made out and he would, therefore, be liable under section 307 I.P.C. and was rightly convicted of that offence by the learned trial Judge. However, as already stated above, Dr. Agrawal (P.W. 9) nowhere deposed in his evidence that he had examined the injured. He also did not state anything in evidence about the above said opinion recorded by him in the injury certificate that Injury No. (1) was dangerous to the life. In the bed head ticket, it is nowhere mentioned that Injury No. (1) was dangerous to the life. There is no finding of the Medical Authorities in bed head ticket that the said injury was sufficient in the ordinary course of nature to cause death. On the other hand, in M.L.C. report Exhibit 28, which was drawn on the X-ray examination, it is mentioned that there was no evidence of bony injury and there was also no evidence of free gas under right dome of diaphragm; There was also no evidence of multiple air fluid levels. Dr. Agrawal, who has recorded the opinion in injury report Exhibit 61 that Injury No. (1) was dangerous to the life, himself has recorded his further opinion in Exhibit 75 that Injuries No. (1) and (2) are the simple injuries and they were possible with the same type of weapons, which were brought for the examination, that is to say gupti and blade of spear. So the above said Injury No. 1 is regarded by him as simple injury in Exhibit 75. There is no controversy about the nature of Injury No. (2), which was inflicted by accused No. 2 on the armpit of the complainant and the same is regarded to be a simple injury. Thus it is quite clear that all the injuries on the person of the complainant were simple in nature. In addition to above data, it may also be considered that while describing the size of Injury No. (1) and (2), the Medical Authorities have given only the length and width of those injuries and the depth is not mentioned. That means the injury was not much deep. In addition to above data, it may also be considered that while describing the size of Injury No. (1) and (2), the Medical Authorities have given only the length and width of those injuries and the depth is not mentioned. That means the injury was not much deep. It is further worth noting that the victim was discharged from the hospital on 24-9-1994, that is within three days of his admission. All these factors indicate that the injuries caused to the complainant were simple in nature. 16.The learned Additional Sessions Judge placed reliance on (State of Maharashtra v. Balaram Bama Patil and others)1, 1983(1) Bom.C.R. 573 The ratio of this case is that, to justify a conviction under section 307 I.P.C., it is not essential that bodily injury capable of causing death should have been inflicted; Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. It is also observed in the above authority that it is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted and 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 the aforesaid section. The learned trial Judge then discussed the circumstances of this case such as weapons used and the part of the body of complainant on which the injuries were caused and found that the accused persons intended to cause the death of the complainant. However, the above case is not applicable to the present case on facts. In the cited case, it was a preplanned attack. One death was also caused. The intention of the assailants was gathered from the particular facts and circumstances of that case. The facts and circumstances of the present case are different, which are elaborately discussed in the subsequent paras. In the cited case, it was a preplanned attack. One death was also caused. The intention of the assailants was gathered from the particular facts and circumstances of that case. The facts and circumstances of the present case are different, which are elaborately discussed in the subsequent paras. 17.The learned Advocate for the appellant cited (1) (Sitaram Dhondu Patil @ Shelke v. State of Maharashtra)2, 1993(3) Crimes 495 , (2) (Ved Pal v. State of U.P.)3, 1987 (Supp.) S.C.C. 596, (3) (Ramesh v. State of U.P.)4, A.I.R. 1992 S.C. 664 and (4) (Anokhelal and others v. State of M.P.)5, 1995(III) C.C.R. 465. 18.The facts of Sitaram Dhoundu Patil's case are identical to the facts of the present case. In Sitaram Dhoundu Patil's case, the assault was made by the accused on the stomach of the victim with a knife, but the incident had occurred on the spur of moment. There was no evidence regarding the internal damage caused to the intestines of the injured though the intestines were popped out. There was no rupture. Although it was alleged by the Investigating Officer that the victim was admitted in the hospital for about 21 or 22 days, there was no satisfactory evidence about his stay as an indoor patient and about the treatment given to him in the hospital. In the present case also, the quarrel occurred on the spur of moment. The assault on the complainant was not a preplanned assault. The accused persons inflicted the blows of weapons because the complainant objected to their gaming in the locality. Although complainant Raju deposed that on the earlier occasions also, he had objected to the gaming of the accused persons in the locality and because of such protests they were annoyed, these facts were not stated by him in the report and the omission in that respect is proved. So it is not that due to the earlier quarrels, the accused could be said to have made a plan to attack the victim. No doubt the accused persons were armed with the respective weapons, but it cannot be said that they were carrying those weapons with a particular intention of causing the death of victim. It seems that they had kept those weapons with them for opposing the interference in their gaming. No doubt the accused persons were armed with the respective weapons, but it cannot be said that they were carrying those weapons with a particular intention of causing the death of victim. It seems that they had kept those weapons with them for opposing the interference in their gaming. As already discussed above, there is no evidence in the present case also about the internal damage and the injuries are described as simple injuries in Exhibit 75. Thus the facts of the above case cited by the learned Advocate for the appellant are applicable to the present case. In the case cited above, the conviction under section 307 or under section 326 I.P.C. was held to be not sustainable and it was held that the offence fell under section 324 I.P.C. The sentence was accordingly reduced. 