JUDGMENT P. K. TRIPATHY, J. — Having been convicted by learned Addl. Sessions Judge, Bolangir in Sessions Case No. 11/1 of 1988 under Section 307/34, I.P.C. as per the impugned judgment dated 31.3.1988 appellants have preferred this appeal. 2. As it reveals from the impugned judgment and the evi¬dence on record that on 7.6.1987 at about 7 A.M. there was a quarrel and mutual fight between the prosecution party and the appellants on a piece of land in Bhadrapali locally known as ‘Amtibahali Tangar Danga Duli’. In that mutual fight both the parties sustained injuries and there were F.I.R. and counter F.I.R. The case in which the appellants are the accused persons that was registered as G.R. Case No. 239 of 1987 and after com¬mitment that was registered as above noted Sessions Case No. 11/1 of 1988 whereas the criminal case in which the appellants party was the informant was registered as G.R. Case No. 240 of 1987. 3. According to the prosecution allegation P.Ws.1,2,3 and 9 sustained injuries. Amongst them P.W.9 sustained stab blow on the abdomen which was found to be grievous by the Doctor as per the evidence of Doctor Chittaranjan Sadangi (P.W.7) and Ext.4. Similarly, P.W.2 sustained incised injury as per injury No. 4 in the injury report Ext. 5, but that injury was simple in nature. 4. As noted above, appellants took the plea of mutual fight and relied on documents such as the F.I.R. (Ext.A), Charge¬sheet (Ext.B) and the documents relating to treatment and injury report (Exts. C to F) with respect to all the four appellants. 5. On assessment of such evidence on record trial Court while accepting the contention relating to a mutual fight found the appellants guilty of the offence under Section 307/34, I.P.C. notwithstanding no explanation by the prosecution of the injuries suffered by the appellants on the ground that such injuries suffered by the appellants were minor and superficial. The trial Court found that the prosecution evidence proves the guilt of the accused persons for attempting to commit murder of P.W.9 and in that process inflicting injuries to others. 6. Learned counsel for the appellants draws attention of the Court to some minor discrepancy in the evidence of injured persons (P.Ws) in support of his argument to grant a benefit of doubt arising out of the same. 6. Learned counsel for the appellants draws attention of the Court to some minor discrepancy in the evidence of injured persons (P.Ws) in support of his argument to grant a benefit of doubt arising out of the same. After going through the evi¬dence vis-a-vis the allegation against the appellants, this Court does not find any glaring contradictions so as to disbelieve such evidence relating to the occurrence. Apart from that, when it is the admitted case of the defence regarding a mutual fight, a contradiction relating to the consequence of assault is not of great importance so as to grant any benefit out of that to the appellant. 7. Learned counsel for the appellants also invites attention of the Court to the injuries sustained by the appel¬lants and states that when each of them had suffered number of injuries no-explaining the same affects credibility of the prose¬cution witnesses. It is seen from the injury report (Exts. C to E) that each of the appellants suffered some lacerated injuries, swelling or abrasion, all of which were simple in nature. The prosecution witnesses should have explained the same. Non-expla¬nation of the injuries by them only amounts to suppressing that part of the occurrence by them in which they dealt blows. For that reason, the prosecution evidence cannot be ignored in which they have explained about the injuries sustained by them. It is the normal human temperament not to make a statement by inculpating self. Therefore, it is the duty of the Court to assess and appre¬ciate the evidence accordingly. The trial Court having done the job in proper manner in that respect, therefore, non-explaining the injuries of the appellants by the prosecution witnesses, so far as the present case is concerned, does not make the prosecu¬tion case doubtful or the evidence of P.Ws. unacceptable. In other words, this Court concurs with the finding relating to the injuries inflicted by the appellants on P.Ws. 1,2,3 and 9. 8. Learned counsel for the appellants next argues that a case of attempt to murder is not made out from the evidence of P.W.9 or any of the eye-witnesses to the occurrence read with the evidence of the Doctor (P.W.7) and the injury certificate (Ext.4) or the injuries sustained by P.Ws.1, 2 and 3. 1,2,3 and 9. 8. Learned counsel for the appellants next argues that a case of attempt to murder is not made out from the evidence of P.W.9 or any of the eye-witnesses to the occurrence read with the evidence of the Doctor (P.W.7) and the injury certificate (Ext.4) or the injuries sustained by P.Ws.1, 2 and 3. Learned Standing Counsel though advances argument supporting the impugned judgment but he is unable to satisfy this Court as to from which evidence the Court below could come to a conclusion that the injuries which P.W.9 sustained or any other injured sustained was sufficient in ordinary course of nature to cause the death or likely to cause the death. In that process learned Standing Counsel even advances the alternative argument that if not a conviction under Sec. 307/34, I.P.C. at least conviction should be made under Sect 326, I.P.C. 9. Regard being had to the aforesaid argument of both the parties, this Court refers to the evidence on record as well