JUDGMENT : Hon'ble SHARMA, J.— This appeal has been filed by the appellants against the judgment and order dated 15.11.1988 passed by Addl. Sessions Judge No. 2, Alwar Camp Behror, in Sessions Case No. 65/1983, whereby accused appellants have been convicted for the offence under Section 307 IPC and sentenced to undergo 3 years' RI together with fine of Rs. 200/-; in default of payment of fine, to further undergo 2 months' RI. 2. Brief facts of the case are as under: "On 15.6.1983, on FIR came to be lodged at Police Station Behror by Gangaram in respect of an occurrence alleged to have taken place on the same day. On the basis of said report, the case was registered for the offence under Sections 323 and 341 IPC. Thereafter investigation was started and on completion of investigation, the police filed challan against the accused appellants for the offence under Sections 307, 325, 341 and 323 IPC before the Magistrate concerned. Thereafter the Magistrate committed the case to the Court of Sessions, who transferred the case to Addl. Sessions Judge No. 2 Alwar Camp Behror. The trial Court framed charges against the accused appellants for the offence under Section 307 IPC, who denied for the same and claimed for trial. Thereafter the prosecution has produced the witnesses and exhibited some documents. The appellants produced as many as 5 witnesses in their defence, whose statements were also recorded. The statement of the accused appellants were recorded under Section 313 Cr.P.C. After hearing both the sides, the learned trial Court has passed the judgment and order dated 15.1.1988 convicting and sentencing the accused appellants, as indicated here-in-above." 3. Against the said judgment and order passed by the trial Court, the appellants have filed the instant appeal. 4. At the very out-set, learned counsel for the appellants has contended that accused appellant Surender Singh has expired, as such the appeal qua appellant Surendra Singh has abated. 5. So far as the appeal of appellant Mahendra Singh is concerned, learned counsel for the accused appellants has contended that the accused appellant Mahender Singh is innocent person and he has been falsely implicated in this matter. He has further contended that no case under Section 307 IPC is made out against the accused appellant Mahender Singh, as such conviction of the accused appellant under Section 307 IPC is not proper. He has further contended that no case under Section 307 IPC is made out against the accused appellant Mahender Singh, as such conviction of the accused appellant under Section 307 IPC is not proper. He has further contended that in absence of specific charge under Section 34 IPC, the appellant could not have been convicted under Section 307 IPC. He has further contended that according to the prosecution, injured Dalip had sustained 9 injuries in total, whereas according to PW-10 Dr. Vijay Singh Yadav, injury No. 6, 8 and 9 were simple and injuries No. 1 to 5 and 7 are also caused by blunt object, but since there was no fracture hence they were also simple in nature. As far injury No. 7, 8 and 9 are concerned, according to Doctor, they could be caused by single blow. In such circumstances, it cannot be held that injuries were dangerous to life in the ordinary course of nature and as such no case under Section 307 IPC is made out against the appellant. 6. He has further contended that the trial court has wrongly believed upon the statement of PW.3 Dr. P.A. Agarwal and PW.10 Dr. Vijay Singh Yadav as there is a material contradiction in between the statements of these two Doctors, but no positive inference could be drawn from the statements of these doctors to reach on the conclusion that the injuries were dangerous to life in the ordinary course of nature. He has drawn the attention of this Court on the cross-examination part of the statement of PW.3 and PW.10, which is reproduced as under:- PW-3 Dr. He has drawn the attention of this Court on the cross-examination part of the statement of PW.3 and PW.10, which is reproduced as under:- PW-3 Dr. P.A. Agarwal: ^^nyhi ds 'kjhj ij flj dh lhus dh o Vdus dh pksV vdsyh vius vki esa izk.k?kkrd ugha Fkh cfYd lkewfgd :i ls izk.k?kkrd FkhA eSus esjh ;g jk; et:c dks ns[kdj rFkk ,Dljs dks ns[k dj nh FkhA ;g lgh gS fd flj dh pksVks dh batjh fjiksVZ esa xgjkbZ ntZ ugha gSA vr% flj dh pksV vdsyh izk.k?kkrd ugha dgh tk ldrhA et:c nyhi dh Nkrh ij dsoy ,d gh pksV Fkh vkSj bldh ;kfu bl pksV dh QyLo:i rhu ilfy;ksa dk QzSDpj FkkA ;g lgh gS fd pksV Hkh vdsyh Hkh izk.k?kkrd gks ldrh FkhA ilfy;ksa ds VwVus ds dkj.k is'kaV dks lkal esa :dkoV bruh :dkoV iSnk gks tkrh gS fd tks thou dks [krjs esa Mkyrh gS ilyh dh gM~Mh VwV dj ywjk dks Msest djrh gS o fQzD'ku dh dksbZ gM~Mh Qywjk ls