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2018 DIGILAW 1082 (BOM)

Waman v. State of Maharashtra

2018-04-19

ROHIT B.DEO

body2018
JUDGMENT : 1. The appellants-accused are aggrieved by the judgment and order dated 11-1-2007 rendered by the learned Sessions Judge, Chandrapur in Sessions Case 120/2004, by and under which the accused are convicted for offence punishable under Section 307 read with Section 34 of the Indian Penal Code (“IPC” for short) and are sentenced to suffer rigorous imprisonment for seven years and to payment of fine of Rs.2,000/- each. The accused are, however, acquitted of offence punishable under Section 342 read with Section 34 of the IPC. 2. The prosecution case : The accused and injured Dhanraj Nannaware (P.W.3) were residing at village Ghosari, within the jurisdiction of Police Station Bhadrawati. The incident occurred at 1200 noon or thereabout on 07-3-2004, which was the Dhulivandan day. Dhanraj had gone to the house of the father of the accused one Tulshiram Ghodmare to borrow money. Since Tulshiram was not present, the injured asked his wife to lend the amount and when she went inside the house to bring the amount, the injured was sitting on the cot. In the meanwhile, accused Waman arrived at the scene of occurrence and alleging that Dhanraj subjected his wife to witchcraft (black magic), assaulted Dhanraj on the head by stone and stick. Accused Arun also arrived at the scene of occurrence and assaulted Dhanraj on the head by stone. Dhanraj was also assaulted on the head by the lid of tin container. The legs of the injured Dhanraj were tied by rope and he was taken in the cattle shed. One Yogesh Dhone informed the Police Patil about the incident, the Police Patil arrived at the scene of occurrence and then informed the police telephonically. Police came to the village at 400 p.m. Injured Dhanraj was lying in the cattle shed of the father of the accused. Kawadabai and others who attempted to intervene were not permitted access to the courtyard and were threatened by the accused, is the prosecution version. The police recorded the statement of Kawadabai and registered offence under Sections 307 and 342 read with Section 34 of the IPC. The stones and lid of tin container and the blood stained shirt of the injured Dhanraj were seized and sent to Chemical Analyzer. The police recorded the statement of Kawadabai and registered offence under Sections 307 and 342 read with Section 34 of the IPC. The stones and lid of tin container and the blood stained shirt of the injured Dhanraj were seized and sent to Chemical Analyzer. Statements of witnesses were recorded and upon completion of the investigation charge-sheet was submitted in the Court of Judicial Magistrate First Class, Bhadrawati who committed the proceedings to the Sessions Judge. The learned Sessions Judge framed charge (Exhibit 9) for offence punishable under Sections 307 and 342 read with Section 34 of the IPC. The accused abjured guilt and claimed to be tried. The defence is of total denial and further that injured Dhanraj fell down in the courtyard of the house of the father of the accused under influence of liquor and sustained injuries. 3. Heard Miss Ankita Sarkar, learned Counsel for the accused and Smt. S.V. Kolhe, learned Additional Public Prosecutor for the respondent. 4. Miss Ankita Sarkar, learned Counsel makes a two fold submission. The first submission is that the evidence on record is too sketchy and fragile to prove beyond reasonable doubt that the accused assaulted the injured Dhanraj and the second submission is that even if the evidence is taken at face value, the prosecution has not established offence punishable under Section 307 of the IPC and at the most, the accused can be convicted under Section 324 of the IPC. The second submission is made arguendo and in the alternate, without prejudice to the submission that the accused are entitled to a clean acquittal. Per contra, Smt. S.V. Kolhe, learned Additional Public Prosecutor would submit that it is proved beyond reasonable doubt that the accused assaulted the injured Dhanraj. The vital part on which the injuries are inflicted is sufficient to attribute the requisite intention or knowledge to the accused, as would attract Section 307 of the IPC, is the submission. 