JUDGMENT : Goverdhan Bardhar, J. This criminal appeal under Section 378(3) & (1) of Cr.P.C. has been preferred by the appellant-State against the judgment dated 30.05.1992 passed by the learned Additional Sessions Judge, Bhilwara in Sessions Case No.19/1989 by which he acquitted the accused-respondents for the offences under Sections 148, 307, 325, 324 & 323/149 IPC. 2. Brief facts of the case are that on 27.02.1989 the complainant Mithu submitted a written report at Police Station Sadar, Bhilwara alleging that on 26.02.1989 at about 09:00 PM when he was at his home, on hearing some noise coming from the Pond side, he went there and saw that Ganesh, Bhola and Mst. Heeru were lying there injured. The injured stated that the accused-respondents and their family members attacked them by axe and lathis and ran away. The villagers took the injured persons to the hospital. On the said report, the Police registered the FIR No. 28/89 for offence under Section 147, 148, 149, 325 and 323 IPC and started the investigation. After usual investigation, the police filed charge sheet against the accused-respondents for offences punishable under Sections 147, 148, 307, 324, 325 & 323 read with Section 149 IPC. 3. The learned trial court after hearing the arguments and considering the material on record, framed charges against accused-respondents for offences under Sections 148, 307, 325, 324 & 324/149 IPC. The accused respondents pleaded not guilty and claimed trial. 4. At the trial, the prosecution examined nine witnesses and thereafter the statements of the accused-respondents recorded under section 313 Cr.P.C. In defence, the accused-respondents examined two witnesses DW/1 Kajor and DW/2 Rameshwar lal. 5. At the conclusion of the trial, the learned trial Court vide judgment and order dated 30.05.1992 acquitted the accused-respondents for offences under Sections 148, 307, 325, 324 & 323/149 IPC. Hence, this criminal appeal by the appellant-State. 6. Learned Public Prosecutor appearing for the appellant-State submitted that Ganesh (PW-1), Bhola (PW-2) and Heeru (PW-3) are the eye witnesses of the occurrence and there is no reason to disbelieve their evidence but the learned trial court has failed to appreciate this important piece of evidence. It is further submitted that the evidence of eye witnesses is also corroborated by Dr. Avdhesh Mathur, Medical Jurist. All the weapons namely Kuhlari, Lathies etc. It is further submitted that the evidence of eye witnesses is also corroborated by Dr. Avdhesh Mathur, Medical Jurist. All the weapons namely Kuhlari, Lathies etc. have been recovered at the instance of the accused-persons in their presence but the learned trial court has disbelieved this important piece of evidence and has drawn wrong conclusion. The Counsel submitted that whole prosecution story cannot be thrown out merely on the ground that the independent witnesses are not available. The availability of the independent witnesses cannot be taken to be a ground of suspicion in every case. All the witnesses have suffered fracture and Ganesh has sustained serious injury on the vital part of his body and there is medical evidence that injury suffered by Ganesh was a dangerous to life, therefore, the learned trial court has committed an error in acquitting the accused respondents. 7. Mr. Farzand Ali, appearing for the accused-respondents has supported the impugned judgment and submitted that independent witnesses did not support the prosecution case and therefore, the respondents were rightly acquitted by the trial Court. Learned counsel further submitted that in this case, the prosecution failed to prove the case beyond reasonable doubt and therefore, the acquittal of the respondent does not call for any interference. 8. Heard and considered the arguments advanced at the bar and perused the judgment impugned passed by the learned Sessions Judge and the evidence on record. 9. The prosecution has examined injured witnesses namely Ganesh, Bhola and Heeru and the fact that the witnesses sustained injuries at the time and place of occurrence lends support to their testimony that they were present during occurrence, therefore, the learned trial court committed an error in not giving credence to the prosecution story. Nothing suspicious indicated in respect of their evidence which stood firm in spite of incisive cross-examination. Their evidence could not be discarded on the hypothesis that they were inimical to the accused-persons. PW-7 Dr. Avdhesh Mathur in his statement stated that he examined injured Ganesh and considering injury report he opined about the nature of injuries. He further submitted that he found injury on the vital part of the body. 10. The learned trial court has discarded testimony of injured witnesses on the ground that independent witnesses have not been examined by the prosecution. Avdhesh Mathur in his statement stated that he examined injured Ganesh and considering injury report he opined about the nature of injuries. He further submitted that he found injury on the vital part of the body. 10. The learned trial court has discarded testimony of injured witnesses on the ground that independent witnesses have not been examined by the prosecution. In the case of Jodhan v. State of M.P. [2015] 11 SCC 52 the Hon'ble Apex Court has held as follows : 28.... Another limb of submission which has been propounded by Mr. Sharma is that the prosecution has deliberately not examined other independent