Judgment B.N.P.Singh, J. 1. The appellants along with Naresh Yadav were tried for the offences punishable under Section 307 of the Indian Penal Code, However, since the police did not send up Naresh Yadav for trial, the trial commenced only against the appellants who suffered conviction under Section 307 of the Indian Penal Code and were sentenced to suffer rigorous imprisonment for ten years. 2. The factual matrix emerging from the fardbeyan of Krishna Sao P.W. 5 was that on 13th May, 1996 at about 3.00 a.m. while he was sleeping in the Varandah of a temple which was adjacent to his house, he felt some persons pressing is legs and then he got awaken and noticed that while Ram Swarup Yadav had pressed his hand, Naresh Yadav pressed his legs and Dilip Yadav dealt successive blow with knife on him causing multiple injuries on his person. After the alarm was raised by him, the persons of the vicinity assembled. The assailants took to their heels and with these narrations, fardbeyan of Krishna Sao was recorded by the Police Officer of Amas Police Station at Primary Health Centre, Amas and thereafter on the strength of fardbeyan of Krishna Sao first information report was drawn up by Curua police station and investigation commenced. During investigation, the Investigating Officer took various steps for collection of evidences got injured examined by Dr. Baijnath Singh P.W. 6, secured injury report from the doctor and on conclusion of investigation laid charge-sheet before the Court and the appellants were put on trial. In the eventual trialthe procecution examined altogether six witnesses including the doctor police officer and also those who claimed to be ocular witness. The trial Court placing implicit reliance on the testimony of the witnesses rendered verdict of guilt finding the appellants guilty under Section 307 of the Indian Penal Code and sentenced them in the manner stated above. 3. Now adverting to the evidences placed on the record one would find Krishna Seo P.W. 5, who was the person who set the police in motion, reiterating is early version which he rendered before the police about he getting awakened when Ram Swarup Yadav pressed his hands and Naresh Yadav pressed his leg. He would state before the Court that pursuant thereto Dilip Yadav dealt successive blows on his person causing injuries in his chest and accipital region of head and also chin. He would state before the Court that pursuant thereto Dilip Yadav dealt successive blows on his person causing injuries in his chest and accipital region of head and also chin. Further evidence was that he was carried to Madanpur hospital where he gained consciousness pursuant to which his statement was recorded by a police officer. Harihar Sao P.W. 1 claimed to have witnessed Ram Swarup Yadav having caught hold of Krishna Sao, when Dilip Yadav gave successive blows on his person by Knife. After he along with his father reached the place of occurrence the appellants took to their heels. He would state that he had taken the injured to the doctor of the village who advised him to take him to the hospital. Though the injured was carried to Amas Hospital, since the doctor was not available, he was carried to Madanpur, where he remained confined in hospital for 15 days and got treatment. The evidence of P.W. 2 Bartu Yadav was more or less in similar tune about witnessing the incident when Naresh and Ram Swarup Yadav caught hold of Krishna Sao and Dilip Yadav gave successive blows on his person by knife. He stated to have carried Krishna Sao to Amas from where he eventually removed to Madanpur where he got treated. Ganesh Yadav P.W. 3 and Karu Sao P.W. 4 rendered their statements in similar terms about they having witnessed Ram Swarup Yadav and Naresh Yadav having caught hold of Krishna Sao, pursuant to which successive blows were given by Dilip Yadav. Mr. Baijnath Singh P.W. 6 who stated to have clinically examined the injured noticed as many as seven incised wounds on different parts of his person which were caused by sharp cutting instrument. This is all the evidences that has been adduced on behalf of the prosecution. 4. A lot of criticisms have been made on behalf of the appellants to assail the finding recorded by the trial Court and it is sought to be urged that if the statement of injured and other witnesses which they rendered before the Court, were taken to be true on its face value the injured remained confined in the clinic of the doctor for about 15 days but no such finding was ever recorded by the doctor who examined him. The contentions were raised that though there has been coherent statement of the witnesses about the injured lying on the earth after receipt of multiple injuries on his person, there was no evidence of blood sheared wearing apparels, seized by the Investigating Officer and also there has been no finding about blood found at the place of occurrence and that being the human blood. In quick succession, the arguments were canvassed at Bar on