nwj ugha gksrk gS** PW.10 Dr. Vijay Singh Yadav: ;g lgh gS fd et:c fnyhi flag dh flj dh fdlh vfLFk dk vfLFkHkax gksuk ugha ik;k x;kA ;g lgh gS fd Nkrh dh 7] 8 o 9 Hkh ilfy;ksa dk vfLFkHkax ,d gh pksV ls dkfjr gks ldrk Fkk pksV ua- 7 ls tks vLFkhHkax dkfjr gqvkA og dBksj Hkwfe ij fxjus ls dkfjr gks ldrk gSA ;s lc pksVs ykBh ls vk ldrh FkhA pksV ua- 8 o 9 fdlh iRFkj ij uqdhys ij fxjus ls Hkh vk ldrh FkhA pksV la[;k 1 ls 3 et:c ds thou ds fy, ?kkrd Hkh gks ldrh Fkh vkSj ugha HkhA pwafd ;s pksVs flj ij Fkh blfy, flj dh pksVksa ds fy, fu'fpr :i ls ugha dgk tk ldrk fd dkSulh pksV dc ?kkrd gks ldrh gSA pksV la[;k 7 Hkh e`R;q ds fy, ?kkrd gks Hkh ldrk gS vkSj ugha HkhA ;fn ilfy;ka vfLFk Hkax ds ckn yWXl esa ?kql tk;s rks ?kkrd gks ldrh gS ojuk ughaA et:c dk dksbZ QsQMk iapj ugha gqvk vr% ;g pksV ?kkrd ugha Fkh** 7. He has further contended that the prosecution has also produced Nityanand (PW.5), Rameshwar (PW.3) and Gangaram (PW. 4) before the trial Court as eye witness, while they were not present at the time of occurrence and they are the interested eye witnesses, although the FIR was lodged by PW.4 Ganga Ram. He has further contended that the prosecution has also produced Nityanand (PW.5), Rameshwar (PW.3) and Gangaram (PW. 4) before the trial Court as eye witness, while they were not present at the time of occurrence and they are the interested eye witnesses, although the FIR was lodged by PW.4 Ganga Ram. He has further contended that the sole eye witness of this case was Sultan (PW.8) and he is the star witness of the prosecution, but he has been declared hostile. 8. He has further contended that by complainant side, accused Surendra Singh had received the injuries upon his body, which were examined by Dr. Mahesh Chandra Agarwal and who was produced as DW-2. The relevant part of the statement of DW-2 Dr. Mahesh Chandra Agarwal is reproduced as under:- ^^eSus lqjsUnz flag dh pksVks dk ijh{k.k mlds Lo;a ds fuosnu ij fd;k FkkA ;g eq>s /;ku ugha fd ?kk;y ds lkFk mlds firk vk;s ;k ugs] oSls nks pkj vkneh vo'; vk;s FksA pksV ua- 2 ?kk;y ds [kMs jgus vFkok tehu ij fxj tkus] nksuksa fLFkfr esa vkuk laHko gSA pksV ua- 1 Lo;a dkfjr gks ldrh gS exj pksV ua- 2 o 3 Lo;a dkfjr gks ldrh gSA xokg us pksV izfrosnu izn'kZ Mh&4 dks /;kuiwoZd ns[kdj dgk fd blesa of.kZr pksVs Lo;a }kjk dkfjr gks ldrh FkhA ?kk;y ds pksVs bl izdkj dh ugha Fkh tks mlds pyus fQjus esa ck/kd gksA** 9. Further, he has drawn the attention of this Court on the judgment of Hon'ble Apex Court in the case of Lakshmi Singh & Others vs. State of Bihar reported in (1976) 4 Supreme Court Cases 394, wherein their Lordships of Hon'ble Apex Court held as under: "Where the prosecution fails to explain the injuries on the accused, two results follows: (1) that the evidence of the prosecution witnesses is untrue; and (2) that the injuries probabilise the plea taken by the appellants. Mohar Rai vs. State of Bihar, (1968) 3 SCR 525 : AIR 1968 SC 1281 Cr.LJ 1479, followed. Mohar Rai vs. State of Bihar, (1968) 3 SCR 525 : AIR 1968 SC 1281 Cr.LJ 1479, followed. In a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences: (1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. Puran Singh vs. State of Punjab, (1975) 4 SCC 518 : 1975 SCC (Cr.) 608 and State of Gujarat vs. Bai Fatima, (1975) 2 SCC 7 : 1975 SCC (Cr.) 384; relied on. However there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweights the effect of the omission on the part of the prosecution to explain the injuries." 11. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweights the effect of the omission on the part of the prosecution to explain the injuries." 11. Learned counsel has requested to this Court that in this view of the matter that no case is made out under Section 307 IPC, as such accused appellant Mahender Singh is entitled for acquittal, and if not then looking to the fact that at the time of committing offence, the age of accused appellant Mahender Singh was 19 years and recently he has been employed as a Government Teacher in Education Department of the State of Rajasthan; he is facing the trial from the last 32 years; after passing of the judgment one of the accused appellant Surender Singh has expired and accused appellant Mahender Singh is in mental agony and at the most, the matter jumps under Sec. 308 IPC, his conviction should be altered from Section 307 IPC to 308 IPC. 12. In support of his contentions, he has relied upon the judgment rendered by the Coordinate Bench of this Court in the case of Munna vs. State of Rajasthan reported in Cr.L.R. (Raj.) 1984 page 529. Relevant paras are reproduced as under: "5. The question that next arises is with regard to the offence that can be said to have been committed by the accused appellant. The submission of Shri Bhartiya was that in the facts and circumstances of the case, the only offence which can be said to have been committed was falling under Section 308 IPC and that the Additional Sessions Judge has erred in convicting the accused appellant for the offence under Section 307 IPC. In this connection Shri Bhartiya has invited my attention to the statement of Dr. Y.K. Sharma PW. 6 and has pointed out that Dr. Y.K. Sharma stated that the injury sustained by Jafar Mohd. was sufficient to cause death, but it has not been stated by Dr. Sharma that the said injury was sufficient in the ordinary course of nature to cause death. 