material witnesses who were present at the spot and, therefore, the whole case of prosecution becomes unacceptable. In this context, it would be profitable to refer to what has been held in State of A.P. v. Gian Chand, (2001) 6 SCC 71 . In the said case, the three-Judge Bench has opined that: 14...Non-examination of a material witness is again not a mathematical formula for discarding the weight of the testimony available on record howsoever natural, trustworthy and convincing it may be. The charge of withholding a material witness from the court levelled against the prosecution should be examined in the background of the facts and circumstances of each case so as to find whether the witnesses are available for being examined in the court and were yet withheld by the prosecution. It has been further ruled therein that the Court is required to first consider and assess the credibility of the evidence available on record and if the Court finds that the evidence adduced is worthy of credence, the testimony has to be accepted and acted upon though there may be other witnesses available, who could also have been examined but not examined. In Takhaji Hiraji v. Thakore Kubersing Chamansingh, (2001) 6 SCC 145 , it has been opined that if the material witness, who unfolds the genesis of the incident or an essential part of the prosecution case, not convincingly brought to the fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness who though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the Court to draw an adverse inference against the prosecution, but if there is an overwhelming evidence available, and which can be placed reliance upon, non-examination of such other witnesses may not be material. Similarly, in Dahari v. State of U.P., (2012) 10 SCC 256 , while dwelling upon the issue of non-examination of material witnesses, it has been succinctly expressed that when the witness is not the only competent witness, who would have been fully capable of explaining the factual score correctly and the prosecution stood fully corroborated by the medical evidence and the testimony of other reliable witnesses, it would be inappropriate to draw an adverse inference against the prosecution. 11. The learned trial court committed error in disbelieving the injured witnesses. The testimony of injured witnesses is corroborated by medical evidence. Therefore finding of acquittal is perverse. The view taken by the trial court is wholly unreasonable but for the purpose of determining the appropriate offence for which accused respondents to be held guilty on examination of evidence on record. As per injury report of Ganesh, injuries inflicted were not found capable of causing death. The prosecution has failed to establish that the injury inflicted on victim were of serious nature and that injury found is capable of causing death. From the evidence placed on record, intention and knowledge in terms of Section 307 could not be attributed to accused. For the purpose of Section 307 IPC what is material is the intention or the knowledge and not the consequence of the actual act done for the purpose of carrying out the intention. This section clearly contemplates an act which is done with intention of causing death but which fails to bring about the intended consequence on account of intervening circumstances. This section clearly contemplates an act which is done with intention of causing death but which fails to bring about the intended consequence on account of intervening circumstances. The intention or knowledge of the accused must be such as is necessary to constitute murder. In the absence of intention or knowledge which is necessary ingredient of Section 307 IPC, there can be no offence "of attempt to murder". Intent which is a state of mind cannot be proved by precise direct evidence as a fact it can only be detected or inferred from other factors. Some of the relevant considerations may be the nature of the weapon used, the place where injuries were inflicted, the nature of the injuries and the circumstances in which the incident took-place. On the evidence and facts on record, ingredients of offence under Section 307/149 IPC not made out. The present charges cannot travel beyond offences under Sections 148, 324, 324/149, 325, 325/149 IPC. Ganesh (PW-1), Bhola (PW-2), Mst. Heeru (PW-3) the injured witnesses in their statements stated that accused Balu and Kana were armed with Kulhari and in cross injured Ganesh admits that accused Balu inflicted only one injury whereas the injury No.5 on top of head found to be simple in nature. 12. In this matter, Investigating Officer Ajam Ali (PW- 9) in his statement has stated that on the information of the accused, Kulahri was recovered and recovery memo is Exhibit P/27. In Fireman Ghulam Mustafa v. State of Uttaranchal (Now Uttarakhand) [2015 Cr.L.R. (SC) 981] the Hon'ble Apex Court has held as under : "To justify a conviction under Section 307 IPC the Court has to see whether the act was done with the intention to commit murder and it would depend upon the facts and circumstances of the case. Although the nature of injuries caused may be of assistance in coming to a finding as to the intention of the accused, such intention may also be gathered from the circumstances like the nature of weapons used, parts of the body whether the injuries were caused, severity of the blows given and motive, etc." 13. Injured Ganesh (PW-1) in his statement has stated that ^^ckyw us