Judgment ( 1. ) APPELLANT has filed this appeal against the judgment dated 27th november 2002, passed by Sessions Judge, Bhopal, in Sessions Trial no. 159/2002, convicting him under Section 307 of the Indian Penal Code and sentencing him to rigorous imprisonment for five years with fine of rs. 5,000/ -. ( 2. ) IN short the facts of the case are that on 10. 2. 2002 at about 1. 30 p. m. when complainant Firoz Khan @ Chhotu alongwith his friends Vipin and vinod was going on the motorcycle, near Jain Temple in Shabri Nagar, accused Jitendra inflicted a blow by a cricket stump on his head. Other co-accused viz. Banti @ Shailendra, Sonu and Sunil also assaulted him by iron rod and by fists kicks. As a result of head injury Firoz Khan fell down. Vipin and Vinod took him to Police Station, Nishatpura, Bhopal, where he lodged fir (Ex. P/1) against the accused persons. He was sent to Hamidiya Hospital for treatment. Dr. Kutubuddin Ali (PW-6) treated him and examined his injuries. C. T. Scan examination was also done. According to C. T. Scan report, on the back side of his head, there was a large sub dural haematoma with haemorrhage. Externally there was a lacerated wound on his left parietal region of skull measuring 4 cm x 0. 8 cm. There was no bleeding. According to his report (Ex. P/7) there was also a comminuted fracture of the left parietal bone. He performed an operation of craniology with evacuation of the sub dural haematoma. About 100 c. c. of blood was removed. In his opinion, the injury was dangerous to life. ( 3. ) AFTER investigation, charge sheet was filed and case was put up for trial against the present accused, co-accused Sonu and Banti @ Shailendra. ( 4. ) THE accused persons abjured their guilt and pleaded false implication. ( 5. ) TRIAL Court mainly relying on the evidence of PW-1 Chhotu @ Firoz khan (injured), PW-2 Vipin Mishra, PW-3 Vinod Kumar and PW-6 Dr. Kutubuddin Ali held the appellant guilty of the offence under Section 307 of the Indian Penal Code. However, finding the evidence of injured and other eyewitnesses inconsistent with the medical evidence, acquitted other accused persons. ( 6. Kutubuddin Ali held the appellant guilty of the offence under Section 307 of the Indian Penal Code. However, finding the evidence of injured and other eyewitnesses inconsistent with the medical evidence, acquitted other accused persons. ( 6. ) LEARNED counsel for the appellant submitted that the evidence of injured PW-1 Chhotu @ Firoz Khan and other eyewitnesses PW-2 Vipin mishra and PW-3 Vinod Kumar was not reliable. There was material inconsistency between their evidence and the evidence of PW-6 dr. Kutubuddin Ali. The appellant was, therefore, entitled to be acquitted. He further submitted that in any case the conviction of the appellant under section 307 was not correct. At the worst, he could be held liable for the offence under Section 325 of the Indian Penal Code. Per contra, learned counsel for the State justified the judgment of the trial Court by adopting the reasonings of the learned trial Judge. ( 7. ) I have carefully considered the submissions made by the learned counsel for both the sides and perused the impugned judgment and evidence on record. ( 8. ) ON perusal of the evidence of injured Chhotu @ Firoz Khan, it is found that while he was going on the motorcycle appellant met him in the Shabri nagar near Jain Temple and after stopping him inflicted a blow by a cricket stump on his head. Though it is also stated by him that other accused also assaulted him by means of iron rod and fists and kicks, but on medical examination by Dr. Kutubuddin Ali (PW-6), except one injury on head, no other injury was found on his body. It is also found in his evidence that 10-12 days prior to the occurrence his friend Vipin had given a cut by his motorcycle to appellant, therefore, there had occurred an altercation on that day, therefore, accused persons entertained grudge. Except this trivial altercation, there was no animus between them. Chhotu @ Firoz Khan also admitted that on the report by Jitendra he was facing 107 Cr. P. C. proceeding and on his report Jitendra was also facing similar proceedings. He admitted that where the incident occurred, there was a playground, only 5-10 steps away. ( 9. ) SIMILAR evidence was given by PW-2 Vipin and PW-3 Vinod. Chhotu @ Firoz Khan also admitted that on the report by Jitendra he was facing 107 Cr. P. C. proceeding and on his report Jitendra was also facing similar proceedings. He admitted that where the incident occurred, there was a playground, only 5-10 steps away. ( 9. ) SIMILAR evidence was given by PW-2 Vipin and PW-3 Vinod. The evidence of all the aforesaid three witnesses is consistent on the point that it was appellant who inflicted a blow of cricket stump on the head of PW-1 chhotu @ Firoz Khan. However, their evidence in respect to other injuries caused by other accused persons was belied by the evidence of PW-6 Dr. Kutubuddin Ali, who found only one injury i. e. a lacerated wound on the head of PW-1 Chhotu @ Firoz