JUDGMENT Chandra Bhushan Bajpai, J. 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 07.4.98 passed by 2nd Additional Sessions Judge, Surguja at Ambikapur in Sessions Trial No. 314/93 whereby and whereunder the learned Additional Sessions Judge after holding the appellants Mangal Sana and Chaitanya Sana (died during the pendency of appeal on 25.9.02 and his legal representatives were permitted to contest the appeal as per order dated 11.7.12) guilty for voluntarily causing hurt by dangerous weapon sharing common intention to Shankar (PW-3) and have attempted to take life of Vinod (PW-4) convicted them under Sections 324/34, 307/43 of the IPC and sentenced to undergo rigorous imprisonment for three years, rigorous imprisonment for 7 years and to pay fine of Rs. 5000/-, in default of payment of fine, to further undergo RI for two years. Conviction is impugned on the ground that without there being an iota of evidence, the trial Court has convicted and sentenced the appellant as aforementioned thereby committed illegality. 2. As per case of prosecution, on 02.11.92 at about 9.20 p.m. Shankar Sarkar (PW-3) along with Vinod Sarkar (PW-4) lodged report before the Inspector of Police Station Ramanujganj that on the same day at about 8 p.m. he was invited by Ex-sarpach Prashant Sarkar (PW-1) for rehearsal of drama. When he along with Vinod Sarkar standing in front of the house of Prashant Sarkar, appellant Mangal Sana reached there and threatened him for taking their life if they take part in the said drama. He resisted the same. During the said altercation, appellants Mangal Sana and Chaitanaya Sana, after sharing common intention, assaulted both of them by knife and axe. The same was recorded in rojnamchasnand No. 39 and injured were sent for medical examination. Dr. R. Chouhan examined Shankar and noticed one lacerated wound with irregular margin of 2" x 1 cm X muscle deep present over the left waist with slight hemorrhage. He opined that the injuries were simple in nature and caused by hard and blunt object and gave his report vide Ex-P/11. He also examined Vinod and noticed one incised looking wound of 2.5 x 0.25 x 3 cm deep cutting some layers of muscles at the right lumbar region. He opined that the injuries were simple in nature and caused by hard and blunt object and gave his report vide Ex-P/11. He also examined Vinod and noticed one incised looking wound of 2.5 x 0.25 x 3 cm deep cutting some layers of muscles at the right lumbar region. He opined that the injuries may be caused by hard and sharp object and gave his report vide Ex-P/12 which was proved during the trial by Dr. BR Sharma (PW-14). After medical report, FIR was lodged on 03.11.92 by the Station House officer. Police station Ramanujganj vide Ex-P/9. Vinod was referred to District Hospital for further treatment. Blood stained clothes of Shankar and Vinod were seized vide Ex-P/4 & P/5. Knife was seized at the instance of appellant Mangal vide Ex-P/6. Axe which was snatched by Khokhan Machan (PW-2) from appellant Chaitanya was seized vide Ex-P/3. Seized knife and axe were sent for examination. The doctor opined that injuries noticed over the body of injured Shankar and Vinod may be caused by the said articles. 3. Statement of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (for short 'the Code'). After completion of investigation, charge-sheet was filed before Judicial Magistrate First Class, who in turn committed the case to the Court of Sessions, Surguja at Ambikapur. The learned Additional Sessions Judge, received the case on transfer who framed the charges against both the appellants under Section 506, 324/34 and 307/34 of the Indian Penal Code and conducted the trial. 4. In order to prove the guilt of the appellants, the prosecution has examined as many as 14 witnesses. Statement of the appellants were recorded under Section 313 of the Code, wherein they denied the circumstances appearing against them, pleaded innocence and false implication in crime in question. The learned trial Judge after affording opportunity of hearing to the parties, convicted and sentenced the appellants as aforementioned. 5. As per order dated 11.7.12, by allowing IA No. 5178/02 under Section 394 of the Code, on account of death of appellant Chaitanya on 25.9.02, the court permitted his representatives to contest the appeal. As per order present appellants 2.1, 2.2, 2.3 & 2.4 are contesting the appeal on its merits on behalf of deceased appellant Chaitanya as his legal representatives. 6. As per order present appellants 2.1, 2.2, 2.3 & 2.4 are contesting the appeal on its merits on behalf of deceased appellant Chaitanya as his legal representatives. 