JUDGMENT : Hon'ble Om Prakash-VII, J. Present Criminal Appeal has been filed by the sole appellant Om Prakash against the judgment and order dated 22.12.1987 passed by Additional Sessions Judge/Special Judge (E.C. Act), Jhansi in Sessions Trial no. 119 of 1987 (State Vs. Om Prakash), under Section 307 IPC, Police Station Spiri Bazar, Jhansi convicting the appellant under Section 307 IPC and sentencing him to undergo 3 years R.I. and fine of Rs. 500/-. Heard Sri Ray Sahab Yadav, learned counsel for the appellant and Sri Abdul Majeed, learned A.G.A. for the State. Prosecution case in nutshell is that on 5.5.1987 written report (Ext. Ka-1) scribed by Ashok Kumar Saraswat on behalf of K. R. Saraswat (injured) was moved at Police Station concerned mentioning therein that informant K. R. Saraswat was Head Clerk in the Office of District Animal Husbandary, Jhansi and was busy in his work in the office. At about 4.30 P.M. on 5.5.1987 the accused appellant who was posted as Pashudhan Vikas Sahayak, Akseo, Mauranipur, Jhansi came in the office and told that "AAPNE MERA STHANTARAN KAR DIYA HAI ACCHA NAHI KIYA". On this, informant told that transfer is done by the D.L.O. but the accused appellant told that he knows everything and transfer is the act of informant. Informant requested the appellant to go outside but the accused told that he will not leave the office until and unless his transfer is revoked/cancelled and if it is not done he will kill the informant. Again the informant told the accused appellant in anguish to leave the place and do not tease him. On this, accused appellant took out a knife from his pocket and started abusing and stabbing the informant. Informant shouted and rescued himself. It is also mentioned in the written report that injury was caused by the appellant on the stomach, mouth and neck of the injured and due to this informant become unconscious. As soon as the informant regained the consciousness, reached in the office of the Joint Development Commissioner, Jhansi and saved his life. If the informant would not have left the place of occurrence he would have been killed by the accused-appellant. Employees present in the above mentioned office saved and took him to the Medical College. The written report was got prepared by one Ashok Kumar Saraswat son of K. R. Saraswat. On the basis of written report (Ext. If the informant would not have left the place of occurrence he would have been killed by the accused-appellant. Employees present in the above mentioned office saved and took him to the Medical College. The written report was got prepared by one Ashok Kumar Saraswat son of K. R. Saraswat. On the basis of written report (Ext. Ka-1); chik F.I.R. (Ext. Ka-2) and the G.D. entry (Ext. Ka-3) were prepared at Police Station concerned on the same day at 6.40 P.M. registering at crime no. 145 of 1987 under Section 307 IPC against the accused appellant. Informant was hospitalised in the Medical College, Jhansi. The then City Magistrate, Jhansi on the same day at 8.25 P.M. recorded the statement of the injured K. R. Saraswat as dying declaration, which is Ext. C-2 on record. Injury report Ext. Ka-9 and the X-ray report (Ext. Ka-8) were prepared. Investigating Officer inspected the spot, prepared the site plan (Ext. Ka-5), recorded the statement of the witnesses under Section 161 Cr.PC. and after completing necessary formalities submitted charge sheet (Ext. Ka-7) against the accused appellant under Section 307 IPC. Concerned Magistrate took the cognizance of the case and on appearance of the accused, committed the case to the Sessions Court as the matter was exclusively tribal by the Sessions Court. Accused appeared and charge under Section 307 IPC was framed against him to which he pleaded not guilty claiming trial. In order to prove its case prosecution examined P.W.-1 Mathura Prasad; P.W.-2 Gokul Prasad; P.W. -3 K. R. Saraswat; P.W.-4 S.I. Ahibaran Singh; P.W.-5 Dr. Neeraj Jain. Court also examined Dr. R. P. Gupta as C.W.-1. Bed Head Ticket relating to the injured was also filed in the court. On completion of the prosecution evidence, statement of the accused appellant under Section 313 Cr.P.C. was recorded. Accused specifically stated that witnesses have made false statement, he is innocent and has not committed present offence. Injured P.W.-3 K. R. Saraswat was the Leader of his association and he was pressurising the appellant to support him, when he denied this false case was started against him. Neither he caused any injury to the injured nor was present on the day of incident at the place of occurrence. Trial court after hearing the parties vide impugned judgment and order dated 22.12.1987 convicted and sentenced the accused appellant, as above, hence this appeal. Neither he caused any injury to the injured nor was present on the day of incident at the place of occurrence. Trial court after hearing the parties vide impugned judgment and order dated 22.12.1987 convicted and sentenced the accused appellant, as above, hence this appeal. Sri Yadav learned counsel for the appellant submits that prosecution failed to establish the place of occurrence. Injured witness has changed the version stage to stage. There was contradiction on material point in the statement of the injured witness i.e. P.W.