dqYgkM+h dh ewaB dh rjQ ls esjs iSj ij ekjhA blds ckn dkuk us dqYgkM+h dh esjs ekFks ij ekjhA^^ Whereas in cross injured Ganesh has stated that ^^,d gh pksV ekjh FkhA^^ 14. Injured Ganesh (PW-1) in his statement has stated that ^^ckyw us dqYgkM+h dh ewaB dh rjQ ls esjs iSj ij ekjhA blds ckn dkuk us dqYgkM+h dh esjs ekFks ij ekjhA^^ Whereas in cross injured Ganesh has stated that ^^,d gh pksV ekjh FkhA^^ 14. Injured Bhola (PW-2) in his statement has stated that ^^ckyw vkSj dkuk us x.ks'k dks dqYgkM+h dh ekjh rFkk nwljksa us ydM+h ls ekjkA^^ 15. Injured Heeru (PW-3) in her statement has stated ^^lcls igys x.ks'k ds ckyw us dqYgkM+h dh ekFks esa ekjh FkhA^^ As per injury report of Ganesh, only one injury i.e. injury No.5 incised wound measuring 1"X0.2"X0.1" top of head which is a vital part of the body, was found and as per opinion of the medical jurist except injury Nos.4 & 8, other injuries are simple in nature. The injured witness in his statement has admitted that from the blunt side of Kulahri blow was given on the head. Looking to the nature of injury it is not established that severity of hit by kulhari was with intention to cause death. Therefore, it cannot be said that the injury on head was caused with intention to cause death. The grievous injuries are the fracture of rib and fracture in left hand. As per statement of the injured witness, it is true that the respondent-accused had acted in a state of fury but it cannot be said that they caused those injuries with the intention to cause death. Therefore the accused-respondents are not liable to be convicted for offence under Section 307 IPC and at the same time for having voluntarily caused simple and grievous hurt, they are liable to be punished under Section 325, 325/149, 324, 324/149 IPC. 16. In view of above, the prosecution has proved the charges for offences under Section 148/149, 324/149 and Section 325 read with Section 149 IPC against the accused-respondents and they are liable to be convicted accordingly. 17. The learned counsel for the accused respondents has argued that if the court comes to the conclusion that any offence is found proved against the accused respondents, this aspect that they have remained in custody for some period may be taken into consideration and the offences for which accused-respondents have been convicted are not punishable either with life imprisonment or with death and argued that they may be released on probation. Learned counsel for the accused-respondents has further submitted that after being released on bail by the learned Sessions Judge in the year 1989 and till today, the accused-respondents have been leading a peaceful life. During this period, they have neither disturbing the even tempo of life, nor posed a threat on the society at large. Even during the trial, the accused 11 respondents did not commit any offence. Looking to the totality of the case, the accused-respondents may be granted the benefit of probation under the Probation of Offenders Act, 1958. Reliance has been placed on the judgment of this Court in the case of Gopal @ Shri Gopal v. State of Rajasthan [RLW 2008 (4) Raj. 2973]. 18. Looking to the fact that the incident took place on 26.02.1989 and more than 27 years have passed and further this is an appeal against the acquittal judgment passed on 30.05.1992 by the learned trial court so also the fact that the accused respondents have remained in custody for some period and they have been convicted for offences not punishable either with life imprisonment or with death, therefore, this Court is of the opinion that instead of sentencing, the benefit of probation should be granted to the accused-respondents and while granting the benefit of probation, some compensation should be awarded to the injured P.W.1 Ganesh, PW.2 Bhola, PW.3 Mst. Heeru, who sustained simple and grievous injury at the hands of accused respondents. 19. For the reasons stated above, the benefit of probation shall be extended to accused-respondents (1) Shyo Nath, (2) Balu, (3) Nanda and (4) Kana, who shall be required to maintain peace and tranquillity for a period of one year from the date of this judgment. In case the said condition is violated, then the benefit of probation shall be cancelled and the trial court shall report to this Court. The accused-respondents shall be required to submit two bail bonds in the sum of Rs. 20,000/- with one personal surety of the same amount to the satisfaction of the concerned trial Court. The accused-respondents are directed to submit the bailbonds within a period of three months from the date of this judgment. It is further ordered that under Section 5 of the Probation of Offenders Act within three months the accused respondents shall deposit Rs. 20,000/- with one personal surety of the same amount to the satisfaction of the concerned trial Court. The accused-respondents are directed to submit the bailbonds within a period of three months from the date of this judgment. It is further ordered that under Section 5 of the Probation of Offenders Act within three months the accused respondents shall deposit Rs. 7,500/- each as compensation (in total Rs.30,000/-) and on depositing the said amount in the trial Court, the trial court shall issue notices to the injured and out of the amount of compensation, Rs.20,000/- be disbursed to injured Ganesh (PW-1), Rs.5,000/- to injured Bhola (PW-2) and Rs.5,000/- to injured Mst. Heeru. The appeal is disposed of with these observations.