Judgment ( 1. ) BY this judgment Criminal Appeal No. 334/02 arising out of the same impugned judgment filed on behalf of other accused namely Vikas machle is also being decided. ( 2. ) THE appellants of both the appeals have filed their appeals under Section 374 of the Code of Criminal Procedure being aggrieved by the impugned judgment dated 24/5/02 passed by the 12th Additional Sessions Judge, Gwalior in S. T. No. 413/99 convicting the appellant Kamal Singh of Criminal Appeal No. 254/02 for the offence under section 307 of the Indian Penal Code with the sentence for five years R. I. with fine of rs. 2,000/- while the appellant Vikas Machle of Criminal Appeal No 334/02 has been convicted under Section 307/34 of I. P. C. and punished with only fine of Rs. 8,000/- by the principal Magistrate of the Juvenile Court, gwalior vide impugned judgment dated 12/ 6/02. ( 3. ) THE facts giving rise to this appeal in short are that on dated 21/3/99 at about 10-40 in the morning, Sanjay Sharma (PW-6)accompanied with Pramod Singh, Deepak and Shailendra Singh lodged the first information report (Ex. P/12) at Police Station Morar, District Gwalior to the effect that he is a student of 10th Class in Amar jyoti Convent School situated in Suresh nagar. One Kulwant Rawat is also studying in the same school with him. Kulwant rawat always used to insist him to spend some money unnecessarily in the school. On asking him not to do the said thing, the complainant was threatened by Kulwant Rawat that if he will not spend sums then he will put him in the bad condition. Such threatening was not taken seriously by the complainant. Thereafter, it is alleged that today at about 10-15 in the morning in front of the school the said Kulwant Rawat came along with appellant Kamal Andewala to the complainant-Sanjay Sharma. Then the complainant was caught hold by Kulwant rawat and appellant Kamal Andewala inflicted a blow of knife in his stomach. Resultantly on sustaining injury, bleeding was started. The complainant was rescued by Pramod, Deepak and Shailendra Singh. The said blow was given by the appellant kamal Andewala to cause his death. Mohammad Yusuf and appellant Vikash machle were insisting the aforesaid co-accused for beating the complainant. Resultantly on sustaining injury, bleeding was started. The complainant was rescued by Pramod, Deepak and Shailendra Singh. The said blow was given by the appellant kamal Andewala to cause his death. Mohammad Yusuf and appellant Vikash machle were insisting the aforesaid co-accused for beating the complainant. After registering the offence the victim was sent to the hospital whereafter preparing his mlc report some surgery of alleged injury was carried out. After holding investigation, the charge-sheet for the offence under Sections 307, 341/34 of I. P. C. was filed against both the appellants and. other co-accused namely Mohammad Yusuf. One of the co-accused namely Kulwant Rawat was shown to be absconded in the aforesaid charge-sheet. As per procedure, the case was committed to the Court of Sessions where the charge for commission of offence under Section 307/34 of I. P. C. was framed against appellant Vikas Machle while the appellant kamal Andewala was charged for the offence under Section 307 and in alternative under Section 307/34 of I. P. C. They abjured the same. On which the evidence was recorded. On appreciation of the same, the appellants along with other co-accused are convicted as mentioned above. ( 4. ) SHRI S. K. Kapse learned appearing counsel for the appellant Kamal Singh argued that on proper appreciation of the prosecution evidence it is revealed that the alleged offences are not made out against the appellant. In continuation of it, he said that the story put forth by the victim Sanjay sharma is not reliable as the same has not been supported by any independent witnesses. By referring the deposition of pramod (PW-2), Shailendra Singh (PW-3), and Deepak (PW-4) he said that all the alleged eye-witnesses had turned hostile at the trial. Thus, it is submitted by him that merely on the basis of the statement of complainant Sanjay Sharma, the appellant could not have been convicted by the trial court. The memorandum recorded under section 27 of the Evidence Act and in pursuance of it prepared seizure-memo are also challenged. In such premises, firstly he prayed for acquittal of the appellant. Thus, it is submitted by him that merely on the basis of the statement of complainant Sanjay Sharma, the appellant could not have been convicted