6. I have perused the statement of Dr. Y.K. Sharma PW. 6 and has pointed out that Dr. Y.K. Sharma stated that the injury sustained by Jafar Mohd. was sufficient to cause death, but it has not been stated by Dr. Sharma that the said injury was sufficient in the ordinary course of nature to cause death. 6. I have perused the statement of Dr. Y.K. Sharma and I find that during the course of examination-in-chief he has stated that the injury found after operation could result in death. Dr. Sharma has not stated that injury that was found on the person of Jafar Mohd. was sufficient in the ordinary course of nature to cause death. In the circumstances it cannot be said that if Jafar Modh. had died, the appellant would have been guilty of the offence under Section 302 IPC. In the facts and circumstances of the case the offence that would have been made out against the appellant in case Jafar Mohd. had died, would have been culpable homicide not amounting to murder punishable under Section 304 IPC inasmuch as the appellant could only be attributed with the intention to cause an injury which was likely to cause death. The conviction of the appellant for the offence under Section 307 IPC cannot, therefore, be sustained and he can only be held guilty for the offence punishable under Section 308 IPC." 13. It was held in the aforesaid paras that Doctor not stating that the injury was sufficient to cause death in the ordinary course of nature, the conviction of the appellant for the offence under Section 307 IPC cannot, therefore, be sustained and he can only be held guilty for the offence punishable under Section 308 IPC. 14. Learned counsel for the appellants has also placed reliance on the judgment rendered by the Division Bench of this Court in the case of Jodh Singh vs. State of Rajasthan reported in Cr. L.R. (Raj.) 1984. 15. 14. Learned counsel for the appellants has also placed reliance on the judgment rendered by the Division Bench of this Court in the case of Jodh Singh vs. State of Rajasthan reported in Cr. L.R. (Raj.) 1984. 15. He has further requested that accused appellant is not the habitual offender; it is the first offence of his life; his mother is in old age and she is seriously suffering on account of old age diseases and the appellant is the only son to look after her and there is no evidence against accused appellant that he is previously convicted in any of the case; he is having children and he is in government service, hence he should be released on probation and the benefit of Sec. 12 of Probation of Offenders' Act should also be given to him. 16. On the other hand, learned PP appearing for the State assisted by counsel for the complainant have opposed the same. They have contended that although PW.8 Sultan has been declared hostile, but other witnesses of the prosecution corroborate the evidence of each other and prove the prosecution case against the accused appellant. They have further contended that the trial Court after due appreciation of evidence submitted by both the parties, pronounced the judgment and order dated 15.1.1988. They have further contended that on behalf of the prosecution number of judgments of Hon'ble Apex Court as well as this High Court and other High Courts were cited before the trial Court and after taking into consideration the each and every aspect of the matter and evidence produced before it, the trial court has rightly convicted the accused appellants, hence no interference is required by this Court. In this view of the matter, the appeal filed by the appellant(s) be dismissed and the judgment of the trial court be upheld. 