JUDGMENT Surinder Singh, J (Oral) Appellants were convicted under Section 307 read with Section 34 Indian Penal Code, in Sessions case No. 16-K of 1999 decided on 12.9.2003, and sentenced by the learned trial Court, to undergo rigorous imprisonment for a period of three years and to pay a fine of `5000/- each under Section 307 Indian Penal Code. In default of payment of fine, to further undergo simple imprisonment for a period of six months. It was also ordered that out of the total fine amount, i.e., `15,000/-, if realized, an amount of `10,000/- shall be paid to injured Vijay Kkumar, as compensation. 2. Appellants felt aggrieved by the impugned judgment of conviction and sentence as such challenged it in the present appeal. 3. Brief facts giving rise to the present appeal can be stated thus. On 11.12.1998, PW4 Vijay Kumar along with his brother Shamsher Singh was going to village Kholi to the house of his maternal aunt. PW5 Babli Kumar met them at the place known as “53 miles” and joined them. All of them proceeded towards village Kholi. Around 7 p.m. when they reached near Litchi orchard, short of village Kholi, appellants Jagat Ram, Sanju and Ram Krishan accompanied by Finda and Subhash met them. Appellants Sanju and Jagat Ram caught hold of Vijay Kumar from his arms and Sanju asked Finda to hit him with the object to which he was carrying in his hand. Finda gave a blow on his head. He fell down on the ground. Thereafter, appellants along with their accomplices started beating Shams her Singh and Babli Kumar. On account of the injuries sustained by Vijay Kumar aforesaid, he lost his voice and his right arm and right leg got paralysed. Sanju accused proclaimed that injured was almost dead and they should leave the place. Thereafter Shamsher Singh and Babli Kumar (PW5) took him to “53 miles”, from where they hired three-wheeler and removed him to Hospital at Kangra. Sanjay and Finda are alleged to have visited the Hospital to see whether Vijay Kumar was alive and threatened that if he was alive they would kill him later. The statement of Vijay Kumar could not be recorded by the police in the Hospital as he was unable to speak though he could hear conversation. Vijay Kumar injured was referred to Zonal Hospital Dharamshala and from there to CMC Ludhiana. The statement of Vijay Kumar could not be recorded by the police in the Hospital as he was unable to speak though he could hear conversation. Vijay Kumar injured was referred to Zonal Hospital Dharamshala and from there to CMC Ludhiana. His X-ray and C.T. scan were got done, to gauge the gravity of the injury. 4. PW5 Babli Kumar lodged report Ext. PW5/A to police which culminated into FIR Ext. PW11/A. 5. On 13.12.1998 PW11 S.I. Ambiya Ram proceeded to the spot, recorded the statements of the witnesses, prepared the site plan Ext. PW11/C and also went to the Hospital to record the statement of Vijay Kuamr but he was ‘not fit’ to make the statement. 6. On 14.12.1998, he arrested the appellant Jagat Ram, Bintoo @ Matesh and Kesho Ram. 7. On 16.12.1998 Matesh is alleged to have given disclosure statement to recover the weapon of offence from the Litchi Orchard where it was kept hidden, in the presence of Puran Chand and Bachittar Singh, pursuant to that got recovered danda Ext. P1 which was under the Foolani Grass and taken into possession after sealing the same with seal impression ‘A’. 8. After completing the investigation, challan was prepared and presented for trial of the appellants and their co-accused Mitesh @ Bintoo, Subhash Chand and Kesho @ Kesar under Sections 147, 148, 149 and 307 Indian Penal Code in the court. They were accordingly charge sheeted and put on trial. 9. At the end of the trial, offence under Section 307 read with Section 34 Indian Penal Code, the appellants were held guilty for the offence under Section 326 read with Section 34 Indian Penal Code, accordingly they were convicted and sentenced as aforesaid. whereas other accused persons were acquitted of the charges. 10. Shri V. S. Rathore, Advocate, appearing for the appellants vehemently argued that there has been variation in the FIR and ocular version of the complainant. PW6 Shamsher Singh admitted having lodged a case by the complainant party against them with respect to giving beatings by the accused on 11.12.1998 which makes the case of the prosecution doubtful. 10. Shri V. S. Rathore, Advocate, appearing for the appellants vehemently argued that there has been variation in the FIR and ocular version of the complainant. PW6 Shamsher Singh admitted having lodged a case by the complainant party against them with respect to giving beatings by the accused on 11.12.1998 which makes the case of the prosecution doubtful. It is also ventilated that the statement of the injured was registered at a belated stage and gave chance to deliberate and cook-up the case against the accused persons and further that the prosecution has failed to establish the presence of the appellants at the time of alleged occurrence. 11. On the other hand, learned Additional Advocate General supported the impugned judgment of conviction and sentence. 12. I have considered the rival contentions of the parties and have carefully and cautiously reappraised the evidence on record. 