5. P.W.1 Bhanudas Kulmethe is the Police Patil who was informed about the incident by Yogeshwar Dhone. P.W.1 is not a witness to the assault. However, he has deposed that when he went to the house of the father of the accused, the injured was lying on the floor of the cattle shed of Tulshiram Ghodmare. The clothes of the injured were blood stained, is the deposition. P.W.1 is not a witness to the assault. However, he has deposed that when he went to the house of the father of the accused, the injured was lying on the floor of the cattle shed of Tulshiram Ghodmare. The clothes of the injured were blood stained, is the deposition. P.W.1 has deposed that he informed the police telephonically and it was at 400 p.m. that the police visited the spot of the incident. P.W.1 was declared hostile since he volunteered that the police did not record his statement as per his narration. Notwithstanding that P.W.1 is declared hostile and is cross-examined by the learned Additional Public Prosecutor, the portion of his testimony to the effect that when he visited the house of the father of the accused injured Dhanraj was lying in the cattle shed, supports the version of the prosecution. 6. P.W.2 Abhiman Nannaware is a neighbour of the accused who has deposed that he saw that Dhanraj was lying on the entrance gate of the cattle shed of Tulshiram Ghodmare in injured condition. He did not support the prosecution on other material aspects and was declared hostile. 7. P.W.3 Dhanraj Nannaware is the injured. He has deposed that on the day of the incident at 1200 noon he went to the house of Tulshiram Ghodmare to borrow Rs.100/- since he needed the money for printing invitation cards for thirteenth day ritual of his deceased father. Tulshiram was not present and P.W.3 demanded the amount from his wife Indirabai. His version is that before going to the house of Tulshiram, he had already requested him to lend the amount and Tulshiram had agreed and had called him at his house after lunch. P.W.3 has deposed that when he was sitting on the cot at the house of Tulshiram and Indirabai had gone inside to bring the amount, the accused Waman came and alleging P.W.3 Dhanraj of practicing witchcraft, assaulted him on the head by stone and stick. Accused Waman inflicted stone blows on the head ten to twelve times, is the deposition. In the meanwhile, accused Arun also reached there and assaulted P.W.3 by stone on the head. Accused Arun inflicted five to six blows, is the deposition. P.W.3 then states that both the accused tied rope to his legs and body and put him in the cattle shed where he fell unconscious. In the meanwhile, accused Arun also reached there and assaulted P.W.3 by stone on the head. Accused Arun inflicted five to six blows, is the deposition. P.W.3 then states that both the accused tied rope to his legs and body and put him in the cattle shed where he fell unconscious. Somebody offered him water and he regained consciousness. Police arrived and admitted him to General Hospital, Chandrapur where he was an indoor patient for seven days. It is elicited in the cross-examination that the father of P.W.3 expired four months prior to the day of the incident. It is further elicited in the cross-examination that when P.W.3 Dhanraj was sitting on the cot, accused Waman suddenly came there and without saying anything launched assault with the stone. The suggestion that Dhanraj was under the influence of liquor and fell down in the courtyard of Tulshiram and sustained head injury is denied. 8. P.W.4 Kawadabai Jiotode is the informant, who is related to P.W.3 Dhanraj. Her version is that on the day of the incident at noon she had gone to the school for fetching water from tube well. She heard hue and cry from the house of Tulshiram Ghodmare whose house is at the distance of 300 feet from the well from which she was fetching the water. Her house is at a distance of 75 feet from the house of Tulshiram Ghodmare and the witness changes her version slightly and states that it was after she reached her house that she heard hue and cry from the house of Ghodmare. She has deposed that when she went to the house of Ghodmare, she witnessed both the accused assaulting Dhanraj on head by means of stick of axe and stone. She states that accused Waman was also assaulting the injured with the lid of cover of container. She states that after assaulting Dhanraj, both the accused tied rope to his hands, legs and body and put him in the cattle shed where the injured was lying unconscious. She states that thereafter she went to her house as her two years old child was crying. She states that her statement was recorded by the police at 500 p.m. She proves the report (Exhibit 35). It is extracted in the cross-examination that shouts from the house of Tulshiram cannot be heard at the bore-well. She states that thereafter she went to her house as her two years old child was crying. She states that her statement was recorded by the police at 500 p.m. She proves the report (Exhibit 35). It is extracted in the cross-examination that shouts from the house of Tulshiram cannot be heard at the bore-well. The use of stick of axe as a weapon is an omission. The use of tin cover by accused Waman as a weapon of assault is also an omission. 