Judgment : Hon'ble Mrs. Ranjana Pandya, J. 1. Challenge in this appeal to the judgment and order dated 15.12.1987, passed by Sri Nirvikar Gupta, the then Vth Additional Sessions Judge, Pilibhit in Sessions Trial No. 84 of 1986 (State vs. Ram Bharosey and others), arising out of Case Crime No. 371 of 1985, P.S. Puranpur, District Pilibhit, whereby the appellant Ram Bharosey has been found guilty for the offence punishable under Section 307 I.P.C. and sentenced to undergo four years R.I. and to pay a fine of Rs. 1000/- with default stipulation. 2. Filtering out unnecessary details, the prosecution version as unfolded during trial is that on 16.12.1985, the brother of the informant namely Matadeen had de-chained the cows who disturbed the accused Rameshwar Dayal and Ram Bharosey. At this Matadeen drove his cows away from there but the accused Ram Bharosey, Rameshwar Dayal, Vijay Kumar and Ram Gopal armed with knives and lathi came and started assaulting the brother of the informant namely Matadeen due to which he sustained injuries on his stomach. The occurrence took place at 12 O'clock in the day time on 16.12.1985. This occurrence was witnessed by Hari Om and Godhan Lal, hence the report was lodged. 3. On the basis of this report the case under Section 307 I.P.C. was registered at P.S. Puranpur. The injured Matadeen was referred to district hospital Pilibhit for medical examination, where Dr. S.K. Agrawal, PW-4 examined him at 03:15 P.M. on 16.12.1985 and found the following injuries on his person :- (i) Incised wound of 2.5 cm. X 1 cm. X depth not certain on right side of chest in 8th inter coastal space in nipple line kept under observation. A clot visible surgical emphysema in an area of 5 cm. around the wound. In the opinion of the doctor, the injuries were caused by sharp edged object and kept under observation. The duration was opined to be fresh. 4. The Investigating Officer inspected the spot, prepared the site plan and the investigation ended into the charge sheet against the accused. 5. After committal of the case to the court of session, charge for the offence punishable under Section 307 was framed against the accused person, who abjured the guilt and claimed trial. 6. In order to prove its case, the prosecution has examined PW-1 Chheda Lal. 5. After committal of the case to the court of session, charge for the offence punishable under Section 307 was framed against the accused person, who abjured the guilt and claimed trial. 6. In order to prove its case, the prosecution has examined PW-1 Chheda Lal. He is an eye witness and the informant, who proved the written report as Exhibit Ka-1. PW-2 is Matadeen who is injured witness. PW-3 is Hari Om who is also an eye witness. PW-4 is Dr. S.K. Agrawal who examined the injured and proved the medical report as Exhibit Ka-2. PW-5 is S.I. Dinesh Singh who interrogated the witnesses, he inspected the spot, prepared site plan and proved it as Exhibit Ka-3. After investigation, this witness has submitted charge sheet against the accused person which was proved as Exhibit Ka-5. This witness further proved the copy of G.D. as Exhibit Ka-6. 7. The accused in his statement under Section 313 Cr.P.C. has again denied the entire prosecution story and stated that Matadeen did not have any animals. He himself had no "Barihan". The accused Ram Bharosey has further stated that he had gone to the farm of Hari Babu where his cycle was kept outside. The servant of Hari Babu took his cycle. When the servant was returning with the cycle, he abused the appellant, at which the police report was lodged. 8. The remaining accused also denied the occurrence. Accused Vijay Kumar Pathak has stated that he had lodged a report against the informant party for assaulting him. In defence, the present report has been lodged. His medical report is on record. The accused examined DW-1 Dr. J.K. Sharma as defence witness who proved the medical report of Vijay Kumar Pathak non appellant as Exhibit Kha-1. The following injuries were found on the body of co-accused Vijay Kumar Pathak who has been acquitted by the trial court by giving benefit of doubt. (i) Lacerated wound 4 cm. X 0.5 cm. X scalp deep on the left side of fore head, 6 cm. above the middle line of left eyebrow. (ii) Multiple contusion over an area of 8 cm. X 4 cm. on the middle and upper part of back of left chest, blue. (iii) Contusion 3 cm. X 2 cm. on the outer aspect of back of right lumber region oblique, blue. (iv) Contusion 4 cm. X 2 cm. above the middle line of left eyebrow. (ii) Multiple contusion over an area of 8 cm. X 4 cm. on the middle and upper part of back of left chest, blue. (iii) Contusion 3 cm. X 2 cm. on the outer aspect of back of right lumber region oblique, blue. (iv) Contusion 4 cm. X 2 cm. on the outer aspect of middle line of left thigh oblique, blue. 9. Learned trial court after hearing the parties' counsel has convicted the accused appellant Ram Bharosey as aforesaid and has acquitted the remaining accused by giving them benefit of doubt. 10. Feeling aggrieved, the appellant has come up in this appeal. 11. I have heard the learned counsel for the parties at length and perused the original record of the trial court. 