-3 K. R. Saraswat but the court below ignoring all these facts illegally held that prosecution has proved its case beyond reasonable doubt. Depth of the injuries said to have been caused by the accused appellant was not proved, hence finding recorded by the trial court that accused appellant has committed offence under Section 307 IPC is perverse. P.W.-1 and P.W.-2 both have not supported the prosecution case. Prosecution case is also not supported by any independent evidence. Medical report is also against the oral evidence. Thus it was further prayed that in case the appeal is not allowed, punishment imposed upon the appellant be converted into fine only. At this juncture learned counsel appearing for the appellant placed reliance on the decision of this Court in Criminal Appeal No. 3089 of 1982 (Moti Lal Vs. State of U. P.) dated 6.2.2014. Learned A.G.A. argued that findings recorded by the trial court are in accordance with the evidence. There is no illegality or perversity in the finding. Appellant caused injuries to the injured with the intention to kill him. It was further argued that injuries said to have been sustained by the injured are on vital part. Only on the ground that depth of the injuries was not probed in the matter, it cannot be held that offence under Section 307 IPC is not made out. Further submission is that trial court itself has adopted a lenient view, hence, no further leniency could be given to the appellant in the present matter. Contradiction elicited in the matter are of minor nature which do not affect the prosecution evidence on material point. I have considered the rival submissions, gone through the entire record as well as the case law relied upon by the learned counsel for the appellant. Contradiction elicited in the matter are of minor nature which do not affect the prosecution evidence on material point. I have considered the rival submissions, gone through the entire record as well as the case law relied upon by the learned counsel for the appellant. In this matter, as is evident from the record, incident is said to have taken place on 5.5.1987 at 4.30 P.M. Informant was the Head Clerk in the office of Animal Husbandary Department, Jhansi. Accused appellant was working as Pashudhan Vikas Sahayak, Akseo, Mauranipur, Jhansi. Motive to commit the present offence assigned against the appellant in the written report is that appellant was transferred from his post to another place and due to that reason accused appellant came in the office of P.W.-3, informant, and caused injuries to him, as is alleged in the F.I.R., with the use of knife. Injured was taken to the hospital on the same day and remained hospitalised up to 18.5.1987. F.I.R. was also lodged on the same day at 6.40 P.M. on the basis of written report prepared by the son of the injured and signed by the injured himself. Thus considering the time of incident and also the steps taken just after the incident for treatment of the injured in the matter it cannot be said that F.I.R. in any manner is at belated stage. Since no question was raised on this point on behalf of the appellant hence court proceeded to decide other issues raised in this matter by the appellant directly. From the perusal of injury report (Ext. Ka-9) it is also evident that following injuries were found on the body of the injured. 1. An incised wound of 1.4 cm. x 0.2 cm x bone touch over left side of the face 3.5 cm in front of left ear, fresh bleeding present, obliquely situated. 2. Incised wound 1 cm x 0.2 cm x depth kept under observation an another incised wound 1.2 cm x 0.2 cm x depth was also found near to this injury. These two injuries were on the chest of the injured. 3. Incised wound 1 cm x 0.2 cm over middle of neck, depth kept under observation. 4. Tenderness In the opinion of the Doctor injury no. 1 was simple in nature. These two injuries were on the chest of the injured. 3. Incised wound 1 cm x 0.2 cm over middle of neck, depth kept under observation. 4. Tenderness In the opinion of the Doctor injury no. 1 was simple in nature. Since depth was not proved by the Doctor examining the injured hence no exact opinion about the nature of the injury no. 2 and 3 were given by the Doctor. It was also opined that all injuries were caused by sharp edged object except injury no. 4 and were fresh in duration. In the X-ray, nothing was mentioned about the nature and depth of the injuries. In this matter P.W.-1 Mathura Prasad; P.W.-2 Gokul Prasad who were working in the office of Joint Development Commissioner have been examined by the prosecution. Both the witnesses were declared hostile by the prosecution as they did not support the prosecution story. From the perusal of the statement made by them before the court, it is evident that P.W.-1 Mathura Prasad has clearly stated in his statement that injured came in his office situated on the ground floor and told that accused appellant caused injuries to him. He also saw that blood was oozing from the injuries. At that time P.W.-1 was present in the office and has also informed the police. Thereafter police reached there and injured was taken to the hospital but P.W.