Judgment ( 1. ) This judgment shall govern the disposal of Criminal Appeal No.1928/99 and Criminal Appeal No.2326/99 arising out of the same judgment dated 22.7.99 passed by Third Additional Sessions Judge, Rehli, District Sagar in S.T. No.376/98. ( 2. ) Appellants have been convicted under Section 341, 307, alternatively under Section 307/34 of IPC and sentenced to simple imprisonment for one month and rigorous imprisonment for five years with fine of Rs.2000/-, in default further imprisonment for six months, for the respective offences by the impugned judgment. The sentences were directed to run concurrently. ( 3. ) Being aggrieved by the aforesaid judgment appellant Dhanni @ Dhaniram Chadhar preferred Criminal Appeal No.2326/99, whereas appellant Harikant and two others preferred Criminal Appeal No.1928/99. Appellants No.2 and 3 in Criminal Appeal No.1928/99 died during the pendency of the appeal; as such their appeal having been abated, their names have been deleted from the array of the appellants. ( 4. ) According to prosecution, on 4.4.98 about 9.30 at night when complainant Jagdev Pd. Tiwari was returning alone from Chandpur to his village Bhaisa and reached near the culvert, appellants and other co-accused persons, six in number, some of them armed with deadly weapons, intercepted him on the way. Appellants and other co-accused persons had old enmity with the complainant due to land dispute. It is alleged that appellant Harikant and Bablu @ Vijay (since deceased) were armed with katarna, while appellant Dhanni @ Dhaniram and Pappu @ Praveen (since deceased) were armed with spear and two other co-accused were barehanded. They all began abusing and intimidating the complainant; they attacked the complainant with intent to kill him. First of all, appellant Harikant gave a katarna blow on the face of complainant Jagdev Pd. Tiwari with intent to kill him causing severe injuries, cutting his nose, cheeks and lips, then appellant Pappu @ Praveen (since deceased) gave him a spear blow and appellant Bablu @ Vijay (since deceased) gave him katarna blow causing injuries near his left eye and on his scapular region. Complainant Jagdev shouted for help and rushed to a nearby house of Pooran Yadav in order to save himself. Upon hue and cry, the father and wife of Pooran Yadav started shouting, appellants and other co-accused persons then fled away; while fleeing they intimidated and threatened the complainant. Complainant Jagdev shouted for help and rushed to a nearby house of Pooran Yadav in order to save himself. Upon hue and cry, the father and wife of Pooran Yadav started shouting, appellants and other co-accused persons then fled away; while fleeing they intimidated and threatened the complainant. On being informed of the incident by the wife of Pooran Yadav, the nephew of complainant Jagdev Prasad and other villagers reached there, to whom the incident was communicated. Injured Jagdev Pd. Tiwari was taken to the Police Station, where he lodged the FIR. On the basis of his report, an offence was registered against the appellants and four other co-accused persons and was investigated. Injured Jagdev Pd. Tiwari was sent for medical examination to Primary Heath Centre, Rehli, from where he was referred to District Hospital, Sagar for opinion and further treatment. His dying declaration was also recorded by Nayab Tahsildar at Primary Health Centre, Rehli. The weapons used in the commission of offence were seized from the appellants and other co-accused persons. After due investigation, appellants and other co-accused persons were prosecuted under Section 307, 147, 148, 149, 341, 506-B of IPC and were put to trial. ( 5. ) Appellants and other co-accused persons denied the various charges framed against them and pleaded false implication due to enmity. ( 6. ) Learned Additional Sessions Judge, after trial and upon appreciation of the evidence adduced in the case, acquitted co-accused Shrikant and Ramakant of all the charges framed against them, also acquitted appellant Harikant, Pappu @ Praveen (since deceased) and Dhanni @ Dhaniram as well as Bablu @ Vijay (since deceased) of the charges under Section 147, 148, 506-B of IPC, but found them guilty under Section 341, 307 alternatively under Section 307/34 of IPC and sentenced