by the trial court. The memorandum recorded under section 27 of the Evidence Act and in pursuance of it prepared seizure-memo are also challenged. In such premises, firstly he prayed for acquittal of the appellant. In alternative, he said that looking to the scenario of the incident and the nature of the injury sustained by the victim on proper appreciation of available medical evidence the alleged injury on the stomach could not be termed to be sufficient to cause death of the victim in the ordinary course of nature. In such premises, the case would not fall under Section 307 of I. P. C. and in any case, the appellant could not be convicted for more than the offence of under Section 324 of i. P. C, and prayed for such modification/alteration by allowing his appeal. ( 5. ) SO far as appellant Vikas Machle is concerned, his learned counsel Shri Arun barua by referring the first information report (Ex. P/12), said that at the initial stage on lodging this FIR, no such allegation about committing any act with the victim Sanjay sharma by this appellant Vikas Machle is mentioned but subsequently on recording the evidence of the complainant Sanjay sharma he has made such allegation against him. Learned counsel referred to para 14 of the cross-examination of complainant Sanjay Sharma (PW-6) and said that on the basis of the subsequent development at the trial which is contrary to the initial story of the prosecution mentioned in the FIR (Ex. P/12), this appellant could not have been convicted by the trial court. In fact, the trial court ought to have acquitted him. With this submission, he prayed for setting aside the conviction and sentence of this appellant by allowing his appeal. ( 6. ) ON the other hand, responding the aforesaid arguments of the appellants counsel Shri M. P. S. Bhadoriya, learned Government Advocate for the respondent/state said that the alleged conviction of the appellants and their respective sentences are based on proper appreciation of the evidence and the same are also in conformity with law. ( 6. ) ON the other hand, responding the aforesaid arguments of the appellants counsel Shri M. P. S. Bhadoriya, learned Government Advocate for the respondent/state said that the alleged conviction of the appellants and their respective sentences are based on proper appreciation of the evidence and the same are also in conformity with law. He stated that the impugned judgment does not require any interference either for acquittal or for any modification/alternation in the sections in which the appellants have been convicted and prayed for dismissal of this appeal. ( 7. ) HAVING heard learned counsel for both the parties, I have examined the record of the trial court and also perused the impugned judgment. In the available facts and circumstances, I am of the view that the appellant Kamal Singh has been wrongly convicted under Section 307 of I. P. C. which requires modification/alternation in some other section in which lesser punishment is provided while the conviction of appellant vikas Machle is not sustainable in the eye of law. ( 8. ) IT is apparent from the perusal of the fir (Ex. P/12) that the same was lodged by the victim Sanjay Sharma (PW-6) only after 25 minutes from the alleged incident in which the names of the appellants along with other co-accused namely, Kulwant rawat and Mohammod Yusuf are also mentioned. The presence of the witnesses pramod, Deepak and Shailendra Kumar are also shown on the spot in it. As per the averments of it, the victim Sanjay Sharma was first caught hold by Kulwant Rawat and at the same time the blow of knife was given by Kamal Andewala, the appellant in his stomach. No allegation regarding attribution of any act by the appellant Vikas machle is mentioned in it. As per the FIR (Ex. P/12) said appellant Vikas Machle and mohammad Yusuf were assisting Kamal andewala in beating of the complainant. ( 9. ) AT trial, by proving the FIR (Ex. P/12)Sanjay Sharma (PW-6) the victim has deposed that on the aforesaid date and time he was caught hold by appellant Vikas. Machle and co-accused Mohammad Yusuf in front of the gate of his school, at the same time appellant Kamal Andewala gave a blow of knife in his stomach. ( 9. ) AT trial, by proving the FIR (Ex. P/12)Sanjay Sharma (PW-6) the victim has deposed that on the aforesaid date and time he was caught hold by appellant Vikas. Machle and co-accused Mohammad Yusuf in front of the gate of his school, at the same time appellant Kamal Andewala gave a blow of knife in his stomach. So