-1 has specifically stated that he did not see the accused appellant at the place of occurrence. P.W.-2 Gokul Prasad has also not supported the prosecution story in any manner. As far as the statement of P.W.-1 Mathura Prasad is concerned the statement is relevant in this matter only to the extent that immediately after the incident injured came in his office and told that accused appellant has caused injuries to him. Thus the statement made by P.W.-1 comes under the definition of res gastae and could be considered as piece of evidence against the accused appellant. As far as the statement of P.W.-3 K. R. Saraswat is concerned, he has stated before the court that ousting to the appellant from the office he moved towards the bath room and thereafter the accused-appellant caused injuries to him. To save himself P.W.-3 rushed towards the office of Joint Development Commissioner. When this witness was in the hospital statement in the form of dying declaration (Ext. To save himself P.W.-3 rushed towards the office of Joint Development Commissioner. When this witness was in the hospital statement in the form of dying declaration (Ext. C-2) was also recorded by the City Magistrate, Jhansi in which he has stated that when the appellant was ousted from the office he again came in the office after half an hour and caused the present offence. Trial court while scrutinising the prosecution evidence was of the opinion that contradiction occurred in the prosecution evidence regarding place of occurrence is not material fact as in all the the statement recorded as dying declaration or before the court, this witness stated the place of occurrence his office. Said dying declaration was treated as previous statement of P.W.-3. Court below was also of the opinion that gallery adjacent to the office was the part of the office, hence injuries were caused inside the office or in the gallery is not material fact. Assertion of the P.W-3 is that injury was caused while injured was in his office, he rushed to save himself to the office situated in the ground floor. Injuries found on the body of the injured were also examined on the same day within few hours, duration of the injuries was fresh. Oral evidence of the P.W.-3 that accused appellant came in his office, abused him, caused injuries are supported with the medical evidence. Finding recorded by the trial court on this point is also in accordance with the evidence. There is no perversity or illegality in the finding. So far as the submission on the point that prosecution evidence is not supported by any independent evidence is concerned P.W.-3 K. R. Saraswat is the injured witness. He was present all alone in his office at the time of said occurrence. Accused appellant came there and caused the injuries upon him. Motive to commit the present offence is also established by the prosecution beyond reasonable doubt. Statement of P.W-3 regarding date and time of the incident is supported by the statement of P.W.-1 Mathura Prasad, who was present in the office situated on the ground floor where the injured reached just after the incident and told the entire incident happened against him which is admissible in evidence as res gaste. Minor contradictions on the point of place of occurrence is not of such nature which demolishes the prosecution case. Minor contradictions on the point of place of occurrence is not of such nature which demolishes the prosecution case. So far as the contradiction on the point of coming out of the appellant from the office at first instance and again entering in the office is concerned, on this score the veracity of the statement of injured witness i.e. P.W.-3 is not shaken as he is an injured witness. Thus there is no illegality or perversity in the findings recorded by the trial court regarding date, time and place of occurrence, the same are not liable to be interfered with. As far as the manner of incident is concerned, P.W.-3 was all alone in his office. He has consistently stated in his statement recorded before the City Magistrate and the statement recorded before the trial court the same fact that accused appellant caused injuries with knife to him. Thus the fact mentioned in the F.I.R. on this point finds support not only with the statement of P.W.-3, the injured but also with the medical evidence. Prosecution was successful in establishing that accused appellant caused injuries to the injured (P.W.-3) on the date, time and place in the manner stated by P.W.-3. Thus in view of the above, this Court is of the opinion that prosecution was also able to prove the manner of the incident by its evidence beyond reasonable doubt. Finding recorded by the trial court on this point is also not illegal or perverse. Now the question is whether on the basis of statement of P.W.-3 and the Doctor who examined the injured, offence under Section 307 IPC is made out or not. Finding of the trial court is that although depth of the injuries were not probed but P.W.-3 has stated that accused appellant caused injuries with the intention to kill the injured, hence offence under Section 307 IPC is clearly made out. If the statement made by the injured i.e. P.W.