JUDGMENT Hon’ble Mrs. Poonam Srivastav, J.—The instant appeal preferred against judgment and order dated 26.2.1981 passed by Vth Additional Sessions Judge, Azamgarh, convicting appellant under Section 307, I.P.C. and sentencing him to undergo three years R.I. 2. The occurrence is alleged to have taken place in the evening of 15.5.1978. Injured Rajmani Pandey went to ease himself at the outskirts of Abadi. While he was returning, he was attacked by the two accused, who came out from house of accused Lalta. Accused Lalta had a spear while Brahmadeo had a Lathi. Lalta gave spear blow on the chest of Rajmani Pandey with an intention to kill him on exhortation of Brahmadeo. 3. Eye-witnesses examined are Rajmani Pandey PW-1, Ram Jiyawan PW-2 who is said to have arrived at the scene of occurrence. Jhillu @ Zilajeet PW-3 was accompanying PW-2. He rushed to rescue the injured. 4. Injury of Rajmani Pandey, examined by Dr. A.K. Banerjee, on 15.5.1978 at 11:00 pm. is quoted below : B/B Constable Sri Kumbh Nath Tewari No. 89 C.P. of P.S. Kotwali, Azamgarh. M.I. Scar 2 cm x 1 ½ cm on the inner & middle part of left thigh. 1. Punctured wound 1 cm x ½ cm x chest cavity deep (?) or middle of the chest in front; slightly to the right of middle line 8 cm inner to the right nipple and 1 cm. outer and right to middle line of the chest (margins clean cut), bleeding present. (1) Injury kept under observation. (2) Caused by sharp edged pointed weapon. (3) Duration fresh. Advised X-ray of the chest. G.C. fair. X-ray report of Rajmani Pandey is also quoted below: M.I. Scar 2 cm. x ½ cm. on the inner & middle part of left thigh by six. X-ray chest P.A. view. Bony cage normal. Media sternum central. Both costophreine angles clear. Lung parenchyma normal. Heart normal. 5. Dr. A.K. Banerjee was examined as PW-5, who has reported injury to be grievous because of seat of injury which is on the chest. However, injuries sustained by the injured and examined by the doctor, are reported to be simple in nature. 6. The accused has stated that he has falsely been implicated due to enmity. Accused Brahmdeo was assigned role of giving Lathi blows to the injured. He is said to have exhorted Lalta to kill the injured. However, injuries sustained by the injured and examined by the doctor, are reported to be simple in nature. 6. The accused has stated that he has falsely been implicated due to enmity. Accused Brahmdeo was assigned role of giving Lathi blows to the injured. He is said to have exhorted Lalta to kill the injured. He has been acquitted on the same evidence since there was no Lathi injury on the body of injured. 7. I have heard and considered arguments of counsel for appellant, learned A.G.A. for the State and I have perused and scrutinized documentary evidence, statement of witnesses, doctor and the Investigating Officer. The defence has disputed place of occurrence and presence of eye witness Rajmani Panday, PW-1. Who has admitted that he has a house in Azamgarh city, therefore, there was no need for him to be present in village. Besides, no blood stained earth was recovered from place of occurrence though the injured have received spear blows. I am not in agreement to this argument of defence as admittedly they had gone to attend function to be held in the house of Ram Jiyawan where Jillu and other persons assembled. Therefore, merely because he has a house in Azamgarh city is not sufficient to doubt presence of the injured witness. The Investigating Officer stated that he had visited place of occurrence after four days of incident and, therefore, no blood was detected. This explanation appears to be satisfactory also. Injuries reported by doctor are simple in nature. Therefore, no recovery of blood stained earth, cannot altogether negate occurrence especially when injuries were examined promptly and proved by doctor. However, injuries are reported to be simple in nature and weapon used was spear. It is difficult to arrive at a conclusion that intention of the accused was to cause death. Therefore, it cannot be said to be a case of an attempted murder. 8. I am of definite opinion that appellant should have been convicted under Section 324, I.P.C. and not under Section 307, I.P.C. since injuries are reported to be simple in nature. I cannot lose sight of the fact that the accused who has been acquitted on the basis of same evidence, was falsely implicated in the present case. Justification of accused Lalta in convicting him under Section 307, I.P.C. does not appear to be proper. Conviction under Section 307, I.P.C. is uncalled for. I cannot lose sight of the fact that the accused who has been acquitted on the basis of same evidence, was falsely implicated in the present case. Justification of accused Lalta in convicting him under Section 307, I.P.C. does not appear to be proper. Conviction under Section 307, I.P.C. is uncalled for. Accused Lalta deserves conviction under Section 324, I.P.C. 9. The judgment and order dated 26.2.1981 passed by Vth Additional Sessions Judge, Azamgarh, so far conviction under Section 307, I.P.C. is not sustainable. In my view, conviction under Section 324, I.P.C. will meet the ends of justice. The instant appeal is partly allowed. Sentence of three years R.I. is reduced to the period already undergone by him. However, he is liable to pay fine of Rs.1000/-. In default of fine, he shall undergo four months imprisonment. ————