9. P.W.5 Yogesh Dhone has deposed that between 1200 to 100 p.m. when he was proceeding to his house after closing his pan shop, accused Waman was standing in the courtyard of the Police Patil and was claiming to have murdered Dhanraj. The evidence of the extra judicial confession is, however, an omission. 10. P.W.6 Asha Nannaware who was examined as an eyewitness did not support the prosecution and was cross-examined by the learned Additional Public Prosecutor. However, to the extent, she states that she saw injured Dhanraj lying in the courtyard of the house of the father of the accused and that the injured was shifted in police jeep supports and corroborates the evidence of P.W.3 Dhanraj and other prosecution witnesses. 11. P.W.7 Sunil Bhosale was then attached to Police Station Bhadrawati as Assistant Police Inspector. He reached the scene of the incident on receiving telephonic message from the Police Patil. P.W.3 Dhanraj was lying in the cattle shed of the accused, he was unconscious, is the deposition. P.W.7 states that Dhanraj was profusely bleeding and his hands and legs were tied by nylon rope. P.W.7 seized blood stained shirt of the injured, the nylon rope, one tin cover and two stones which were stained with blood from the spot and recorded the statement of P.W.4 Kawadabai (Exhibit 35). P.W.7 registered offence and arrested the accused on 0732004 and 0832004 vide arrest panchanama (Exhibit 27 and Exhibit 28). It is elicited in the cross-examination that the flooring of the cattle shed and courtyard of the house was of uneven stones and blood stains were found on three to four places on earth and stones. It is elicited that P.W.7 did not record the statements of Tulshiram Ghodmare and Indirabai Ghodmare. 12. P.W.8 Dr. It is elicited in the cross-examination that the flooring of the cattle shed and courtyard of the house was of uneven stones and blood stains were found on three to four places on earth and stones. It is elicited that P.W.7 did not record the statements of Tulshiram Ghodmare and Indirabai Ghodmare. 12. P.W.8 Dr. Mayura Avtale, then working as Medical Officer at the Rural Hospital, Bhadrawati proved medical certificates (Exhibit 58 and Exhibit 59) which are in the handwriting of her colleague Dr. Rahul Tapase. These certificates were issued after examining the accused Waman and Arun. 13. P.W.9 Dr. Pundlik Swami, then working as Medical Officer in General Hospital, Chandrapur examined the injured Dhanraj and noticed the following injuries on his person : (1) Incised wound on occipital parietal region i.e. fracture occipital parietal region, of size 7 cm. X 1 cm. by bone exposure. (2) Lacerated wound on occipital region, 3 cm. X 1 cm. by bone exposure. (3) Incised wound on forehead with fracture frontal bone of size 2 cm. X 1 cm. by bone deep. (4) Multiple bruises and abrasion all over back and shoulder, (5) Fracture on upper 1/3rd of right radio ulna and other multiple lacerated wound on scalp. P.W.9 states that he advised that the factum of fracture should be confirmed by x-ray and C.T. head. In response to a Court question, P.W.9 states that injuries are sufficient to cause death in the ordinary course of nature. It is elicited in the cross-examination that he had no occasion to peruse the x-ray of the patient post medical examination and that his opinion is based only on observation. The witness P.W.9 accepts that he is not aware for how many days the injured was treated as indoor patient. 14. The most material witness is obviously the injured P.W.3 Dhanraj. A part of his testimony is shown to be false. His version that he went to Tulshiram to borrow Rs.100/- for printing invitation cards in relation to the thirteenth day ritual of his deceased father is falsified by his admission that his father died four months prior to the day of the incident. However, his entire testimony cannot be discarded. It is a known phenomenon that witnesses are prone to indulge in falsehood and at any rate in exaggeration and embellishment. Over implication is also routinely noticed. However, his entire testimony cannot be discarded. It is a known phenomenon that witnesses are prone to indulge in falsehood and at any rate in exaggeration and embellishment. Over implication is also routinely noticed. It is the duty of the Court to separate the grain from the chaff. P.W.3 is an injured witness and his testimony must receive due weight-age. There