-3 recorded by the City Magistrate and the statement made before the trial court are confronted with the finding of the trial court and the statement of the Doctor concerned it is evident that depth of the injury no. 2 and 3 was not probed. There is no other evidence on record to establish the depth of the injuries. 2 and 3 was not probed. There is no other evidence on record to establish the depth of the injuries. In the statement recorded by the City Magistrate on the same day nothing was stated by the injured to fulfill the essential ingredients to constitute the offence under Section 307 IPC i.e. injury was caused with the intention to kill him. Only fact is mentioned that when injured felt threat to life then he rushed to the office situated on the ground floor to save himself. Thus in the facts and circumstances of the case and on the basis of the injuries found on the body of injured and also on the basis of oral evidence, finding recorded by the trial court regarding commission of the offence under Section 307 IPC has to be scrutinised carefully and minutely. Admittedly in this matter, injury no. 1 is simple in nature. Injury no. 4 is mere tenderness. Dr. R. P. Gupta, who has been examined in this matter, has stated that injury no. 2 and 3 would have been fatal to the life. Opinion of the Doctor is mere opinion,. In view of the above if the nature and size of the injuries no. 2 and 3 are taken into consideration then it emerges that although injury no. 2 and 3 are on vital part but are not of grievous nature. Depth of injury no. 2 and 3 is not probed. Injury no. 2 is in the size of 1 cm x 0.2 cm only. Injury no. 3 is also in the size of 1 cm x 0.2 cm. Nothing abnormality is reported in this matter to show that injuries are grievous in nature. In the statement recorded by the City Magistrate nothing is mentioned that injuries were caused by the accused appellant with the intention to kill the injured. Referring to the facts mentioned in the F.I.R. and also the statement recorded before the trial court specific question regarding the nature of injury no. 2 and 3 was put before C.W.-1 during cross examination but this witness could not explain this fact satisfactorily. Referring to the facts mentioned in the F.I.R. and also the statement recorded before the trial court specific question regarding the nature of injury no. 2 and 3 was put before C.W.-1 during cross examination but this witness could not explain this fact satisfactorily. Thus after close scrutiny of the nature of the evidence and statement of the witnesses i.e. P.W.-3 and the C.W.-1, this Court is of the view that finding recorded by the trial court that prosecution was able to prove charge under Section 307 IPC against the appellant beyond reasonable doubt is not sustainable. Injuries are caused by the sharp edged weapon but they were simple in nature. From the prosecution evidence it is also not established that injuries were caused with the intention to kill the injured, thus, in the opinion of the court, at the most on the basis of totality of the prosecution evidence offence under Section 324 IPC may be taken to be proved beyond reasonable doubt or it can safely be held in this matter that only offence under Section 324 IPC is made out from the prosecution evidence. Finding recorded by the trial court on the point of constitution of offence under Section 307 IPC is liable to be interfered with. Thus the appeal is liable to be allowed in part and finding recorded by the trial court regarding the guilt of the appellant for the offence under Section 307 IPC is liable to be altered for the offence under Section 324 IPC. As far as the sentence to the appellant for the offence under Section 324 IPC is concerned, since the charge proved i.e. under Section 324 IPC is lesser offence than the offence under which charge had been framed against the appellant i.e. Section 307 IPC, hence considering the entire facts and circumstances of the case and the evidence available on record, this Court is of the view that if the appellant is sentenced for the offence under Section 324 IPC for the imprisonment already undergone along with fine of Rs. 15,000/-, not only the purpose of awarding proper and adequate sentence to the appellant will sub-serve but it will be in the conscience of the court as well as the society both. Thus the appeal is allowed in part. 15,000/-, not only the purpose of awarding proper and adequate sentence to the appellant will sub-serve but it will be in the conscience of the court as well as the society both. Thus the appeal is allowed in part. Appellant is held guilty for the offence under Section 324 IPC and is sentenced for the imprisonment already undergone along with fine of Rs. 15,000/-. In default of payment of fine the appellant will also serve additional imprisonment of two months. Appellant is acquitted for the charges framed under Section 307 IPC. He is on bail, therefore, need not to surrender. Sureties bonds are cancelled and sureties are discharged from the liabilities. Material exhibit, if any, be dealt with in accordance with law. Copy of this order be sent to the court below forthwith along with lower court record for compliance.