19.In Ved Pal's case the gunshot was fired on the victim, which caused only superficial pellet injuries to him. The injuries were not such as likely to cause death. The conviction was altered from section 307 to section 323 I.P.C. and the sentence was reduced. 20.In the case of Ramesh v. State of U.P., only a single injury was caused on the back of neck of the victim. The conviction under section 307 was altered to section 324 I.P.C. 21.In Anokhelal's case out of the six injuries caused to the complainant, only Injury No. 1 was grievous in nature, but there was no medical evidence to show that the said injury was sufficient in the ordinary course of nature to cause death of the complainant. It was found that the intention to cause death was completely lacking and, therefore, the conviction and sentence of the appellant under section 307 I.P.C. were held to be not sustainable. 22.In addition to the above circumstances, one more factor is liable to be noted. The evidence on record shows that each of the accused Nos. 1 and 2 gave a single blow to the victim. The evidence on record further shows that there was no protest on the part of the complainant. Still the accused persons did not give any successive blow. Had there been any intention on their part to cause the death of the victim, they would have given more than one blow when there was no protest. The evidence on record further shows that there was no protest on the part of the complainant. Still the accused persons did not give any successive blow. Had there been any intention on their part to cause the death of the victim, they would have given more than one blow when there was no protest. 23.In the result, the circumstances that have come on record, as discussed above, indicate that there was no intention on the part of any of the accused to cause the death of the complainant and the offence under section 307 I.P.C., therefore, is not attracted in this case. The offence, that is, therefore, made out against both the accused, was under section 324 I.P.C. and they ought to have been convicted and sentenced for that offence. 24.In the result, the conviction of the accused appellant shall have to be altered from section 307 I.P.C. to section 324 I.P.C. and the sentence shall have to be reduced accordingly. In this case, only accused No. 1 Ashok s/o Nagorao Chaudhari has preferred the present appeal. Accused No. 2 Bhagwan s/o Anandrao Manohare has not preferred any appeal against the order of conviction and sentence. However, the finding of this Court about the offence committed by both the accused persons is interdependent. The conviction of the other accused in respect of the offence under section 307 I.P.C., who has not preferred any appeal, would also not, therefore, sustain. Though accused No. 2 has not preferred the appeal, this Court can, in the exercise of revisional powers, deal with his case. The above view is fortified by the ratio of (1) (Hari Nath and another v. State of U.P.)6; Chhabi Nath and another v. State of U.P., and (Raj Nath v. State of U.P., A.I.R. 1988 S.C. 345, (2) (In re C. Raghava Variar and another)7, Vol. 52, 1951 Cri.L.J. 1069 and (3) (Karam Dass v. State)8, 1952 Cri.L.J. 1119. Since, as laid down in Hari Nath's case A.I.R. 1988 S.C. 345, the findings in relation to accused Nos. 1 and 2 are interdependent and inextricably integrated, the conviction of accused No. 2 Bhagwan under section 307 I.P.C. cannot be sustained and his sentence also shall be reduced as in the case of appellant. Hence, the following order : 25.Criminal Appeal No. 92 of 1999 filed by Ashok s/o Nagorao Choudhari is partly allowed. 1 and 2 are interdependent and inextricably integrated, the conviction of accused No. 2 Bhagwan under section 307 I.P.C. cannot be sustained and his sentence also shall be reduced as in the case of appellant. Hence, the following order : 25.Criminal Appeal No. 92 of 1999 filed by Ashok s/o Nagorao Choudhari is partly allowed. The conviction of the accused appellant under section 307 read with section 34 I.P.C. in Session Trial No. 393/95 is altered to section 324 read with section 34 I.P.C. and the sentence of rigorous imprisonment for five years passed upon him is reduced to the sentence of rigorous imprisonment for three years. The sentence of payment of fine of Rs. 500/- or in default to suffer R.I. for two months more is, however, kept intact. If the accused appellant has not paid the fine, he will have to undergo the said sentence in default. The conviction of accused No. 2 in the above said Session Trial No. 393/95, that is to say, of the accused Bhagwan s/o Anandrao Manohare, is also altered from section 307 read with section 34 I.P.C. to section 324 read with section 34 I.P.C. and the sentence of rigorous imprisonment for five years passed upon him is also reduced to the sentence of rigorous imprisonment for three years. In his case also, the sentence of payment of fine of Rs. 500/- or in default to suffer R.I. for two months more is kept intact. If the fine is not paid by him, he shall have to undergo the aforesaid sentence in default. The period undergone by the accused persons in detention shall be set off against the substantive term of imprisonment. Appeal partly allowed. -----