behalf of the appellants that the statement of the witnesses suffered major contradiction which rendered then unworthy of credence and hence the prevention case has to be scarred on this score. Non-examination of independence witness was also taken to be a ground by the learned counsel appearing for the appellants to impeach the credibility of the evidences and it is urged that only interested witnesses were examined, to the exclusion of those who could have been independent witnesses. In this context, my attention has been drawn to the statement of P.W. 1 who would state that adjacent to the temple where injured was sleeping, houses of Kuldeep, Suresh Bhuinya, Prushotam and Upendra Mitra situate and the last argument canvassed on behalf of the appellants was that as all the injuries noticed on the person of the injured by the doctor were shown to be superfluous in nature that did not fall within the ambit of Section 307 of the Indian Penal Code and it is also urged that if the intention of the appellants was as such there was no intervening circumstances to prevent them from translating their design into action and about the-sentence learned counsel would urge that the sentence imposed on the appellants was quite excessive. Learned counsel appearing for the State sought to justify the finding recorded by the trial Court and also countered the arguments advanced on behalf of the appellants. 5. The factum of Krishna Sao sustaining multiple injuries on his person by sharp cutting weapon cannot be seriously challenged in view of ocular evidence and also the finding recorded by the doctor. Now the evidence of the individual witness has to be considered to judge their credibility and as to whether it is meritorious. 5. The factum of Krishna Sao sustaining multiple injuries on his person by sharp cutting weapon cannot be seriously challenged in view of ocular evidence and also the finding recorded by the doctor. Now the evidence of the individual witness has to be considered to judge their credibility and as to whether it is meritorious. Now adverting the evidence of P.W. 1 who claimed to have flocked to the place of occurrence along with Karu after alarms were raised, he would state that shortly after he reached the place of occurrence he did not notice there any one except the accused persons who too retired from the place of occurrence on seeing him and it was only after retreat of the assailants from the place of occurrence that Suresh Bhuiyan, Rambarat Yadav, Naresh Yadav, Rajesh Mishra happened to come there. Though Rambarat Yadav too claimed to have witnessed the assault on Krishna Sao. if evidence of P.W 1 about his arrival on the place of occurrence after the accused had retired from the place of occurrence is taken into consideration that excludes him from being ocular witness to the incident. Now coming to the evidence of P.W. 2, his evidence was that shortly after he reached the place of occurrence he did not notice any one except the accused persons and it was only after the assailants had left place that Naresh, Judan, Vijaymal happened to come there. Now coming to the evidence of P.W. 3 Dinesh Yadav, one would find him narrating before the Court that he along with Rambarat. Vijaymal and Naresh reached the place of occurrence on alarm being raised by the injured but in quick succession he would state that shortly after he reached, the assailants had taken to their heels, and it was only after retreat of the assailants that Kara and Suraj came there. The evidence of P.W. 3 also suffers from infirmity in view of the fact that his attention had been drawn by the defence about he narrating before the police, the similar statement about Dilip Yadav giving blows with knife of the injured. Since the Police Officer who recorded statement of the witnesses had not been examined by the State, admittedly, statement of that witness could not be tested. Now coming to the evidence of P.W 4. Since the Police Officer who recorded statement of the witnesses had not been examined by the State, admittedly, statement of that witness could not be tested. Now coming to the evidence of P.W 4. he would State that while he proceeded to temple and was at a distance of about four steps, the assailants had taken to their heels. The statement of P.W. 4 Karu also suffered from infirmity, as his entire statement rendered before the Court about Dilip Yadav having dealt blows with knife was challenged by the defence. The authenticity of the statement of this witness rendered before the police however could not be tested as the Police Officer had not been examined at trial. Now marshalling the evidences of all the witnesses one cannot help feeling that the evidence of the witnesses rules out possibility of Bartu Yadav P.W. 2. Dinesh Yadav P.W. 3 and Karu Yadav P.W. 4 being the ocular witnesses of the incident. Now the prosecution was left with the evidence of Krishna Sao and Harihar Sao and I fail to find any infinity in their evidences to merit