6. I have heard learned counsel for the parties and perused the judgment and record of the Court below. 7. Learned counsel for the appellants vehemently argued that independent witnesses Prashant Sarkar (PW-1) and Khokhan Machan (PW-2) declared hostile and they have not supported the case of the prosecution, inter aha, deposed that there were 12 to 15 person present at the spot and they quarreled. He also submits that there are material omission and contradiction in the statement of injured eye witnesses Shankar (PW-3) and Vinod (PW-4) and since their statements are not supported by independent witnesses and variation in their submission, their statement cannot be held as admissible. Conviction cannot be based on testimonies of injured witnesses. During the incident, the appellants also received injuries and non-explanation of their injuries is fatal for prosecution. The appellants would have acted towards their right to private defence. The injuries sustained by Vinod (PW-4) was simple in nature and the doctor nowhere mentioned that injuries of Vinod is fatal to his life. On the basis of oral evidence of other two witnesses that they remained in hospital under treatment for 15-15 days, the trial Court held the appellant guilty under Sections 324/34 and 307/34 which is without any medical corroboration. The prosecution has utterly failed to prove its case against the appellants, hence the appeal may be allowed and the appellants may be acquitted of the charges leveled against them. 8. Learned counsel for the appellants placed reliance in Prabhulal v. State of MP, MP WN 2000 (1) (sic) that accused not instigating other co-accused to fire cannot be convicted since unidentified accused fired at instigation of appellant, injuries caused on lower part of the body case falls under Section 326/109 IPC. He also placed reliance in Gokulsingh v. State of MP, 2005 (5) MPST 59 MP wherein the Court held that the incident occurred all of sudden offence must fall under Section 326 of the IPC and not under Section 307 IPC. He also placed reliance on Thakurram v. State of M.P. (Now C.G.), 2013 (4) CGLJ 299 in which this Court held that injuries are not dangerous, knife blow on abdomen. He also placed reliance on Thakurram v. State of M.P. (Now C.G.), 2013 (4) CGLJ 299 in which this Court held that injuries are not dangerous, knife blow on abdomen. The doctor did not depose that if the complainant would not have been admitted in the hospital, his death was possible and injuries so fatal to his life. Therefore, conviction is altered from Sections 307 to 326 of the IPC. On the basis of these three cited cases, learned counsel for the appellants submits that case of the appellants may also identical and their conviction may fall like wise and may be reduced. 9. Per contra, learned counsel for the State opposed the appeal and arguments advanced on behalf of the appellants and submitted that Prashant Sarkar (PW-1) and Khokhan Machan (PW-2), though turned hostile not supported the case of the prosecution, but some extent they admitted the presence of appellants at the spot and regarding quarrel. He further submits that there is no reason for any suspicion in the evidence of injured witnesses as to why they falsely implicate the appellants. They received injuries, within one hour and twenty minutes reported the matter to the police thereby eliminating the scope of false implication. On medical examination they received injuries though surgical specialist has not examined them. They reported the matter to the police within one hour and twenty minutes of the incident. Since the injury of Vinod (PW-4) was at lumbar region and looking to the nature and position of the injury it was caused for attempting to take the life of Vinod (PW-4) for which the trial Court rightly held the appellants guilty. There are no reason for false implication. The appeal is without substance and it may be dismissed. 10. In order to appreciate the arguments advanced on behalf of the parties, I have examined the evidence adduced by the prosecution. 