JUDGMENT :- Heard both the learned Counsel. 2. Criminal Appeal No. 161/2010 was admitted on 21st April 2010. The appellants challenge conviction recorded under Section 307, read with Section 34 of Indian Penal Code, in Special Case No. 21/2007, on 31-3-2010, by the learned Additional Sessions Judge, Nanded, thereby directing the appellants/original accused nos.1 and 2, to undergo rigorous imprisonment for seven years and to pay fine of Rs. 1000/-, each, in default to undergo further rigorous imprisonment for 3 months. 3. During the pendency of the appeal, appellant no.2 - M.A. Raheman @ Baba s/o. Shaikh Farid expired on 4-5-2012 at Nanded and consequently, the appeal abates to his extent. 4. The original complainant, feeling aggrieved by the same judgment, recording acquittal of original accused nos.3 and 4, namely, M. Yakub s/o. M. Hajisahab and Moin Ahemad s/o. A. Majid, respectively, has preferred Criminal Appeal No. 365 of 2011 which was admitted on 12th July 2011. 5. Nasar Pasha, the complainant, alleged that at about 10.45 p.m., on 15-1-2002, when he was proceeding for collection of his business dues, on the way, he was brutally assaulted by the appellants and two of their associates and consequently, it gave raise to registration of crime vide C.R. No. 6/2002 at Itwara Police Station, Nanded. 6. In order to prove guilt against the accused, the prosecution examined the 6 witnesses as mentioned below: PW1 Fayyad Hussain s/o. Sk. Husain Panch witness - Turned hostile PW2 Md. Ashif Pasha s/o. Md. Hajishaja Brother of the complainant PW3 Mohd. Naser Pasha Md. Haji Pasha Complainant - Injured. PW4 Gajanan s/o. Namdeorao Deshmukh. Medical Office - Examined the injured. PW5 Abdul Hamid s/o. Maheboobsab Panch witness. PW6 Deepak s/o. Dnyanoba Shinde, API. Investigating Officer 7. PW 3 Mohd. Naser Pasha, the complainant, in his evidence, has stated that on 15-1-2022 at about 10.45 p.m., he was to attend a marriage function, to perform band (Music). Accused no.1 Rafiq asked him to stop the band due to its loud sound, an altercation took place. After attending the function, he board an auto-rickshaw. While the said auto-rickshaw was proceeding at Bafna Road, accused no.1 Rafiq and accused no.2 M.A. Raheman @ Baba (since deceased) stopped the auto-rickshaw, pulled him out of auto-rickshaw. Thereafter, accused no.1 Rafiq removed a Khanjir (Dagger) and attempted to stab him on his head, but incidentally caused injury on his right cheek. While the said auto-rickshaw was proceeding at Bafna Road, accused no.1 Rafiq and accused no.2 M.A. Raheman @ Baba (since deceased) stopped the auto-rickshaw, pulled him out of auto-rickshaw. Thereafter, accused no.1 Rafiq removed a Khanjir (Dagger) and attempted to stab him on his head, but incidentally caused injury on his right cheek. Accused no.2 M.A. Raheman @ Baba took the said Khanjir from accused no.1 and stabbed at his left thigh. Accused no.3 M. Yakub and accused no.4 Moin Ahemad caught hold of him and stabbed at his left waist by the same Khanjir. Owing to his e yelling and shouts, one Asif Shaikh Hussain rushed to the place of incident, rescued him. While undergoing treatment, his FIR was recorded (Exhibit 41). Incriminating articles were seized under panchanama Exhibit 42. He identified the incriminating article Khanjir, Article no.5, before the court. 8. PW 6 Deepak Shinde, API, Investigating Officer, has stated in his evidence that he arrested the accused persons under (Panchanama Exhibits 62 to 65. He prepared the spot panchanama and panchanama of attachment of clothes of the accused and the complainant. He also collected the blood mixed earth from the spot of incident under a Panchanama. He also recorded statements of witnesses. On statement made by accused no.2 M.A. Raheman @ Baba, the dagger was recovered at his instance, under memorandum and panchanama Exhibits 58 and 60. He sent clothes of the accused and complainant and cover of the motorcycle to Chemical Analyser's office for examination and report, under letter Exhibit 69. The Chemical Analyser's reports are at Exhibits 70 to 75. 9. PW 4 Dr. Gajanan Deshmukh examined the injured, complainant Mohd. Naser Pasha on 15-1-2002 and found three incised wounds on his person; he issued medical certificate (Exhibit 53). According to him, injury nos. 1 and 3 were simple in nature, while injury no.2 was grievous. He stated that the patient was admitted in the hospital for three days. He opined that the injuries found on the person of complainant were possible by muddemal article, dagger. He has further stated in his evidence that had the complainant not been treated within time, death was possible due to injury no.2. 10. Mr. M.V. Ghatge, learned Counsel for the appellants (original accused nos.1 and 2), while criticizing the judgment of conviction, has invited my attention to the evidence of six witnesses and asserts that PW 2 Md. He has further stated in his evidence that had the complainant not been treated within time, death was possible due to injury no.2. 