far causing the aforesaid injury by means of knife by Kamal andewala is concerned, this witness has stated the fact as mentioned in the FIR. But, his testimony stating that he was caught hold by appellant Vikas Machle and co-accused Mohammad Yusuf in view of earlier version of the FIR stating that he was caught hold by Kulwant Rawat, does not appear to be true or in any case such version of the witness does not appear to be reliable. It does not mean that on such ground his entire testimony should be discarded. In the available circumstances, subsequent development and modification in the story contrary to FIR could not be termed to be admissible evidence and on that basis no conviction could be held. It is apparent on record that the version of FIR causing aforesaid injury of knife by the appellant Kamal Andewala has been proved by the complainant in his deposition. The same is also supported by the other reliable circumstances and corresponding medical evidence. The same is being considered in following paras. ( 10. ) IN view of the aforesaid discussion the testimony of the complainant Sanjay sharma stating that he was caught hold by appellant Vikas Machle being inconsistent with FIR and contrary to initial prosecution case does not appear to be reliable. It appears that being student of the same school appellant Vikas Machle was also present there, but he had not committed any act against the victim. In such circumstance it is held that the conviction of the appellant vikas Machle is apparently perverse and contrary to record, the same is not sustainable, hence the same is set aside. ( 11. ) ON going through the testimonies of the alleged eye-witnesses namely, Pramod (PW-2), Shailendra Singh (PW-3) and deepak (PW-4 ), it is apparent that they had turned hostile at the trial and had not supported the story put forth by the prosecution and the victim. ( 11. ) ON going through the testimonies of the alleged eye-witnesses namely, Pramod (PW-2), Shailendra Singh (PW-3) and deepak (PW-4 ), it is apparent that they had turned hostile at the trial and had not supported the story put forth by the prosecution and the victim. Even after turning hostile by the aforesaid eye-witnesses, the testimony of the victim Sanjay Sharma (PW-6) appears to be reliable in view of the circumstance that immediately after the incident the first information report was lodged by him mentioning the names of the accused and their respective act. On sending him to the hospital the corresponding injury was found present on his person at the time of examination by Dr. Anoop Pradhan (PW-1)who prepared his M. L. C report (Ex. P/1 ). According to the deposition of the doctor, the victim sustained the incised wound in his stomach. Such fact is further supported by the depositions of Dr. Suresh Mohan tiwari (PW-9) and Dr. Girjashankar Gupta (PW-10), who carried out treatment and performed his operation. In such premises, it cannot be said that the alleged incident was not happened or the appellant Kamal andewala has not caused any injury on the stomach of the victim. In such premises, it is held that even on turning hostile by the independent witnesses in view of the aforesaid available supporting evidence, the appellants could be convicted on sole testimony of the complainant Sanjay Sharma. ( 12. ) IN view of the aforesaid discussions, it is held that the blow of knife was given by the appellant Kamal Andewala in the stomach of the victim on the aforesaid date and time and to this extent, the trial court has not committed any error in holding him guilty. Simultaneously, it is also held that in spite of having the opportunity said appellant did not give the other blow to the victim. In such premises, it could not be inferred that his intention was to kill the victim. ( 13. ) COMING to consider the nature of the injuries sustained by the victim Sanjay sharma. It is matter of record that immediately after happening the incident, the victim went to the police station from where after lodging the report he was sent to J. A. Group of Hospital, Gwalior where his MLC report (Ex. P/l) was prepared by Dr. Anoop pradhan (PW-1 ). It is matter of record that immediately after happening the incident, the victim went to the police station from where after lodging the report he was sent to J. A. Group of Hospital, Gwalior where his MLC report (Ex. P/l) was prepared by Dr. Anoop pradhan (PW-1 ). According to this report, the following injury was found on his person :-"incised wound of size 3 cm x x cm x cm, 