12. Learned counsel for the appellant while castigating the impugned judgment has argued that the learned trial court has not given any plausible reason to record conviction of the appellant for the offence punishable under Section 307 I.P.C; that the alleged injuries sustained by the injured are simple, neither dangerous nor fatal to life; that even according to the supplementary report Exhibit Ka-2, no bony injury was seen in the x-ray chest. The x-ray plate has not been brought on record by the prosecution, so the trial court has grossly erred in convicting the appellant for the offence punishable under Section 307 I.P.C.; that in the facts and circumstances of the case, at the most, an offence punishable under Section 324 I.P.C. is made out and lastly it has been submitted that the accused has been in jail for about 19 months, so he may be sentenced to imprisonment already undergone by him for the offence punishable under Section 324 I.P.C. 13. Per contra, learned A.G.A. while supporting the impugned judgment has contended that it is a broad-day light case having direct evidence with strong motive against the accused, so there is no illegality, factual or legal in the findings recorded by the learned trial court and the appeal is liable to be dismissed. 14. Before proceeding to analyze the evidence on record to appreciate the arguments advanced by the parties' counsel, it would be in the fitness of things, if the statements given by the prosecution witnesses in their examination-in-chief are noted in brief. 15. 14. Before proceeding to analyze the evidence on record to appreciate the arguments advanced by the parties' counsel, it would be in the fitness of things, if the statements given by the prosecution witnesses in their examination-in-chief are noted in brief. 15. PW-1 is Chheda Lal who is informant of this case and has stated that on the day of incident Matadeen was taking his animals for grazing. He also accompanied him. As soon as they reached "Mohra" of Ram Bharosey, one cow entered into the "Bariha" of Ram Bharosey and started grazing there. At this Ram Bharosey started abusing Matadeen who took away his cow from there and requested not to abuse him but the appellant Ram Bharosey continued using abusive language, then Matadeen also abused Ram Bharosey. At this Ram Bharosey brought a knife from his house and his brothers Rameshwar Dayal, Vijay Kumar and Ram Gopal came out. All the four started assaulting Matadeen with lathi. Ram Bharosey shouted that Matadeen should be killed at this Ram Bharosey hit Matadeen with a knife who fell down, at which Hari Om and Godhan Lal scolded the accused due to which the accused fled away. 16. PW-2 is Matadeen, the injured who has deposed that he was taking his animals for grazing. He was accompanied by his brother Chheda Lal. As soon as he reached near the house of Ram Bharosey, one cow trespassed into the "Barihan" of Ram Bharosey. He brought back the cow from the "Barihan" but the accused Ram Bharosey started abusing him. He requested Ram Bharosey not to abuse him, at which Ram Gopal, Rameshwar Dayal and Vijay armed with lathi and Ram Bharosey armed with knife attacked him. Ram Bharosey said that Matadeen should be killed. Ram Bharosey attacked Matadeen with knife. Hari Om and Godhan Lal came shouting, at which the accused fled away. When this witness went to the hospital for medical examination, the doctor stated that the injury was dangerous, hence, he was sent to Pilibhit where he was medically examined and he remained admitted in the hospital for 14 days, where he was treated. 17. PW-3 is Hari Om who has stated that on hearing the sound for help, he reached near the house of Lokram. He saw that Ram Bharosey was armed with knife, whereas, Vijay Kumar, Ram Gopal and Rameshwar Dayal were armed with lathi. 17. PW-3 is Hari Om who has stated that on hearing the sound for help, he reached near the house of Lokram. He saw that Ram Bharosey was armed with knife, whereas, Vijay Kumar, Ram Gopal and Rameshwar Dayal were armed with lathi. They all surrounded Matadeen. Ram Bharosey said that Matadeen should be killed and he attacked Matadeen with knife which hit him after that, Chheda Lal took away Matadeen. 18. On perusal of the original record of the trial court in particular the evidence of the prosecution of witnesses, it transpires that the incident has been fully proved through the statements of PW-1 Chheda Lal, PW-2 Matadeen and PW-3 Hari Om as against the present appellant. The presence of the eye witnesses near the place of occurrence at the relevant time is probable and has been duly proved. There are no material contradictions or inconsistencies in the testimony of PW-1 to PW-3. As far as the present appellant is concerned, the incident had taken place at about 12 O'clock in the day time on 16.12.1985 and report was was lodged on the same day at 12:20 hrs. The distance to the police station from the place of occurrence being 2 Kms. The injured was medically examined at the hospital by Dr. S.K. Agrawal on 16.12.1985 at 03:15 P.M. who was sent for medical examination to the hospital through Constable Om Dutt Gaur. Thus, there is no delay in reporting the crime to the police station and the medical examination of the injured was also prompt. 19. PW-2 Matadeen has clearly stated in his examination-in-chief that the injury was caused by the accused Ram Bharosey which hit him on the right side of his chest. Dr. S.K. Agrawal PW-4 has stated that there was a blood clot on the injury and there was surgical emphysema around the injury in a circle of 5 cms. He has further stated that the injury was kept under observation. 20. Although, Dr. S.K. Agrawal, PW-4 has noted in the medical report and has stated in his statement that patient had been hospitalized, but neither the injured nor the doctor had stated as to what kind of treatment was given to the injured as an indoor patient in the district hospital or in any other hospital. Further, it has been noted in the injury that "depth not probed". Further, it has been noted in the injury that "depth not probed". No bed head ticket of the injured had been filed which could have thrown some light on the line of treatment given to the injured. In these circumstances, it was imperative for the prosecution to lead evidence about the nature of the injuries, which could have enabled the Court to examine and assess its gravity. Although, Dr. S.K. Agrawal PW-4 has stated in his statement that any injury could be fatal, if there would have been profuse bleeding. He has also stated that since below the injury, the liver was present, hence, it could be fatal. But there is nothing on record to show that the present injury was actually fatal. 