them as aforesaid by the impugned judgment. ( 7. ) Learned counsel appearing on behalf of appellant Harikant submitted that trial court gravely erred in convicting appellant Harikant on the basis of inconsistent and unreliable evidence of the partisan witnesses and failed to appreciate that he was falsely implicated due to old enmity. Learned counsel for appellant Harikant further submitted that there was glaring inconsistency in the version of complainant as given in the dying declaration and his oral evidence as to the act of appellant Harikant, which escaped notice of the trial court. Learned counsel for appellant Harikant further submitted that there was glaring inconsistency in the version of complainant as given in the dying declaration and his oral evidence as to the act of appellant Harikant, which escaped notice of the trial court. Learned counsel for the appellant also submitted that no case under Section 307 of IPC was proved against him. ( 8. ) Learned counsel for appellant Dhaniram, however, did not appear to advance arguments despite repeated calls; his appeal was therefore, heard on merits alongwith connected Criminal Appeal of appellant Harikant. The appeal filed by appellant Dhaniram has been preferred inter alia on the ground that the Trial Court did not appreciate the evidence against him in proper perspective and failed to consider that appellant Dhaniram was falsely implicated merely on suspicion, though he was not present and involved in the incident and his defence evidence was wrongfully discarded. ( 9. ) Perused the evidence on record. Complainant Jagdev Prasad (P.W-16) deposed in his evidence that at the relevant time about eight/nine Oclock at night when he was returning from Chandpur and was on his way to his village Bhaisa and reached near the culvert, appellant Harikant and Dhaniram alongwith other co-accused persons intercepted him on the way and assaulted him by means of katarna and spear. According to Jagdev Prasad (P.W-16), appellant Harikant assaulted him by katarna, which landed on his face, while appellant Dhaniram and other co-accused persons assaulted him by spear on his right scapular region; when he shouted, appellants and other co-accused persons hurled abuses and fled away. As per the statement of complainant Jagdev Prasad (P.W-16), there was none else present at the time of incident, he then walked towards hutment of Mukundi and Pooran Yadav and called them, whereupon their wives came out, to whom he asked to inform at his house. Chhotu, Ramgopal and Pooran etc. then came there, to whom he narrated the incident; he was then taken to the Police Station Rehli, where he lodged the FIR (Ex.P-8). The FIR (Ex.P-8) lodged by complainant Jagdev was recorded by Sub-Inspector Jayprakash (P.W-15) at Police Station Rehli on 5.4.98. Complainant Jagdev Prasad (P.W-16) further deposed that he remained hospitalized for 13-14 days and as a result of injuries, his face was cut and severed and his teeth were also cut. ( 10. The FIR (Ex.P-8) lodged by complainant Jagdev was recorded by Sub-Inspector Jayprakash (P.W-15) at Police Station Rehli on 5.4.98. Complainant Jagdev Prasad (P.W-16) further deposed that he remained hospitalized for 13-14 days and as a result of injuries, his face was cut and severed and his teeth were also cut. ( 10. ) Manouli (P.W-1), Ramgopal Tiwari (P.W.-4), Chhotu @ Awadh (P.W-5), Pratap (P.W-6), Pooran Yadav (P.W-8) and Pravesh Kumar Tiwari (P.W-14) also deposed that on learning about the incident they reached the place of occurrence and found Jagdev Prasad lying injured, who informed them that appellants Harikant, Dhaniram and others assaulted him by katarna and spear. Mamta (P.W-12), the wife of Pooran Yadav also deposed that on the call of her father-in-law Mukundi, she reached the spot and saw complainant Jagdev Prasad lying injured, who informed her that appellant Harikant and Dhaniram assaulted him. ( 11. ) Dr. M.L. Gupta (P.W-9), who medically examined injured Jagdev Prasad at Primary Health Centre, Rehli, found following injuries on his person:- 1. An incised wound on the face from lateral side of the left eye towards the right side of the angle of mandible, and cut in nose cartilage, size 43 cm x 8 cm x 13cm deep. Upper incisor tooth broken and canine tooth broken, caused by hard and sharp object. 