11. The matter was reported within one hour and 20 minutes of the incident and it was duly recorded, in which role of both the appellants were described. Since the report lodged within one hour and twenty minutes there was no scope for false implication or stating lie for no cause. In the present case, promptly lodged First Information Report by way of rojnamchasanha is trustworthy, truthful and admissible. Since the report lodged within one hour and twenty minutes there was no scope for false implication or stating lie for no cause. In the present case, promptly lodged First Information Report by way of rojnamchasanha is trustworthy, truthful and admissible. Both the injured received injuries though Shankar (PW-3) received simple injuries and Vinod (PW-4) received injuries at lumbar region on right side 2.5 x 3 x 2 cm with hemorrhage. The medically corroborated report, i.e. Ex-P/8 inspires confidence. Though other witnesses Prashant Sarkar (PW-1) and Khokhan Machan (PW-2) have not supported the prosecution case, but since the statement of Shankar (PW-3) and Vinod (PW-4) are corroborated by medical evidence even if other witnesses turned hostile prosecution case does not become false. It has to be assessed on the basis of other admissible evidence. Shankar (PW-3) and Vinod (PW-4) were cross-examined at length but they have remained very firm in their statement. Nothing can be elicited to discredit evidence of these witnesses after the lengthy cross-examination also along with medical corroboration. Dr. BR Sharma (PW-14) though not examined Shankar (PW-3) and Vinod (PW-4) but on account of non-availability of the doctor, he identified the signature and contents of the report Ex-P/11 and P/12 for which there are no challenge to discredit his statement. Though there are some minor variations in the statement of both the injured but they remained very firm for the substantive piece of evidence, minor variations and omissions does not affect the present case adversely. It is said that the appellants also received injuries but their injuries were not proved by any admissible evidence by admitting the documents for consideration and even part of their injuries may be caused at the time of scuffle and assault and when other intervened in the matter. I am of the opinion that the since the injuries were not proved, the appellant may not be given the right towards their right of private defence. In the present case element of right to private defence does not attract. There are dispute regarding rehearsal for a drama. Rehearsal and staging of drama was objected by the appellants. 12. By minute examination of the evidence, presence of the appellants at the place of incident is proved. It is proved that both the appellants inflicted injuries to Shankar (PW-3) and Vinod (PW-4) for no reason from their side. The injuries were medically corroborated. Rehearsal and staging of drama was objected by the appellants. 12. By minute examination of the evidence, presence of the appellants at the place of incident is proved. It is proved that both the appellants inflicted injuries to Shankar (PW-3) and Vinod (PW-4) for no reason from their side. The injuries were medically corroborated. The appellants inflicted the injuries to the injured witnesses and are proved by the prosecution. 13. The injury sustained by Shankar (PW-3) was due to hard and blunt object. Lacerated wound with some bleeding though simple in nature. As per evidence there was assault by dangerous weapon. By considering all these evidence the trial Court rightly held the appellants guilty under Section 324/34 of the IPC. The appellants by sharing common intention, assaulted and inflicted injuries to Shankar (PW-3). So far as the injuries of Vinod (PW-4) is concerned, nature of injury was not opined by examining doctor in MLC report (Ex.-P/12). As per the information, the nature may be assessed after surgical evaluation of the patient for which he has been referred to District hospital. No other doctor examined regarding surgical evaluation and opinion though the injuries were at lumbar region but simple. Since the injuries were on vital part of the body, it cannot held that it was towards attempting for taking life. In the present case, the appellants were objecting regarding the rehearsal for some reason, they have dispute, discussion and quarrel and the incident took place. It appears that without premeditation under the effect of some discussion since the witnesses were not acting as per instruction of the appellants, they inflicted blow but the appellants were armed with deadly weapon axe and knife and the victims were not armed only one injury inflicted upon the body of Vinod. If appellant Mangal may wish he may have inflicted many more blows over the body of Vinod (PW-4). In absence of surgical evaluation and medical evidence as how many days these witnesses remained in hospital as indoor patient, what was the evaluation of surgical specialist, what further treatment given to him at the hospital simply on the basis of evidence of these witnesses, it cannot be held that the injuries were fatal for life. In absence of surgical evaluation and medical evidence as how many days these witnesses remained in hospital as indoor patient, what was the evaluation of surgical specialist, what further treatment given to him at the hospital simply on the basis of