21. To justify a conviction under Section 307 I.P.C., It is not essential that bodily injury capable of causing death, should have been inflicted. Although the nature of injury actually caused, may often give considerable assistance. Coming to the finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even in some cases, be ascertained without any reference at all to actual wounds. The Section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result. So far as the present assault is concerned, still there may be cases in which the culprit would be liable under this Section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in this Section. An Attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof has been laid down by the Hon'ble Apex Court in State of Maharashtra vs. Balram Bama Patil, AIR 1983 SC 305 . 22. It is true that merely because the injuries are simple in nature, it cannot be said that the offence made out would not all be covered under Section 307 I.P.C. It would all depend upon the facts of a given case. 22. It is true that merely because the injuries are simple in nature, it cannot be said that the offence made out would not all be covered under Section 307 I.P.C. It would all depend upon the facts of a given case. Intention has to be seen in every case. 23. It also emerges that the sole injury, even if accepted to be attributed to the appellant, was simple in nature and there is no iota of evidence to show that this injury was sufficient in the ordinary course of nature to cause death. Resultantly, the evidence can be said to indicate involvement of the appellant in an offence punishable for simple hurt with a deadly weapon like knife. 24. In the facts and circumstances of the case, it is difficult to accept that knowledge or intention can be attributed to the appellant about the likely death of the victim by causing the injuries, because he has not repeated the attack particularly when there was no possible protest either from the injured or the eye witnesses. If the intention would have been to kill the injured the accused Ram Bharosey could have repeated the injuries and could have easily killed the injured. 25. In AIR 1982 SC 2013, Kundan Singh vs. State of Punjab, the Hon'ble Apex Court has observed as under:- "We are of the view that having regard to the facts and circumstances of the present case and particularly in view of the fact that P.W. 6 and P.W. 7 were in the courtyard of their house when the appellant fired gun shots and he could not, therefore, have intended to injure them, the conviction of the appellant under Section 307, I.P.C. was not justified. We think that the conviction of the appellant could be maintained only under Section 324 of the I.P.C. since P.W. 6 and P.W. 7 received simple injuries. We accordingly allow the appeal and alter the conviction of the appellant to one under Section 324 of the I.P.C. for causing simple injuries to P.W. 6 and P.W. 7 and since the appellant has already suffered imprisonment for about 16 months, we direct that the sentence imposed on the appellant be reduced to that already undergone by him and that he may be set at liberty forthwith." 26. I would also like to place the law laid down by the Apex Court in AIR 1996 SC 3236 , Merambhai Punjabhai Khachar and others vs. State of Gujarat, wherein an attempt to commit murder by fire arm and a pellet hit the victim, however, the Apex Court held that Section 307 I.P.C. cannot be held to have been satisfied and the conviction was altered to Section 324 I.P.C. 27. In the case of Ramesh vs. State of U.P., AIR 1992 SC 664 , wherein the injury was found on the back of the injured. He was tried along with two other was convicted under Section 307/34 I.P.C. and sentenced to undergo rigorous imprisonment for four years, while the two others were acquitted, was partly allowed by the Apex Court. His conviction was altered into Section 324 I.P.C. sentence was reduced to the period already undergone with fine of Rs. 3000/-, which was to be paid to the complainant as compensation. 28. In the instant case, as regards the intent of the accused-appellant is concerned, a perusal of the injured witness Matadeen PW-2 clearly reveals that there was no intention of the accused-appellant to kill the injured. Had it been so he was not required to assign any reason for inflicting him the injury. Thus there was only one injury on the body of the injured caused by sharp object which was on the chest i.e. on the vital part of the body but there was no repeat of the injury, nor there was any intervening circumstance to do away with the life of the injured. 29. Thus, I am of the view that conviction of the appellant under Section 307 I.P.C. cannot be sustained and he is liable to be convicted for the offence punishable under Section 324 I.P.C. 30. In view of the aforestated reason, the appeal is partly allowed. The conviction of the appellant under Section 307 I.P.C. and sentence awarded to him are set aside. However, he is found guilty for the offence punishable under Section 324 I.P.C. and is sentenced to the period already undergone by him i.e. 19 months. 31. The appellant is in jail. He shall be released forthwith in this case. The provisions of Section 437A Cr.P.C. shall be complied with. 32. Let the copy of this judgment be sent to C.J.M. concerned for compliance. ———————