2. An incised wound near left eye, size 3 x 1 cm caused by hard and sharp object. 3. A stabbed incised penetrating wound on the right anterior surface of shoulder, size 3 cm x 3 cm x 4 cm bone deep caused by hard and sharp pointed object. ( 12. ) According to Dr. M.L. Gupta (P.W-9), all the injuries were caused within six hours and the general condition of the patient was poor and he was referred to District Hospital, Sagar for expert opinion and treatment. His MLC report (Ex.P-5) is also placed on record. ( 13. ) Dr. Subhash Jain (P.W-3), who had taken X-rays of injured Jagdev Prasad, admitted in ward no.3, found fracture in his frontal sinus in the skull; his frontal and maxillary sinus were also found hazy and upper front teeth missing. ( 14. ) The aforesaid witnesses, other than the medical witnesses, were extensively cross-examined. Now, so far as the testimony of complainant Jagdev Prasad (P.W-16) against appellant Dhaniram is concerned, it appears to be somewhat suspicious. ( 14. ) The aforesaid witnesses, other than the medical witnesses, were extensively cross-examined. Now, so far as the testimony of complainant Jagdev Prasad (P.W-16) against appellant Dhaniram is concerned, it appears to be somewhat suspicious. As per chief- examination of Jagdev Prasad (P.W-16), appellant Dhaniram and others had given spear blow on his scapular region. He, however, admitted in his cross-examination that after katarna blow wielded by appellant Harikant on his face, he had put his both hands on his face and he was, therefore, not in a position to say as to who gave other blow on his face and scapular region. In the FIR (Ex.P-8) lodged by complainant Jagdev Prasad (P.W-16) there is no such mention that appellant Dhaniram assaulted him or gave a spear blow on his face or scapular region. Complainant Jagdev Prasad (P.W-16) also admitted in his cross- examination that though he had no enmity with appellant Dhaniram, but as appellant Dhaniram also used to live in the company of other accused persons and had come with them to take possession of the disputed fields, he felt animosity against him. Complainant Jagdev Prasad (P.W-16) further admitted that he had not seen appellant Dhaniram in village Bhaisa on the day of occurrence, nor he saw him in Chandpur. Although complainant Jagdev Prasad (P.W-16) denied the suggestion that appellant Dhaniram was out of village and not involved in the incident, but appellant Dhaniram led the evidence of Baliram (D.W-2) and Suresh (D.W-3) in this behalf that he had gone to village Rehli at his relatives place at the relevant time. ( 15. ) In view of the aforesaid facts, particularly the improvement made by complainant Jagdev Prasad (P.W-16) against appellant Dhaniram, the possibility of his falsely naming appellant Dhaniram and his false implication due to feeling of animosity against Dhaniram, cannot be ruled out; thus a reasonable doubt and suspicion arises in respect of the presence and participation of appellant Dhaniram in assaulting and attacking complainant Jagdev Prasad (P.W-16). Appellant Dhaniram is, therefore, entitled to benefit of doubt and deserves to be acquitted. ( 16. ) However, there is a cogent evidence on record against appellant Harikant. Complainant Jagdev Prasad (P.W-16) categorically deposed that appellant Harikant had first assaulted him by katarna on his face causing severe injuries. Appellant Dhaniram is, therefore, entitled to benefit of doubt and deserves to be acquitted. ( 16. ) However, there is a cogent evidence on record against appellant Harikant. Complainant Jagdev Prasad (P.W-16) categorically deposed that appellant Harikant had first assaulted him by katarna on his face causing severe injuries. His name and the act of assault by katarna on the face of complainant Jagdev Prasad is also clearly mentioned in the FIR (Ex.P-8). Learned counsel for the appellant submitted that complainant Jagdev Prasad had given a different version in his dying declaration (Ex.P-6) where he merely attributed him the act of holding of his hands at the time of assault by the other co-accused persons. Needless to emphasize that dying declaration of a person after his death as to the cause of his death is admissible under Section 32(1) of the