10. Mr. M.V. Ghatge, learned Counsel for the appellants (original accused nos.1 and 2), while criticizing the judgment of conviction, has invited my attention to the evidence of six witnesses and asserts that PW 2 Md. Ashif Pasha is introduced deliberately even if he has not witnessed the events. The evidence of recovery of the dagger is doubtful there is interpolation in the Panchanama in respect of presence of blood stains; the prosecution did not establish identity of the panch witness PW 5 Abdul Hamid, who allegedly witnessed events of recovery of dagger. According to the learned Counsel, the falsehood of the complaint is reflected since M. Yakub and Moin Ahemad introduced in the FIR as control1ing the complainant. According to him, the person who drove auto-rickshaw in which the complainant had travelled, is not examined; Asif Hussain, the intervene or, is not examined and consequently, he asserts, the entire prosecution and the conviction recorded against the appellants should be quashed and set aside. 11. Mr. S.B. Ghatol Patil, learned Counsel representing the original complainant, asserts that the nature of injuries suffered by the complainant was fatal and established by the evidence of the Medical Officer. He has placed chart of cases vide C.R. Nos. 158/1998, 14/2001, 102/2002, 6/2002 (present matter) and 8/2002. It is informed that the crimes referred to above at senior nos.1 to 3 were committed by accused no.1 M.A. Rafiq and he has managed to get acquittal by benefit of doubt as prosecution witnesses did not support it. Crime No. 8/2002 is counter complaint filed by accused no. 1 M.A. Rafiq against the present complainant and said prosecution cannot be disputed / denied by the accused. He has even continued commission of offences. 12. The assertion that accused no. 1 M.A. Rafiq (Appellant no. 1) has continued committing offences, is not supported by any record as chart of three cases is indicated herein above. The acquittal recorded by the courts was on appreciation of evidence and, therefore, cannot be doubted and questioned. The principle of estoppel, to which he has given reference, in the fact situation, will not be accelerating. 13. PW 3 Mohd. Naser Pasha has pointed out role of each of the accused assaulting him and reasons for the same. The acquittal recorded by the courts was on appreciation of evidence and, therefore, cannot be doubted and questioned. The principle of estoppel, to which he has given reference, in the fact situation, will not be accelerating. 13. PW 3 Mohd. Naser Pasha has pointed out role of each of the accused assaulting him and reasons for the same. The basic cause for the event was, Mohd. Naser Pasha was getting beat-drums loudly in a marriage ceremony and the appellant - accused felt that it was causing noise pollution and they tried to refrain the complainant. However, these aspects ignited feelings of the appellant. They watched movement of the complainant and he was intercepted on the way at Watmari Road which was secluded and isolated area. 14. Non-examination of auto-rickshaw driver in which the complainant had travelled, will not be fatal as the identity of the accused no. 1 - appellant M.A. Rafiq is not in question. The role played by accused M.A. Rafiq is demonstrated by the complainant in material terms. The accused had a dagger (Khanjir) with him. He tried to assault the complainant. However, the complainant escaped and resultantly suffered injury at his right cheek. 15. The vital role attributed to accused no.2 M.A. Raheman @ Baba is, he stretched the said Khanjir from accused no. 1 M.A. Rafiq and stagged at left side of the complainant. Even he was assaulted at left waist. Yelling by the complainant made presence of Ashif Shaikh Hussain (not examined) who rushed and sensing his presence, accused no. 1 M.A. Rafiq and accused no.2 M.A. Raheman @ Baba sneaked away. 16. The FIR and the evidence illustrate that due to stab injuries, the complainant suffered sprout of blood stains on his apparels which was taken charge by the Police. He has identified Articles 6 to 9. The panchanama drawn at Exhibit 42 is identified by the witness. It is a matter of record that the complainant was hospitalized for three days. Even if the witness for seizure of clothes has turned hostile, however, same has been established by evidence of PW 6 Deepak Shinde, API - Investigating Officer. 17. The Chemical Analyser's report needs to be seen. One shirt had blood stains. The dagger had blood group of "B" (human origin) (Exhibit 73), while the blood group of the complainant is "B" and that of the appellant is "O". 