evidence of these witnesses, it cannot be held that the injuries were fatal for life. In absence of admissible medical evidence, I am agree with the case of the appellants for inflicting blows with intention to attempting for taking life of Vinod (PW-4) has not been proved. The acts of the appellants may fall within the ambit of Section 324/34 of the IPC and not under Section 307/34. The case law cited on behalf of the appellants in Prabhulal (supra), the accused not instigated other accused to fire cannot be convicted under Section 307/34, unidentified accused fired at appellant, injuries caused on lower part of the body, the case falls under Section 326/109. In the present case, the facts are different but on account of injuries caused on lower part of the body, the High Court of MP held the appellant guilty under Section 326 of the IPC. The fact of this case is different and as the appellant placed reliance in this case law, I am of the view that in absence of expert medical opinion and other evidence regarding treatment the appellant may not be convicted under Section 307/34 rather the case under Section 324/34 is proved. The appellant also placed reliance in Gokulsingh (2005 (5) MPST 59 (MP) (supra). Both the cited case laws the act of the appellant held not under Section 307 of the IPC is reduced for Section 326 of the IPC. As stated above, facts of this case is even better than the cited case law and the present case does not fall under Section 326/34 of the IPC and it comes under the ambit of 324/34 IPC. 14. By appreciating the evidence adduced on behalf of the prosecution, I am of the view that judgment of conviction of the appellants under Section 307/34, for attempt to take life of Vinod (PW-4) needs modification. The act of the appellants comes under the ambit of Section 324 of the IPC. 15. Consequently, the appeal filed by the appellants are partly allowed. The act of the appellants comes under the ambit of Section 324 of the IPC. 15. Consequently, the appeal filed by the appellants are partly allowed. Both the appellants are convicted under Section 324/34 (two counts) for voluntarily causing hurt by dangerous weapon to Shankar (PW-3) and Vinod (PW-4). Judgment of conviction under Section 307/34 is reduced and altered to Section 324/34 of the IPC. So far as quantum of sentence are concerned, the incident is about 22 years back, the appellants are first offenders, their criminal past was not reported in the charge-sheet. Even they have not involved in any other criminal activities after the incident. On behalf of respondent/State, there were petty difference of opinion and dispute regarding rehearsal for the drama to be staged. The appellants are facing and contesting the trial and this appeal even after the lapse of 22 years. On account of petty dispute and since the witnesses were not following the instructions of the appellants for not taking part in the rehearsal, this incident happened. In totality of the circumstances of the case, I am of the view that the appellants may be given an opportunity for their reformation so that they may respect the law of the land and lead a peaceful life in the society. Instead of sending them jail for serving the remaining part of the sentence as the appellants served part of the sentence of 6 days the trial from 15.7.93 to 20.7.93 and thereafter from 07.4.98 to 22.7.98 for 3 months and 15 days in total 3 months and 21 days. I am of the view that the period already undergone would be sufficient for the circumstances of the case as justified and proper sentence. With this, each appellants (i.e. appellant No.1 Mangal Sand and appellant No. 2 Chaitanya Sana who died pendency of the appeal) are convicted under Section 324/34 and 324/34 of the IPC and sentenced to undergo imprisonment for the period already undergone by them in both counts. Also the appellants are sentenced to pay fine of Rs. 2500/- and Rs. 2500/-, in total Rs. 5000/- to each of the appellants, in default of payment of fine, to further undergo RI for three months, three months to each appellants. If fine amount paid, as per judgment of the trial Court, the same shall be adjusted. Also the appellants are sentenced to pay fine of Rs. 2500/- and Rs. 2500/-, in total Rs. 5000/- to each of the appellants, in default of payment of fine, to further undergo RI for three months, three months to each appellants. If fine amount paid, as per judgment of the trial Court, the same shall be adjusted. If fine amount is not paid, the trial Court is directed to take appropriate steps under the law. Appellant Mangal is on bail. His bail bonds shall continue for further period of six months as per Section 437A of the Code. Appeal Partly Allowed.