JUDGMENT : R.N. Biswal, J. - The Appellants call in question the judgment and order dated 3.3.1993 passed by the Asst. Sessions Judge, Khurda in S.T. Case No. 20/77 of 1991 convicting all of them under Sections 148/324/307/149 of I.P.C. and sentencing each of them to undergo R.I. for two years for each of the offences under Sections 148/324 of I.P.C. and R.I. for 8 years with fine of Rs. 1,000/- and in default of payment of fine to undergo S.I. for three months more the offence u/s 307 of I.P.C. all read with Section 149 of I.P.C. and further convicting Appellant Nos. 5 and 9 for the offence u/s 323 of I.P.C. and sentencing each of them to undergo R.I. for one year more. The sentences were directed to run concurrently. 2. The prosecution case in nub is that on 3.4.1989 during early hour of the night, to be more specific at 7.30 P.M., while P.W.3 of village Dighiri was returning home on a cycle from Bhimapada Bazar, on the way, near the house of Appellant No. 7, Appellant No. 5 stroke 4 Lathi blows on his back. In the meantime Appellant Nos. 1 (since dead), 2, 3 and 6 instigated him to do away with his life. To save his life while he was speeding away, Appellant No. 4 inserted a stick on the front wheel of his cycle and consequentially as he fell down, Appellant No. 8 pierced a Bhali on his right leg, Appellant No. 5 assaulted on his left hand with a lathi and Appellant No. 4 again dealt several lathi blows on his back. It is further alleged that Appellant No. 8 again pierced the Bhali on his head and since P.W.3 fell down with severe bleeding injuries and made groaning sound, thinking him to be dead, the miscreants left the spot. P.W.4 who claimed to have seen the entire incident rushed to the house of injured and intimated this fact to his family members, including his son P.W.5. Immediately P.W.5 came running to the spot and finding the injured in precarious condition, with the help of some gentlemen of his village shifted him to his house, scribed the F.I.R. (Ext. 2) on being dictated by the injured and lodged it before the O.I.C. of Bolgarh Police Station (P.W.7) in his village. Immediately P.W.5 came running to the spot and finding the injured in precarious condition, with the help of some gentlemen of his village shifted him to his house, scribed the F.I.R. (Ext. 2) on being dictated by the injured and lodged it before the O.I.C. of Bolgarh Police Station (P.W.7) in his village. On receiving the F.I.R. P.W.7 sent it to the Police Station for registration of the case and took up investigation. The then A.S.I. of Bolgarh Police Station registered the case and drew formal F.I.R. In course of investigation, P.W.7 examined the witnesses, sent the injured, under requisition to Bolgarh Hospital for his examination and treatment, seized some incriminating materials, searched for the accused persons, but could be successful in apprehending only Appellant No. 1 (since dead) and Appellant No. 2; the other accused-Appellants surrendered before the Court. After completion of investigation, the O.I.C. submitted charge sheet against all the accused-Appellants. The case having been committed to the Court of Session, it was transferred to the file of Asst. Sessions Judge, Khurda for trial and accordingly she framed charge under Sections 148/323/324/307 all read with Section 149 of I.P.C. against the accused-Appellants and on their denial to the charges, they faced the trial. The plea of the accused persons was complete denial of their involvement in the crime in question. It was their further plea that at the behest of P.W.3 some of his supporters set fire to the house of accused-Appellant No. 2 and to save them from the criminal liability of arson, the present case was falsely initiated. 3. In order to bring home the charges levelled against the accused-Appellants, prosecution examined 10 witnesses as against none by the defence. After assessing the evidence on record, the trial Court found the prosecution to have proved the charge under Sections 148/324/307/149 of I.P.C. against all the accused-Appellants and u/s 323 of I.P.C. against Appellant Nos. 5 and 9 and as such convicted and sentenced them thereunder as stated earlier. Being aggrieved with the aforesaid judgment and orders of conviction and sentence, the accused persons have preferred the present appeal. During pendency of the appeal, Appellant No. 1 expired for which the appeal concerning him was abated vide order dated 13.12.2007. 4. Learned Counsel appearing for the Appellants submitted that as borne out from the evidence on record there was party faction in the occurrence village. During pendency of the appeal, Appellant No. 1 expired for which the appeal concerning him was abated vide order dated 13.12.2007. 