is no reason for P.W.3 Dhanraj to falsely implicate the accused and to exculpate the guilty. Even hostile witnesses have supported his version to the extent that they have deposed to have seen P.W.3 Dhanraj in an injured condition, tied with rope, lying in the courtyard of Tulshiram Ghodmarethe father of the accused. The defence that P.W.3 fell on stones in the cattle shed of Tulshiram Ghodmare and suffered injuries is belied not only by the medical evidence but by impeachable evidence showing that he was lying in an injured condition with hands and legs tied by rope, in the cattle shed of the father of the accused. The defence of accidental fall on the stones in the cattle shed or the courtyard must be noted only for rejection. 15. It is true that P.W.3 has exaggerated and over implicated. His version that accused Waman inflicted ten to twelve blows with stones on head and accused Arun inflicted five to six blows with stones on the head, is belied by the medical evidence. However, notwithstanding the exaggeration and embellishment, the evidence of the injured Dhanraj that he was assaulted by the accused with stones, is reliable and deserves acceptance. P.W.4 Kawadabai who claims to be an eyewitness has deposed that both the accused were assaulting Dhanraj with stick of axe and stones. This version is inconsistent with the testimony of the injured Dhanraj. The use of axe stick is not spoken of by injured Dhanraj. It is doubtful whether P.W.4 Kawadabai is an eyewitness to the assault. She claims to be a relative of the injured. However, rather than helping the injured or taking any proactive step to inform the Police Patil or police she claims to have gone back to her house as her two years child was crying. The other eyewitness P.W.6 Asha did not support the prosecution. P.W.5 Yogesh Dhone is not a witness to the assault. However, rather than helping the injured or taking any proactive step to inform the Police Patil or police she claims to have gone back to her house as her two years child was crying. The other eyewitness P.W.6 Asha did not support the prosecution. P.W.5 Yogesh Dhone is not a witness to the assault. However, the common thread which emerges from the evidence of the prosecution witnesses, including witnesses who were declared hostile and witnesses who concededly did not witness the actual assault, is that the injured was lying in the courtyard of the father of the accused with hands and legs tied. The evidence of the injured P.W.3, which is even otherwise required to be placed on a higher pedestal than that of other witnesses, is more than amply corroborated. 16. The conscience of this Court is satisfied that the prosecution has proved beyond reasonable doubt that the accused Waman and Arun assaulted P.W.3 Dhanraj on the day of the incident. Miss Ankita Sarkar, however, urges that the evidence is not sufficient to attribute to the accused the intention or knowledge as would attract Section 307 of the IPC. Miss Ankita Sarkar would submit that it is not even the version of the prosecution that the assault was premeditated. The weapon used were stones which obviously were lying at the scene of occurrence. The prosecution has not produced the radiological evidence to throw light on the nature of the injuries and therefore, the opinion of the medical officer that the accused suffered fracture, which opinion even otherwise was subject to confirmation by radiological test, is of no probative value, is the submission. The fact that injured P.W.3 was an indoor patient only for a week would belie the prosecution version that the injured suffered fracture or any grievous injury much-less an injury endangering life. Miss Ankita Sarkar would submit the fact that nothing prevented the accused from taking the assault to the logical end, if the intention was really to cause death, is a circumstance against the prosecution. Per contra, learned Additional Public Prosecutor Smt. S.V. Kolhe submits that the injured suffered four injuries on the head out of which two are incised wounds and the others are caused by hard, blunt and heavy object. Per contra, learned Additional Public Prosecutor Smt. S.V. Kolhe submits that the injured suffered four injuries on the head out of which two are incised wounds and the others are caused by hard, blunt and heavy object. The vital organ which was targeted by the accused would necessarily indicate that the accused intended to cause death and at any rate did know that the blows are likely to cause an injury which may lead to death. The medical evidence is sufficient to prove the requisite intention or knowledge as would attract Section 307 of the IPC, is the submission. 