3 cm above umbilicus over abdomen. " as per the opinion of the doctor, this injury was caused by hard and sharp object and the duration of the injury was within four hours. Subsequently, for further treatment and the opinion the victim was referred to Sr. doctors and Surgeons of J. A. Group of Hospital, Gwalior. Later on, he was operated by Dr. Girjashankar Gupta (PW-10) with the assistance of Dr. Suresh Mohan tiwari (PW-9 ). In their depositions, both these witnesses have also stated that the victim sustained the above incised injury in his stomach. They have also proved the papers of treatment from Ex. P/13 to Ex. P/13 an including the discharge-ticket (Ex. P/14 ). According to the discharge-ticket the victim remained in the hospital up to 31/3/99. According to the deposition of the doctors some perforation and the bleeding was found in the stomach of the victim, but in their entire statement they have not specifically stated that due to aforesaid injury any vital part of the body was damaged. Although, they have deposed that such injury could have caused the death of the victim if the same was not treated within time. In the lack of the aforesaid medical evidence, merely on the basis of the aforesaid opinion of the doctors the aforesaid injury could not be termed to be sufficient for causing the death of the victim in the ordinary course of nature. In such premises, the conviction of the appellant Kamal Andewala does not appear to be sustainable under Section 307 of I. P. C. My aforesaid view is fully fortified by the decision of the Apex Court in the matter of Sarju Prasad v. State of Bihar in , which it was held as under :- "it is true that the witnesses say that the appellant used a chhura. It is also true that the injury was inflicted on a vital part of the body but the fact remains that no vital organ of the body was injured thereby. Again, we do not know how big the chhura was and, therefore it cannot be said that it was sufficiently long to penetrate the abdomen deep enough to cause an injury to a vital part which would in the ordinary course of nature be fatal. The chhura could not be recovered but the prosecution should at least have elicited from the witnesses particulars about its size. We are, therefore unable to say with anything near certainty that the appellant had such intention or knowledge. Incidentally we may point out that Shankar Prasad does not say that after he released the wrist of Sushil the appellant inflicted or even tried to inflict any further injury on him. In this state of the evidence we must hold that the prosecution has not established that the offence committed by the appellant falls squarely under section 307 I. P. C. In our opinion, it amounts only to an offence under Section 324 I. P. C. " ( 14. ) IN view of the aforesaid discussion, the approach of the trial court holding the appellant Karnal Andewala guilty for commission of offence under Section 307 of i. P. C. is not sustainable in law. Instead of it, in view of the nature of the injury sustained by the victim, this appellant should have been convicted under Section 324 of i. P. C. as held in the aforesaid cited case of "sarju Prasad" (supra ). Eventually, the conviction and sentence of the appellant Karnal andewala awarded by the trial court under section 307 I. P. C. is set aside and he is convicted under Section 324 I. P. C. with punishment of the jail sentence for the period which he has already undergone i. e. , around ten months with imposition of fine of Rs. 5,000/- (Rs. Five Thousand Only ). On depositing the fine amount, Rs. 3,000/- (Rs. Three thousand Only) shall be paid to the victim sanjay Sharma towards compensation under Section 357 of Cr. P. C. by calling him in the court through summons. The amount of fine deposited under Section 307 of I. P. C. shall be adjusted in the aforesaid fine amount. ( 15. On depositing the fine amount, Rs. 3,000/- (Rs. Three thousand Only) shall be paid to the victim sanjay Sharma towards compensation under Section 357 of Cr. P. C. by calling him in the court through summons. The amount of fine deposited under Section 307 of I. P. C. shall be adjusted in the aforesaid fine amount. ( 15. ) ACCORDINGLY, the Criminal Appeal No. 254/02 filed by appellant Karnal Singh is allowed in part as indicated above while the criminal Appeal No. 334/02 filed by the appellant Vikas Machle is allowed and his conviction and sentence is hereby set aside. The amount of fine, if deposited by this appellant be refunded to him. Appeal disposed.