17. The Chemical Analyser's report needs to be seen. One shirt had blood stains. The dagger had blood group of "B" (human origin) (Exhibit 73), while the blood group of the complainant is "B" and that of the appellant is "O". The presence of blood stains on dagger speaks volume against appellant, accused no. 1 Rafiq. There is no explanation as to how blood group of the complainant is imported on the dagger. There is no case that it was interpolation. Reference of presence of blood stains on the clothes of the injured complainant is properly explained and it will not amount to interpolation. 18. The assessment of evidence carried by the learned Additional Sessions Judge, in the above fact situation, does not call for any interference. However, since due to the death of original accused no.2, the appeal is abated. Now, turning to the role played by the appellant no. 1, it is quite evident that he had assaulted the complainant at his right cheek. Even if he had an intention to assault or cause fatal injury, taking scope and nature of the injury, it cannot be said that it was vital in its character. Even the Medical Officer has defined the injury as simple. 19. Learned Additional Sessions Judge has dealt with effects of Section 34 of IPC. The Hon'ble Supreme Court, in the case of Javed Alam Vs. State of Chhattisgarh and another [2009 SAR (Criminal) 733 Supreme Court] : [2009 ALL MR (Cri) 2769 (S.C.)], has observed: "The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. " It was further observed: "Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances." 20. The knowledge of intention between accused no.1, M.A. Rafiq and accused no.2 M.A. Raheman, even if gathered, however, considering the nature of assault by accused no.1 M.A. Rafig upon the complainant, it will not attract import of Section 307 of IPC. The knowledge of intention between accused no.1, M.A. Rafiq and accused no.2 M.A. Raheman, even if gathered, however, considering the nature of assault by accused no.1 M.A. Rafig upon the complainant, it will not attract import of Section 307 of IPC. Section 307 of IPC contemplate, "whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder". 21. The dagger had the blood stains of the blood group of the complainant. Its recovery, though claimed to be doubtful; is apparently established. It was to the exclusive knowledge of the appellant, the place of concealment and it was recovered at his instance. I do not agree with the submission advanced by the learned Counsel for the appellants, that the recovery panchanama had interpolation, though the recovery was at the instance of accused no.2 M.A. Raheman @ Saba. 22. Section 321 of IPC deals with 'voluntarily causing grievous hurt', to conceive, whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said "voluntarily to cause hurt". Section 322 of IPC deals with 'voluntarily causing grievous hurt'. The effect of Sections 321 and 322 of IPC taken together will indicate that the nature of offence committed by the appellant will be within ambit of Section 326 of IPC, which contemplate, "whoever, except in the case provided for by Section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine". 23. Learned Counsel for the appellants has urged that the appellant no.1/accused no.1, M.A. Rafiq, is in custody since three years, as prior to the judgment, he was in custody for 14 - 15 days and thereafter from 31-3-2010, he is in custody owing to the judgment. 24. Taking survey of above facts, conviction of appellant no. 1 / original accused no. 24. Taking survey of above facts, conviction of appellant no. 1 / original accused no. 1, M.A. Rafiq, from offence punishable under Section 307 read with Section 34 of IPC is converted to one under Section 326, read with Section 34 of IPC. 25. So far as Criminal Appeal No. 365 of 2011 preferred by the original complainant, assailing acquittal of original accused nos.3 and 4, basically, learned Additional Sessions Judge having visualized and analyzed the evidence, found that presence of original accused nos.3 and 4 itself is under shadow. The FIR recorded immediately on 161-2002, for offence under Section 294, 323, 504, read with Section 34 of IPC, did not mention presence of M. Yakub and Moin Ahemad. It was showing presence of others who were complainant's friend. There was no overt act played by M. Yakub and Moin Ahemad, except the allegation that they controlled the complainant. However, this fact itself is hazy and deflect evidence of the complainant to act upon it. None of witness support it. 26. Criminal Appeal No. 161 of 2010 is partly allowed. Conviction of appellant no. 1 (original accused no. 1 ), M.A. Rafiq under Section 307 read with Section 34 of IPC is set aside, instead, said appellant is convicted for offence punishable under Section 326 read with Section 34 of IPC. He is directed to suffer rigorous imprisonment for 4 (four) years, and to pay fine of Rs. 1,000/- [Rupees one thousand], in default of making the fine, to undergo further rigorous imprisonment for three months. Set off be given in terms of Section 428 of the Code of Criminal Procedure. 27. Criminal Appeal No 365 of 2011 moved by the original complainant is dismissed. Appeal partly allowed.