17. It is trite law that the nature and extent of injuries is not decisive when the Court is required to determine whether the accused had the intention to cause death or such bodily injury as is likely to cause death or the requisite knowledge can be attributed to the accused. Section 307 of the IPC is not concerned with the consequences of the act per se. Even in the absence of an injury, Section 307 may be attracted if the requisite intention or knowledge is proved. The nature and extent of injuries do, however, provide some assistance to the Courts in determining whether the requisite intention or knowledge as would attract under Section 307 of the IPC is proved. The Court is obligated to consider the cumulative effect of various circumstances inter alia whether the assault was premeditated, what was the prelude to the incident, the nature or weapon used and force with which the blows were struck, the body part targeted and the nature and extent of injuries, whether the accused were prevented from any external factor from taking the assault to the logical end. The list is obviously not exhaustive. These are some of the indicators which assist the Court in determining the intention or knowledge. 18. In the facts obtaining, notwithstanding the exaggerated version of the injured, if medical evidence is to be believed, four injuries were sustained by the injured Dhanraj on the head, which indubitably is a vital organ. However, the prosecution failed to prove that any life endangering injury was caused. 18. In the facts obtaining, notwithstanding the exaggerated version of the injured, if medical evidence is to be believed, four injuries were sustained by the injured Dhanraj on the head, which indubitably is a vital organ. However, the prosecution failed to prove that any life endangering injury was caused. The prima facie opinion of the doctor, which was subject to confirmation by radiological examination of the injured, that the injured suffered fracture, does not take the case of the prosecution any further since no radiological evidence is produced to prove the factum of fracture. Concededly, the injured was discharged within seven days. It is difficult to record a finding with any degree of certainty that two accused inflicted the stone blows with the intention of causing death. It is equally difficult to record a finding that the requisite knowledge can be attributed to the accused. It would be relevant to note the following observations of the Hon'ble Apex Court in Sarju Prasad v. State of Bihar reported in AIR 1965 SC 843 : “3. It is common ground that the act for which the appellant has been convicted under Section 307 consisted of causing an injury in the vital region of Shankar Prasad's person but that no vital organ of Shankar Prasad was actually cut as a result of this injury. It is common ground that the act for which the appellant has been convicted under Section 307 consisted of causing an injury in the vital region of Shankar Prasad's person but that no vital organ of Shankar Prasad was actually cut as a result of this injury. Learned counsel for the appellant, therefore, contends that the injury was a simple one and that as it was not such as was in the ordinary course of nature likely to result in death the offence falls not under Section 307 but under Section 324, I.P.C. According to learned counsel, before a person can be found guilty of the offence of an attempt to commit murder the prosecution must establish that the actual act which the assailant is shown to have committed was such as would in the ordinary course of nature have resulted in death and that here as the injury was a simple one, no vital organ of Shankar Prasad having been damaged, it does not fall within the purview of Section 307, I. P. C. It was no doubt held in Reg v. F. Cassidy, 4 Bom HC (Cr.) 17 which was followed in Martu v. Emperor, 15 Bom LR 991 that for a person, to be convicted under Section 307, I. P. C. the act done must be an act done under such circumstances that death might be caused if the act took effect, that is to say, the act must be capable of causing death in the natural and ordinary course of things. But these decisions were not followed by the same High Court in Wasudeo Balwant Gogte v. Emperor, ILR 56 Bom 434 : (AIR 1932 Bom 279). There is a large body of decisions of other High Courts to the same effect as the decision in Gogte's case, ILR 56 Bom 434 : (AIR 1932 Bom 279). There, Beaumont C. J. referring to Cassidy's case, 4 Bom HC (Cr.) 17 has observed: "If the reasoning of the learned Judges in that case be right as to the construction of