Evidence Act. Dying declaration of an injured person, where he survives, is nothing more than a former statement recorded at the time of investigation and cannot be equated with the substantial evidence given in the Court, though it, being a former statement, may also be used for contradiction. Be that as it may, even the dying declaration (Ex.P-6) of complainant Jagdev Prasad (P.W-16) indicates the involvement of appellant Harikant in the incident of assault on complainant Jagdev Prasad and in no way it points out to his innocence. ( 17. ) Moreover, complainant Jagdev Prasad (P.W-16) has categorically deposed and asserted that it was appellant Harikant, who gave first and foremost blow to him by means of katarna on his face, which also stands duly corroborated by the FIR (Ex.P-8) lodged by him, which was obviously recorded earlier in point of time than the dying declaration (Ex.P-6). The act attributed to appellant Harikant by complainant Jagdev Prasad (P.W-16) also stands duly corroborated by medical evidence. There is also corroborative evidence of some of other witnesses to whom the name of appellant Harikant was unequivocally communicated as an assailant by the complainant just after the incident. Apposite to mention that such evidence is admissible under Section 157 of the Evidence Act, as also held by the Apex Court in the case of Smt. Chander Kala Vs. Ram Kishan and another reported in AIR 1985 Supreme Court page 1268. ( 18. Apposite to mention that such evidence is admissible under Section 157 of the Evidence Act, as also held by the Apex Court in the case of Smt. Chander Kala Vs. Ram Kishan and another reported in AIR 1985 Supreme Court page 1268. ( 18. ) Although complainant Jagdev Prasad (P.W-16) has been confronted on certain points with his police statement (Ex.D-7) and also with certain portion of FIR (Ex.P-8), but they are not with regard to the act and assault made by appellant Harikant on the complainant. In fact, there are no cogent reasons to disbelieve the version of complainant Jagdev Prasad (P.W-16) that appellant Harikant assaulted him by katarna on his face causing severe injuries. Though it has come in evidence that complainant Jagdev Prasad (P.W-16) was having some dispute over land with appellant Harikant and others, who also belong to his family, but there are no reasons that on account of land dispute complainant would save his real assailant and falsely implicate the member of his family. On the other hand, enmity is a double edged weapon and land dispute could be a cause and motive for appellant Harikant to have assaulted the complainant (P.W-16). ( 19. ) Thus, there are no reasons to doubt the statement of complainant Jagdev Prasad (P.W-16) that appellant Harikant assaulted him by means of katarna on his face, which also stands corroborated by the medical evidence. There are also no cogent reasons to discard or disbelieve the medical evidence or Dr. M.L. Gupta (P.W-9) and Dr. Subhash Jain (P.W-3). ( 20. ) It is quite evident from the medical evidence that there were serious injuries on the face of complainant Jagdev Prasad (P.W-16) caused by hard and sharp object, of considerably large size cutting his nose and breaking his teeth with fracture in the frontal sinus bone of the skull and missing of teeth. ( 21. ) Learned counsel for the appellant submitted that the doctor did not opine that the injuries caused on the person of complainant Jagdev Prasad (P.W-16) endangered his life or were sufficient to cause death, as such no case under Section 307 of IPC was made out. However, the aforesaid submission of learned counsel for appellant Harikant sans merit. As observed by the Apex Court in the case of State of Maharashtra Vs. However, the aforesaid submission of learned counsel for appellant Harikant sans merit. As observed by the Apex Court in the case of State of Maharashtra Vs. Balram Bama Patil and others reported in AIR 1983 SC page 305 and also reiterated in the case of State of M.P. Vs. Chamaru and another (2005) 5 SCC page 554 and State of M.P. Vs. Kashiram and others reported in AIR 2009 Supreme Court 1642 to justify a conviction under Section 307 of I.P.C. it is not essential that bodily injury capable of causing death, should have been inflicted or injury actually caused to the