4. Learned Counsel appearing for the Appellants submitted that as borne out from the evidence on record there was party faction in the occurrence village. P.W.3 the injured was leader of one group and Appellant No. 2 was leader of the other group. There was also a proceeding u/s 107 of Code of Criminal Procedure between the two groups. Just before the occurrence in the present case, a report was lodged by Appellant No. 2 before P.W.7 alleging that the group headed by P.W.3 set fire on his house and accordingly a case was registered. So, the trial Court ought have carefully scrutinized the evidence of the interested and partisan witnesses before recording an order of conviction against the accused-Appellants. He further submitted that even if there was no material at all against Appellant Nos. 2, 3 and 6, showing that they instigated the co-accused to do way with the life of P.W.3, the trial Court convicted them u/s 148/324/307 with the aid of Section 149 of I.P.C. which is per se illegal. It was further submitted by learned Counsel for the Appellants that except the injured, P.W.3 himself and P.W.4 there was no other eye witness to the occurrence. The evidence of those two witnesses are self contradictory and differ from each other on material particulars, so the trial Court ought not have convicted any of the Appellants. At last, learned Counsel for the Appellants submitted that even if the entire allegation of the prosecution is accepted to be true, still then a case u/s 307 of I.P.C. cannot be made out against the accused-Appellants. Under all these grounds he urged to allow the appeal. On the other hand, the Addl. Government Advocate supported the impugned judgment. 5. During cross-examination, it was elicited from P.W.4 that Appellant No. 2 belonged to one group and he himself belonged to the group of P.W.3. He further stated that his son, Pravat Kumar Pradhan was an accused in the arson case and also a party in a proceeding u/s 107 of Code of Criminal Procedure where Appellant No. 2 and others were Opp. parties. It further transpires from the evidence of P.W.3 that he is a leader of Congress Party in his village. He further stated that his son, Pravat Kumar Pradhan was an accused in the arson case and also a party in a proceeding u/s 107 of Code of Criminal Procedure where Appellant No. 2 and others were Opp. parties. It further transpires from the evidence of P.W.3 that he is a leader of Congress Party in his village. So, it is clear that there was party faction in the occurrence village. Under such circumstances, the trial Court ought to have scrutinized the evidence with much care caution, Where there is party faction in a village, very often prosecution witnesses try to entangle innocent persons in a crime. Where there is party faction in a village, very often prosecution witnesses try to entangle innocent persons in a crime. In the present case, it transpires from the evidence of P.Ws. 3 and 4 that Appellant Nos. 2, 3 and 6 instigated the co-Appellants to do away with the life of P.W.3 but P.W.3 himself had not stated so before the I.O.; as such that part of his evidence cannot be relied upon. Where there is no reliable evidence in this regard from the side of the injured (P.W.3) himself, the trial Court ought not have convicted those three accused-Appellants, particularly when exhortation is considered to be a weak piece of evidence, as such the order of their (Appellant Nos. 2, 3 and 6) conviction deserves to be set aside. 6. As regards the other Appellants, admittedly, besides the injured (P.W.3) there was only one witness i.e., P.W.4 to the occurrence. It transpires from the evidence of P.W.3 that Appellant Nos. 5 and 9 dealt several lathi blows on him for which he sustained fracture injury on the left side scapula and left hand fingers. It further transpires from his evidence that Appellant No. 4 thurshed a lathi to the wheel of his cycle for which he fell down. Appellant No. 7 inflicted a Farsa blow on his left leg causing injury, and Appellant No. 8 dealt several Bhali blows on him including on his left side head and right leg. Learned Counsel for the Appellants submitted that P.W.3 had not states before the I.O. about the assault on him in detail, so his evidence ought not have been accepted. The evidence of P.W.3 has been corroborated by F.I.R. and the evidence of P.W.3 in material particulars. Learned Counsel for the Appellants submitted that P.W.3 had not states before the I.O. about the assault on him in detail, so his evidence ought not have been accepted. The evidence of P.W.3 has been corroborated by F.I.R. and the evidence of P.W.3 in material particulars. Besides the ocular evidence, it is found from the evidence of P.w. 10, the Doctor that on 3.4.1989 while he was medical officer of Bolgarh Hospital, on police requisition he examined P.W.3 and found two V shaped incised wounds on his left leg and V shaped incised injury on the dorsum of the left hand. He also noticed two lacerated injuries, six bruises of different size and one suspected fracture on the proximar phalanx of second and third finger of left side. He referred the injuries to Orthopaedic Specialist for X-ray and opinion. All those injuries, except the suspected fracture were simple in nature. He also deposed that the three incised injuries found on the left leg and dorsum of the left hand of the injured could be possible by Farsa or Bhali. On perusal of the evidence of P.W.9, the then Specialist of Capital Hospital, Bhubaneswar, it is found that on 3.4.1989, the O.I.C. of Bolgarh Police Station, (P.W.7) forwarded the injury report of P.W.3 for his opinion in respect of injury No. 12. Accordingly, he took three x-rays of the said injury, he also took x-ray of injury Nos. 7 and 9. P.W.9 as per his report, Ext. 7 stated that there was fracture of phalanx of left hand corresponding to injury No. 12. So it is established that P.W.3 sustained fracture on phalanx of left hand. The ocular evidence of P.Ws. 3 and 4 having been corroborated by medical evidence, it can be said that due to the assault, P.W.3 sustained simple incised injuries and one fracture. No doubt, the evidence of interested and partisan witnesses should be accepted with grain at salt but when such evidence is corroborated by medical evidence as in the present case, the same cannot be brushed aside. So in my considered opinion due to the assault made by Appellants Nos. 4, 5, 7, 8 and 9, P.W.3 sustained several injuries. 