as the position of law in Section 307, I.P.C. besides the provision of law in Sections 319 to 326, I.P.C. Section 299, I.P.C. defines ‘Culpable homicide’ and Section 300 defines the offence of ‘mu¬rder’. In the instant case, the intention to cause death or intention to cause such bodily injury as is likely to cause death or the knowledge that the bodily injury caused is likely to cause death has not at all been proved by the prosecution through any evidence that has been tendered. Under such circumstances, a case of attempt to murder is not proved on record. “Grievous hurt” has been defined in Section 320, I.P.C. While admitting about the absence of the first to seventh categories, learned Standing Counsel relies on the 8th category in which it has been defined that “any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain or unable to follow his ordinary pursuits” amounts to grievous hurt. So far as the bodily injuries are concerned, P.W.1 sustained five external injuries, three of whom were lacerated wounds on the parietal and occipital region and two were abrasions on the eye-brows. With respect to the first three injuries, though P.W.1 was referred for X-ray, but no report has been proved on record that such injuries were grievous. So far as the bodily injuries are concerned, P.W.1 sustained five external injuries, three of whom were lacerated wounds on the parietal and occipital region and two were abrasions on the eye-brows. With respect to the first three injuries, though P.W.1 was referred for X-ray, but no report has been proved on record that such injuries were grievous. On the other hand, the Doctor (P.W.4) has stated in his evidence that injuries Nos. 4 and 5 were simple in nature. It appears from injury report (Ext.3) that P.W.3 sustained a lacerated wound on the left eye-brow and two bruises on the face and all the injuries were simple in nature. It appears from Ext. 5 that P.W.2 sustained two lacerated wounds, two incised wound and one bruise respectively on the parietal region, right eye and left shoulder and all such injuries were simple in nature. It appears from injury report (Ext.4) that P.W.9 sustained one incised wound and one abrasion. So far as the incised wound is concerned, the dimension was ½" x ¼" on the right side abdomen 2" lateral to midline and 1" below right costal margin. Opinion was reserved with respect to that injury but no further opinion from the medical experts has been proved on record regarding grievousness of that injury. P.W.7 who granted the injury certificate simply stated that, that injury was grievous. P.Ws. 4, 5, 6 and 7 the four Doctors examined by the prosecution have not given their evidence stating the duration or period of treatment of any of the injured. None of the Doctor have stated that the injury sustained by any of the aforesaid injured was sufficient in ordinary course of nature to cause death or was likely to cause death because of the gravity of the injuries. In that respect, P.Ws.1, 2, 3 and 9 in their respective evidence have also not stated anything regarding the duration of period of their respective treatment in the hospital. Under such circumstance, a case of attempt to murder as punisha¬ble under Sec. 307, I.P.C. has not been proved. Similarly, a case of causing grievous hurt is also not proved. This aspect was not properly considered by the trial Court. In that respect, the trial Court neither examined the provision of penal law nor the nature of the evidence and the sequence and consequence thereof. Similarly, a case of causing grievous hurt is also not proved. This aspect was not properly considered by the trial Court. In that respect, the trial Court neither examined the provision of penal law nor the nature of the evidence and the sequence and consequence thereof. The trial Court simply jumped to the conclusion that since the injuries on P.Ws. 2 and 9 were stated to be grievous, therefore, a case of attempt to murder is made out. That conclusion is found contrary to the position of evidence on record and therefore not sustainable. 10. It appears from such evidence that the appellants by use of lathis and knife dealt blows and inflicted the aforesaid injuries on P.Ws.1,2,3 and 9. Therefore, when a case of grievous hurt is not proved by the prosecution the injury caused on the body of the said four witnesses amounts to simple hurt and pun¬ishable under Sec. 324, I.P.C. Under such circumstance, the order of conviction under Sec. 307/34, I.P.C. is modified to a conviction under Sec. 324/34, I.P.C. 11. Admittedly, there was a free fight between the parties relating to a land dispute and they were related by blood. There is nothing on the lower Court records and connected Case Diary about any criminal antecedents against the appellants. Apart from that, the dispute arose and the occurrence took place about 15 years back. regard being had to such facts and circumstances, this Court feels it proper to not to impose any substantive sentence of imprisonment as the first preference. Taking that view in the matter, it is ordered that for their conviction under Sec. 324,34, I.P.C. each of appellants is sentenced to pay a fine of Rs. 1,000/- (one thousand) and in default to undergo rigorous im¬prisonment for six months. In the event of payment of fine, half of the amount be paid to P.W.9 and the rest amount to P.Ws.1, 2 and 3 by granting equal sum. 12. The Crl. Appeal is accordingly allowed in part by way of modifying the order of conviction and sentence. Crl. appeal allowed in part