victim of the assault should be sufficient under the ordinary circumstances to cause the death of the person assaulted. What the court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under such circumstances, mentioned in the Section. It is sufficient under law, if there is sufficient intent coupled with some overt act in execution thereof. The requisite intent or intention has to be gathered and deduced from the circumstances brought forth in the case. ( 22. ) In the instant case, the medical evidence reveals that serious and grievous injuries were inflicted on the delicate and vital part of the body like face of the complainant. It is also reflected from the evidence of complainant Jagdev Prasad (P.W-16) that he was intercepted and assaulted by appellant Harikant alongwith four-five persons at night while he was returning back from some other village, which indicates that the act of appellant Harikant was well-planned and well-intended. In such a situation, assault by appellant Harikant by deadly weapon like katarna on a delicate and vital part of the body like face of complainant Jagdev clearly indicates that appellant Harikant had an intention to kill him and thereby attempted at his life. ( 23. ) In view of the aforesaid facts, the conviction of the appellant Harikant under Section 307 of IPC does not suffer from any infirmity so as to warrant any interference in appeal. His conviction under Section 307 of IPC, therefore, deserves to be affirmed. In view of the evidence of complainant Jagdev Prasad (P.W-16), that he was intercepted and assaulted on his way to his village, the conviction of appellant Harikant under Section 341 of IPC also deserves to be upheld. ( 24. His conviction under Section 307 of IPC, therefore, deserves to be affirmed. In view of the evidence of complainant Jagdev Prasad (P.W-16), that he was intercepted and assaulted on his way to his village, the conviction of appellant Harikant under Section 341 of IPC also deserves to be upheld. ( 24. ) The citation referred to by learned counsel for the appellant reported in AIR 1993 SC page 1256 (Pashora Singh and another Vs. State of Punjab) turned on peculiar and different set of facts of that case and are of no avail to appellant Harikant in the instant case. ( 25. ) As regards the sentence of appellant Harikant, learned counsel for the appellant submitted that appellant is presently more than 65 years of age and the incident occurred way back in the year 1998, and he also suffered agony of the death of his two young sons, appellants no.2 and 3, therefore, his sentence of imprisonment should be reduced to the period undergone by him. However, the record reveals that appellant Harikant has been in custody only for a period of seven days or so and such a meagre sentence of few days would not be justified for an offence like one under Section 307 of IPC. However, considering the old age of appellant Harikant and the fact that the incident occurred in the year 1998, interest of justice would be subserved if the impugned sentence of imprisonment of five years awarded to appellant Harikant is reduced to a term of three years rigorous imprisonment. ( 26. ) In the result, Criminal Appeal No.2326/99 preferred by appellant Dhaniram Chadhar is allowed. His conviction and sentence under Section 307, 307/34 and 341 of IPC are set aside and appellant Dhaniram is acquitted of the charges. His bail bonds shall stand discharged. ( 27. ) The Criminal Appeal No.1928/99 preferred by appellant Harikant is also partly allowed. His conviction under Section 307 and 341 of IPC is maintained, but his sentence of rigorous imprisonment of five years under Section 307 of IPC is reduced to a period of three years rigorous imprisonment. His sentence of imprisonment under Section 341 of IPC and sentence of fine under Section 307 of IPC are, however, maintained. ( 28. ) Appellant Harikant is on bail. He shall surrender to his bail bonds to serve out the remaining part of his sentence. His sentence of imprisonment under Section 341 of IPC and sentence of fine under Section 307 of IPC are, however, maintained. ( 28. ) Appellant Harikant is on bail. He shall surrender to his bail bonds to serve out the remaining part of his sentence. Both the appeals are accordingly disposed of.