Section 307 and if the act committed by the accused must be an act capable of causing death in the ordinary course, it seems to me that logically the section could never have any effect at all. If an act is done which in fact does not cause death, it is impossible to say that that precise act might have caused death. There must be some change in the act to produce a different result, and the extent to which the act done must be supposed to be varied to produce the hypothetical death referred to in Section 307 is merely a question of degree. If a man points at his enemy a gun which he believes to be loaded but which in fact is not loaded intending to commit murder (which is Cassidy's case), it is no doubt certain that no death will result from the act. But equally certain is it that no death will result if the accused fires a revolver at his enemy in such circumstances that in fact, whether through defect of aim, or the activity of the target, the bullet and the intended victim will not meet. If, however, Section 307 does not cover the case of a man who fires a gun at his enemy with intent to kill him but misses his aim, it is difficult to see how the section can ever have any operation." 4. After pointing out that this decision was not followed by the Allahabad High Court in Queen Empress v. Niddha, ILR 14 All 38 the learned Chief Justice continued: "The words 'under such circumstances' refer to acts which would introduce a defence to a charge of murder, such as, for instance, that the accused was acting in self-defence or in the course of military duty. But if you have an act done with a sufficiently guilty intention and knowledge and in circumstances which do not from their nature afford a defence to a charge of murder, and if the act is of such a nature as would have caused death in the usual course of events but for something beyond the accused's control which prevented that result, then it seems to me that the case falls within Section 307." 5. Thus according to the learned Chief Justice the act to fall within Section 307 must be such that but for the intervention of some circumstance it would, if completed, have resulted in, death. There is no evidence in this case that a fatal injury or an injury to a vital organ was prevented by any intervening circumstance. 6. Thus according to the learned Chief Justice the act to fall within Section 307 must be such that but for the intervention of some circumstance it would, if completed, have resulted in, death. There is no evidence in this case that a fatal injury or an injury to a vital organ was prevented by any intervening circumstance. 6. All these decisions were considered by this Court in Om Prakash v. State of Punjab, 19622 SCR 254 : ( AIR 1961 SC 1782 ) and though Cassidy's case, 4 Bom HC (Cr.) 17 was not expressly dissented from the actual view taken by this Court is more in consonance with the view taken by Beaumont C.J. in Gogte's case, ILR 56 Bom 434 : (AIR 1932 Bom 279) and the view taken by the Allahabad High Court in Niddha's Case, ILR 14 All 38 than that taken in Cassidy's case, 4 Bom HC (Cr.) 17. In Gogte's case, ILR 56 Bom 434: (AIR 1932 Bom 219) no injury was in fact occasioned to the victim Sir Earnest Hotson, the then acting Governor, due to a certain obstruction. Even so, the assailant Gogte was held by the court to be jointly (sic) under Section 307 because his act of firing a shot was committed with a guilty intention and knowledge and in such circumstances that but for the intervening fact it would have amounted to murder in the normal course of events. This view was approved by this Court. Therefore, the mere fact that the injury actually inflicted by the appellant did not cut any vital organ of Shankar Prasad is not by itself sufficient to take the act out of the purview of Section 307. 7. Having said all this we must point out that the burden is still upon the prosecution to establish that the intention of the appellant in causing the particular injury to Shankar Prasad was of any of the three kinds referred to in Section 300, Indian Penal Code. For, unless the prosecution discharges the burden the offence under Section 307, I.P.C. cannot possibly be brought home to the appellant. The state of the appellant's mind has to be deduced from the surrounding circumstances and as Mr. Kohli rightly says the existence of a motive to cause the death of Shankar Prasad would have been a relevant circumstance. For, unless the prosecution discharges the burden the offence under Section 307, I.P.C. cannot possibly be brought home to the appellant. The state of the appellant's mind has to be deduced from the surrounding