17. I have heard learned counsel for the parties and carefully perused the material made available to me. 18. It is an admitted fact that PW.8 Sultan, who is the star prosecution witness has been declared hostile. Further it is clear that PW.4 Ganga Raj, PW. 5 Nityanand and PW.3 Rameshwar, their names were not mentioned in the First Information Report, but they were produced as eye witnesses, although Ganga Ram PW.4 Lodged the First Information Report before the Police Station. Further it is clear that PW.4 Ganga Raj, PW. 5 Nityanand and PW.3 Rameshwar, their names were not mentioned in the First Information Report, but they were produced as eye witnesses, although Ganga Ram PW.4 Lodged the First Information Report before the Police Station. Further it is admitted fact that Investigation Officer was not produced before the trial Court, although it is a negligence on the part of the prosecution as well as on the part of the Investigating Officer, who did not appear before the trial Court as a witness in this matter. It is also a fact that Surender Singh, who has now died, received number of injuries upon his body, which were examined by DW.2 Dr.Mahesh Chandra Agarwal, which is evident from the statement of Dr. Mahesh Chandra Agarwal, as mentioned here-in-above. The prosecution has failed to explain with regard to injuries caused by the complainant party. According to the statement of PW.3 Dr. P.A. Agarwal and PW.10 Dr. Vijay Singh Yadav, the offence under Section 307 IPC is not made out because they have not given the opinion that the injuries caused by the accused persons were sufficient to cause death in the ordinary course of nature; nor there was any act of the accused persons with such intention or knowledge and under such circumstances that, if they by that act caused death, would be guilty of murder. 19. For ready reference, Sec. 307 and 308 IPC are reproduced as under: 307. Attempt to murder.-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, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to (imprison-ment for life), or to such punishment as is hereinbefore mentioned. Attempts by life convicts. (When any person offending under this section is under sentence of (imprisonment for life), he may, if hurt is caused, be punished with death.) 308. Attempts by life convicts. (When any person offending under this section is under sentence of (imprisonment for life), he may, if hurt is caused, be punished with death.) 308. Attempt to commit culpable homicide.-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 culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. 20. Looking to the facts and circumstances of the case as well as the statement of prosecution witnesses including the medical witnesses, I do not find any case to have been made out against the accused appellant(s) under Section 307 IPC, rather the case under Section 308 IPC is made out in this matter. The trial Court has erred in convicting the accused appellant(s) for the offence under Section 307 IPC. Further it is a fit case to give benefit of probation accused appellant Mahender, after altering their conviction from Section 307 IPC to 308 IPC because he is a government teacher in Education Department, having old aged mother, suffering from old age diseases, he is having children also and the incident is found to have occurred 32 years ago. 21. For these reasons, this appeal is disposed of with the following directions: (i) The appeal filed on behalf of accused appellant Surender Singh is dismissed as having been abated. (ii) The appeal filed on behalf of accused appellant Mahender Singh is partly allowed and his conviction is altered from Section 307 IPC to Section 308 IPC. (iii) He is given the benefit of Probation of Offenders' Act and it is ordered that he shall be released on probation under Section 4 of the Probation of Offenders Act for a period of one year, provided he furnishes a personal bond of Rs. 30,000/- (Thirty Thousand) with one surety of the like amount to the satisfaction of the trial court with the stipulation that he shall keep peace and be of good behaviour for one year and that he will not commit any offence during the period of probation. 30,000/- (Thirty Thousand) with one surety of the like amount to the satisfaction of the trial court with the stipulation that he shall keep peace and be of good behaviour for one year and that he will not commit any offence during the period of probation. He will also mention in the bonds that he will appear before the Court concerned and receive the sentence, as and when called upon to do so. (iv) The appellant Mahender Singh is given the benefit of Section 12 of Probation of Offenders' Act also so that the impugned judgment will not come in his way in future, in any way. (v) The bonds, as mentioned above, will be furnished by the accused appellant Mahender Singh within a period of two months from, failing which the trial court shall take steps against him in accordance with law. (vi) The accused appellant Mahender Singh is on bail. His bail bonds are cancelled and he is directed to submit fresh bail bonds before the trial Court, as mentioned above. Impugned judgment stands modified, as indicated hereinabove.