7. No doubt, the evidence of interested and partisan witnesses should be accepted with grain at salt but when such evidence is corroborated by medical evidence as in the present case, the same cannot be brushed aside. So in my considered opinion due to the assault made by Appellants Nos. 4, 5, 7, 8 and 9, P.W.3 sustained several injuries. 7. Now, the pertinent question is, whether the action of those Appellants can attract the offence u/s 307 of I.P.C. When any act is done with the intention of causing death or with the knowledge of its likelihood of causing death, but the victim is providentially escaped, the offence u/s 307 of I.P.C. can be attracted. What is material is the intention or knowledge and not the consequence of the actual act done. Such intention or knowledge can be drawn from the nature of weapon used, manner in which it is used, severity of the blow, the part of the body where injury is inflicted etc. In the case at hand, as discussed earlier, except injury No. 12 all other injuries sustained by P.W.3 were simple in nature. Injury No. 12 was caused on the phalanax which is not a vital part of the body. None of the other injuries was also caused on any vital part of the body. It transpires from the evidence of P.W.3 that on protest of P.W.4 the Appellants fled away from the spot, but since he had not stated like that before the I.O., it cannot be relied upon. The accused persons were 9 in number and some of them were armed with dangerous weapons like Bhali and Farsa. Had they actually intended to do away with the life of P.W.3, they could have easily achieved their goal. So, from the facts and circumstances of the case, it appears that the Appellants had the intention to assault P.W.3 and not to do away with his life. As such the offence u/s 307 of I.P.C. cannot be attracted against them. As per the prosecution case on the alleged date and time of occurrence, while P.W.3 was returning home on a cycle, he saw the accused-Appellants, except the Appellants against whom there was the allegation of exhortation only, standing in front of the house of P.W.7 being armed with Lathi, Bhali and Farsa. Appellant Nos. As per the prosecution case on the alleged date and time of occurrence, while P.W.3 was returning home on a cycle, he saw the accused-Appellants, except the Appellants against whom there was the allegation of exhortation only, standing in front of the house of P.W.7 being armed with Lathi, Bhali and Farsa. Appellant Nos. 5, 7, 8 and 9 assaulted P.W.3 when he fell down from his cycle as Appellant No. 4 inserted a stick on the front wheel of his cycle. So it can safely be held that those Appellants were members of an unlawful assembly and being armed with deadly weapons in prosecution of their common object to cause grievous injuries on the person of P.W.3 assaulted him and accordingly, they would be liable for the offence under Sections 148/326/149 of I.P.C. When they are found guilty under Sections 148/326/149 of I.P.C, none of them should be liable for the offence under Sections 324/323 of I.P.C. So the order of conviction as passed by the trial Court, so far the offence u/s 307 of I.P.C. is concerned is altered to one u/s 326 of I.P.C. and the order of conviction under Sections 324/323/149 of I.P.C. passed by the trial Court is hereby set aside. 8. The occurrence took place on 3.4.1989, the Appellants faced the ordeal of trial till 3.3.1993, when the judgment of the trial Court was pronounced. The present appeal is pending before this Court since 1993. The order of conviction and sentence has been hovering round the head of Appellant Nos. 4, 5, 7 to 9 since one and a half decade. It is submitted by learned Counsel for the Appellants, that those Appellants were inside jail from 3.3.1993 to 26.1.1994 in connection with the present case. In my considered opinion if the Appellant Nos. 4, 5, 7, 8 and 9 are sentenced to undergo imprisonment for the period they have already been put inside jail, it would meet the ends of justice. Accordingly they are sentenced under Sections 148/326/149 of I.P.C. to undergo imprisonment for the period, they have already been put inside jail. The period of imprisonment suffered by Appellant Nos. 4, 5, 7, 8 and 9 in the present case is set off. The appeal in respect of the Appellant Nos. Accordingly they are sentenced under Sections 148/326/149 of I.P.C. to undergo imprisonment for the period, they have already been put inside jail. The period of imprisonment suffered by Appellant Nos. 4, 5, 7, 8 and 9 in the present case is set off. The appeal in respect of the Appellant Nos. 2, 3 and 6 is allowed and they are acquitted of the offence under Sections 148/324/307 of I.P.C. Accordingly, the appeal is allowed in part.