13. PW4 Vijay Kumar is an injured person. He has categorically supported the prosecution case with respect to beatings, particularly by the appellants by an object, like rod. On account of the injuries sustained by the Vijay Kumar, his right side became almost paralytic. In his cross examination, he stated that PW6 Shamsher Singh his brother remained with him when he was in Kangra as well as Dharamshalal Hospitals. He also stated that he remained CMC Ludhiana for 42 days, where he was also attended upon by him. Police had visited Hospital many times but could not record his statement as he was unable to speak. He admitted that on 11.12.1998 a case was registered against him, his brother Shamsher and PW5 Babli Kumar for giving bearings to Sanjeev Kumar by entering into his house. However, he denied that Subhash Chand had also lodged a report at about 7 p.m. against him. He admitted that PW5 Babli Kumar told him that his brother was beaten up by some a day before the said incident but denied that no such occurrence, as stated by him had taken place. 14. PW5 Babli Kumar has offered corroboration to his statement to the extent of giving beatings by the appellants. He also stated that a day before the alleged incident, his brother was beaten up by appellants Jagat Ram, Kesho and Bintoo. 14. PW5 Babli Kumar has offered corroboration to his statement to the extent of giving beatings by the appellants. He also stated that a day before the alleged incident, his brother was beaten up by appellants Jagat Ram, Kesho and Bintoo. He unfolded the prosecution story that on the day of the alleged incident, he had gone to purchase some medicines for his brother who was beaten up by the accused persons, a day earlier to the alleged incident. While returning, he met PW4 Vijay Kumar and his brother PW6 Shamsher Singh the place known as “53 miles”. They were going to his house to see his younger brother. On the way, appellants met them and gave beatings to them near Litchi Orchard near village Kholi. He specifically stated that appellant Jagat Kumar and Sanjay caught hold of VijayKumar from the arm and Ram Krishan @ Finda dealt a blow with rod on his head with the result he fell down and his right side became paralytic. This fact also stands corroborated by PW6 Shamsher Singh, although, he admitted in his cross-examination that a case was registered against them for giving beatings to Sanjeev Kumar by entering his court-yard on 11.12.1998, which fact has also been admitted by PW5 Babli Kumar but there is nothing on record to show what happened to their complaint. Whether it was further pursued or was only an eye wash to use it as defence at a later stage during the trial against them. 15. PW9 Sheelo Ram and PW10 Balkrishan did not support the case of the prosecution but when PW9 was cross examined by the learned Public Prosecutor, he admitted that accused persons belong to his village whereas PW10 is also the resident of the same village. Hence both have reason not to support prosecution case. 16. PW1 Dr. B.B. katoch, had examined Vijay Kumar aforesaid on 12.12.1998 at 9.15 p.m. with alleged history of beatings with a rod at 8.30 p.m. On his examination, he noticed the following injuries:- 17. The injured was referred to Rajinder Parshad Medical College Dharamshala for surgical consultation and further management of injury No. 1. 18. PW3 Dr. Dinesh Sood conducted C.T. Scan of vijay Kumar and opined as under:- “(i) Scalp is bleeding in the middle of parietal region 4x2x1 cm lacerated wound reddish in colour, and active bleeding present. The patient was advised X-rays. 18. PW3 Dr. Dinesh Sood conducted C.T. Scan of vijay Kumar and opined as under:- “(i) Scalp is bleeding in the middle of parietal region 4x2x1 cm lacerated wound reddish in colour, and active bleeding present. The patient was advised X-rays. (ii) Bruise reddish in colour 4x2 cm. over left arm anterior lateral aspect in the middle of the arm.” “There was a depressed fracture, in left parietal bone, near mid line, with fracture fragments, lying in the left parietal lobe, more than 2.15 am deep from the surface of scalp. Few other fragments lying in brain i.e. left parietal lobe interior medeal and deep to fracture sight. There are haemorrhage contusions, with air in it. Shift of flax ceribrites fight side.” 19. He issued CT scan radiology report Ext. PW3/A in his own hand. He was not cross examined on this point and in the opinion of PW1 Dr. B. B. Katoch, injury No. 1 as observed by him in the Medico Legal Certificate Ext. PW1/B was dangerous to life. His opinion is Ext. PW1/A. According to him, Injury No. 1 was possible with a blunt weapon like danda Ext. P1 whereas injury No. 2 was possible with fist blow. However, he admitted that he was told by the injured that he was hit with a rod and laceration in question was also possible with a rod. He also admitted that injures on the person of the injured could be possible by stones. 2. 20. On the close scrutiny of record, It is evident that immediately after sustaining injuries, injured Vijay Kumar was removed to kangra Hospital. When the Police reached there his speech had impaired on that day and could not record his statement. This fact has been corroborated by the injured himself in his statement that he could only hear but not speak. From Kangra, he was referred to Rajinder Parshad Medical College Dharamshala where his C.T. scan was conducted and then referred to CMC Ludhiana for treatment. The Investigating Officer continued to approach the Medical officer for his application whether he was fit to make statement. On 14.12.1998 Police moved an application Ext. PW11./A but doctor opined that he was ‘not fit’ to make the statement. Another application was moved on 6.1.1999 at CMC Ludhiana. Again the endorsement was that he was unable to make statement. The Investigating Officer continued to approach the Medical officer for his application whether he