rejection, true it is that they are own brothers and their evidence have to be scrutinised with all caution. The evidence of these two witnesses appear to be quite natural and probable, Harihar Sao had been sleeping in his house quite adjacent to the temple and there appears to be all possibility of his witnessing the incident. The finding recorded by the doctor would unerringedly suggest that Krishna Sao suffered multiple injuries on his person and also that some of the injuries were on vital part of the person and hence the evidences of Krishna Sao P.W. 5 and Harihar Sao P.W. 1 receive complete assurance by the finding recorded by the doctor about Krishna Sao sustaining multiple injuries on his person by a sharp edged weapon. The evidences placed on the record would not fail to suggest that the injured was firstly taken to local doctor who advised him to take him to Amas Hospital but since doctor of Amas was not available injured was taken to Madanpur where his statement was recorded by the police officer. 6. The evidences placed on the record would not fail to suggest that the injured was firstly taken to local doctor who advised him to take him to Amas Hospital but since doctor of Amas was not available injured was taken to Madanpur where his statement was recorded by the police officer. 6. Though a lot of arguments have been canvassed at Bar on behalf of the appellants, that the allegation attributed to the appellants did not attract mischief of Section 307 of the Indian Penal Code in view of the injury being superfluous in nature, this fact cannot be lost sight of that a person is criminally responsible for an attempt to commit murder where with intention and knowledge requisite to the commission, he has done the last proximate act necessary to constitute complete offence which is prevented for some intervening circumstances (sic) consistently laid down by the Hon ble Courts that it is not necessary that particular injury capable of causing death should have been inflicted and only because the injury was not vital, it could not be said that it would not constitute offence under Section 307 of the Indian Penal Code. It is for the Court to consider as to whether the act irrespective of result was with the intention or knowledge to commit murder. This does not require repetition that the nature of weapon used the manner in which it is used motive for the crime, severity of blow the part of body where injuries are inflicted are some of the factors that may be taken into consideration to determine the intention of the assailants. Though the injuries were superfluous in nature, there is no chain saying the fact that injuries were multiple in nature. The victim had been sleeping in the night in a lonely place and the assailants had chosen that hour to assault him. Though suggestions were given to the witnesses that the injuries were sustained by the injured in course of decoity however except bald suggestion given to the witnesses, no such tangible evidence had been brought on the record to accept the contention raised on behalf of the appellants. 7. Though suggestions were given to the witnesses that the injuries were sustained by the injured in course of decoity however except bald suggestion given to the witnesses, no such tangible evidence had been brought on the record to accept the contention raised on behalf of the appellants. 7. Having given my bestowed consideration to the evidences placed on the record the contentions raised on behalf of the appellants and attending circumstances of the case I find that the finding recorded by the trial Court was based on meticulous appreciation of evidences in recording conviction against the appellants under Section 307 of the Indian Penal Code. However, there appears to be one mitigating circumstance which deserves consideration. It seems that on similar set of evidence while Naresh Yadav was let of by the police, Ram Swarup Yadav was put on trial. Accusation attributed to Naresh Yadav was about catching hands of Krishna Sao, Ram Swarup Yadav is not suggested to be assailant and only inference can be drawn in given circumstances of the case was that he facilitated commission of assault on Krishna Sao by Dilip Yadav and even though he was convicted under Section 307 of the Indian Penal Code simplicitor. As such while conviction recorded against Ram Swarup Yadav under Section 307 IPC is set aside he is convicted under Section 307 read with Section 34 of IPC. 8. Regard being had to the facts of the case and the discussions made above, while sentence imposed on Dilip Yadav is reduced to a period of four years, the sentence of Ram Swarup Yadav who has been convicted under Section 307 with aid of 34 of the Indian Penal Code, is reduced to the period already undergone by him. He is, however sentenced to pay a fine of Rs. 1000/- (one thousand), in default of which he will suffer imprisonment for six months and with these modification in the period of sentence, the appeal is dismissed.