Khan. No other injury was found on his body. Trial Court taking into consideration this circumstance did not find the evidence of aforesaid eyewitnesses, in respect to the participation of the other accused persons, trustworthy and acquitted them by giving benefit of doubt. ( 10. ) ON closely scrutinizing the evidence of aforesaid three witnesses, I find that their evidence in respect to accused/appellant is trustworthy and reliable. It has been clearly established that it was appellant who inflicted a blow by a cricket stump on the head of complainant. This fact is further reinforced from the first information report (Ex. P/1) lodged by him. ( 11. ) THE next question is whether appellant has been rightly convicted under Section 307 of the Indian Penal Code? On perusal of the evidence of pw-1 Chhotu @ Firoz Khan, PW-2 Vipin and PW-3 Vinod Kumar, it is apparent that the appellant was near the Jain Temple in Shabri Nagar. There is no evidence on record to indicate that he had knowledge that the complainant alongwith his two friends was going to pass from that way on a motorcycle. It was just by chance that the injured came across him while passing from the front of Jain Temple in Shabri Nagar. It is in evidence that a playground was only 4-5 steps away from the place where the assault is said to have been made on the complainant. In these circumstances, it appears that when complainant came in front of the appellant, he suddenly took up in his mind to inflict a blow by a cricket stump on his head. It is in evidence that a playground was only 4-5 steps away from the place where the assault is said to have been made on the complainant. In these circumstances, it appears that when complainant came in front of the appellant, he suddenly took up in his mind to inflict a blow by a cricket stump on his head. A cricket stump cannot be held to be a conventional weapon of an offence. In these circumstances, it cannot be held that appellant by his act intended to cause death of the injured. ( 12. ) THE learned counsel for the appellant pointed out that though PW-6 dr. Kutubuddin stated before the court that from C. T. Scan examination report it was detected that there was a blood clot under the skull bone of the injured, but no C. T. Scan report was produced before the Court. Dr. Kutubuddin Ali did not say before the Court that there was any fracture in the skull bone. Though the injured was referred for radiological examination, but no X-ray report was produced before the court. It is also important that the prosecution even did not produce the case-sheet and bed head ticket in respect of the treatment and operation of the injured. In my opinion, in the absence of C. T. Scan report or the X-ray report, the correct nature of the injury cannot be established. However, from the evidence of PW-6 Dr. Kutubuddin Ali, who himself treated and examined the injuries of injured, it is established that the head injury found on the skull of complainant was of the nature which endangered his life. Therefore, in my opinion, it is established that appellant caused an injury, which was grievous hurt in terms of the definition given in Section 320 (eighthly) of the Indian Penal Code. ( 13. ) TAKING into consideration the circumstances as discussed hereinabove, i am of the opinion that the conviction of appellant under Section 307 of the indian Penal Code is erroneous. Accordingly, it is set aside and instead appellant is convicted under Section 325 of the Indian Penal Code. ( 14. ) LEARNED counsel for the appellant pointed out that the appellant and injured Firoz Khan have filed before this Court an application under Section 320 of the Code of Criminal Procedure for compounding the offence. Accordingly, it is set aside and instead appellant is convicted under Section 325 of the Indian Penal Code. ( 14. ) LEARNED counsel for the appellant pointed out that the appellant and injured Firoz Khan have filed before this Court an application under Section 320 of the Code of Criminal Procedure for compounding the offence. According to compromise application, complainant Chhotu @ Firoz Khan and appellant Jitendra wanted to live in peace and harmony in future, therefore, they settled the matter voluntarily without any fear or pressure. This application was signed by both the persons. Both of them appeared before this Court on 4. 2. 2009 and signed the order sheet of this Court also. However, this Court by order dated 4. 2. 2009 dismissed the said application with the observation that effect of compromise shall be taken into consideration while awarding sentence. ( 15. ) SINCE this Court is of the opinion that the appellant committed the offence under Section 325 of the Indian Penal Code and the offence under section 325 of the Indian Penal Code is compoundable with the permission of the Court, in view of the compromise entered into by the injured and the appellant, the appellant deserves to be acquitted. ( 16. ) ACCORDINGLY, this appeal is allowed. The conviction of the appellant is set aside and he is acquitted.