was fit to make statement. On 14.12.1998 Police moved an application Ext. PW11./A but doctor opined that he was ‘not fit’ to make the statement. Another application was moved on 6.1.1999 at CMC Ludhiana. Again the endorsement was that he was unable to make statement. Thereafter third application was moved on 11.1.1999 on which date he was declared fit to make statement. It was then the Investigating Officer recorded the statement of injured Vijay Kumar. Since Shamsher Singh also remained in attendance with the injured, there was also some delay in recording his statement by the Investigating Officer but pertinently, immediately after the incident PW5 Babli Kumar had reported to police about the incident and testified it during the trial, which affords corroboration to the statement of injured Vijay Kumar. Thus the delay in recording the statement of the injured in the given circumstances is not at all fatal. Further, it appears that a report was also registered against the complainant party by the accused persons with respect to the assault on them and it is their defence when they raised hue and cry many villagers had gathered and started pelting stones upon them and in that process, Vijay Kumar suffered injuries. I have also examined this aspect of the case also, to arrive at truth. In fact, a report No. 29 Ext. PW5/A was lodged by Babli Kumar on 11.12.1998. Subsequently rapat No. 32 was got recorded by Sanjeev Kumar. What happened to the report of Sanjeev Kumar injured against the complainant party was not brought on record. As already stated above, it was also not pursued by them. Therefore, in my considered opinion, defence raised could not be probablized. Rather it gives an impression that rapat No. 32 was got recorded by Sanjeev Kumar to raise a false defence in the instant case to use it during trial against them. 21. Therefore, in these circumstances, it stands clearly established on record that the appellants were assailants and they had caused injuries to Vijay Kumar in the manner, as stated by him, which could not be shattered. 22. The next question which arises for determination is whether it is a case of attempted murder. 21. Therefore, in these circumstances, it stands clearly established on record that the appellants were assailants and they had caused injuries to Vijay Kumar in the manner, as stated by him, which could not be shattered. 22. The next question which arises for determination is whether it is a case of attempted murder. For that prosecution is obliged to prove the following ingredients:- (i) that the death of a human being was attempted; (ii) that such death was attempted to be caused by, or in consequence of, the act of the accused; (iii) that such act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as (a) the accused knew to be likely to cause death; or (b) was sufficient in the ordinary course of nature to cause death; or That the accused attempted to cause such death by doing an act known to him to be so imminently dangerous that it must in al probability cause (a) death, or (b) such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury. 23. Thus to attract Section 307 Indian penal Code, it is necessary to establish that if the victim would have met his death, the offence would have been one under Section 302. But, in the instant case, medical evidence shows that the injury was on the head causing fracture of the skull bone. The doctor, has stated that the injury was ‘dangerous to life’ caused on vital part of the body but he did not state that the injury was sufficient in the ordinary course to cause death. Thus, in these circumstances, offence under Section 307 Indian Penal Code is completely ruled out. In this behalf reliance can be put on the judgment of the Division Bench of the Bombay High Court in The State of Maharashtra versus Bodya Ramji patil 1978 Cri. L.J. 411. 24. Since the injury was grievous in nature causing fracture of the parietal bone caused with a rod or danda like object thus, the offence fairly and squarely falls within the purview of Section 325 Indian Penal Code 25. Therefore, in my opinion, the offence must be under Section 325 read with Section 34 Indian Penal Code for which they are held guilty. Therefore, in my opinion, the offence must be under Section 325 read with Section 34 Indian Penal Code for which they are held guilty. Hence conviction of the appellants is altered from section 307 Indian Penal Code and is converted into Section 325 read with Section 34 Indian Penal Code. Keeping in view the gravity of injury to PW5 Vijay Kumar and the period for which he remained hospitalized as also the fact that the manner in which complainant was way-laid and attacked in furtherance of common intention, and keeping in view the impact of this incident on the society, the release on probation of the appellants was rightly declined by the learned trial Court. Thus balancing all the factors, each of the appellants are sentenced to undergo rigorous imprisonment for a period of six months without disturbing the fine and compensation part as imposed and ordered by the learned trial Court. The fine amount stands already deposited as per report of the Deputy Registrar (Judicial) dated 6.11.2003. 26. The appellants are hereby directed to surrender before the learned trial Court on 15.2.2011 to serve out the sentence, failing which, learned trial Court shall take steps to execute the sentence as aforesaid. If any of the appellants was in custody during the investigation or trial, he shall be given the benefit of Section 428 of the Code of Criminal Procedure.