circumstances and as Mr. Kohli rightly says the existence of a motive to cause the death of Shankar Prasad would have been a relevant circumstance. Here, the prosecution has led no evidence from which it could be inferred that the appellant had a motive to kill the victim of his attack. On the other hand he points out that as the appellant had no enmity with Shankar Prasad that neither of them even knew each other and that as the appellant inflicted the injury on Shankar Prasad only to make him release the wrist of Sushil while Sushil was in the act of stabbing Madan Mohan he cannot be said to have had the motive to kill Shankar Prasad and, therefore, no intention to cause murder or to cause any injury which may result in death could be inferred. Now, it is the prosecution case that about a week before the incident Sushil, for certain reasons, had given a threat to Madan Mohan to the effect that he would be taught a lesson and according to the prosecution Sushil and the appellant Sarju were lying in wait for Madan, Mohan in the chowk on the day in question with chhuras with the intention of murdering him. The prosecution wants us to infer that these two persons also had the intention of murdering any one who went to the rescue of Madan Mohan. It seems to us that from the facts established it cannot be said that the appellant had the intention of causing the death of Shankar Prasad or of any one who went to Madan Mohan's rescue. If such were his intention then another significant fact would have possibly, though not necessarily, deterred him and that is that Madan Mohan and Shankar Prasad were not the only persons there at that time but were accompanied by some other persons. Moreover the incident occurred in broad day light in a chowk which must be a well-frequented area. It is not easy to assume that in such circumstances the appellant could have intended to commit a crime for which the law has provided capital punishment. 8. Moreover the incident occurred in broad day light in a chowk which must be a well-frequented area. It is not easy to assume that in such circumstances the appellant could have intended to commit a crime for which the law has provided capital punishment. 8. The only other question then is whether the appellant intended to cause such injury as he knew to be likely to cause death or intended to inflict an injury which was sufficient in the ordinary course of nature to cause death or that he knew that his act was so imminently dangerous that it must in all probability cause death or cause an injury as is likely to cause death. 9. It is true that the witnesses say that the appellant used a chhura. It is also true, that the injury was inflicted on a vital part of the body but the fact remains that no vital organ of the body was injured thereby. Again, we do not know how big the chhura was and, therefore, it cannot be said that it was sufficiently long to penetrate the abdomen deep enough to cause an injury to a vital organ which would in the ordinary course of nature be fatal. The chhura could not be recovered but the prosecution should at least have elicited from the witnesses particulars about its size. We are, therefore, unable to say with anything near certainty that the appellant had such intention or knowledge. Incidentally we may point out that Shankar Prasad does not say that after he released the wrist of Sushil the appellant inflicted or even tried to inflict any further injury on him. 10. In this state of the evidence we must hold that the prosecution has not established that the offence committed by the appellant falls squarely under Section 307, I.P.C. In our opinion, it amounts only to an offence under Section 324, I.P.C.” 19. In the light of the discussion supra, the conviction of the accused for offence punishable under Section 307 of the IPC is unsustainable and is set aside. Instead the accused are convicted for offence punishable under Section 324 of the IPC. 20. In so far as the sentence is concerned, the accused have undergone detention of four months or thereabout including the detention suffered as under trial prisoner. The incident occurred fourteen years ago. Instead the accused are convicted for offence punishable under Section 324 of the IPC. 20. In so far as the sentence is concerned, the accused have undergone detention of four months or thereabout including the detention suffered as under trial prisoner. The incident occurred fourteen years ago. I am not inclined to send the accused to jail at this stage and the sentence is altered to detention already undergone. 21. However, in my opinion, the injured Dhanraj must be compensated for the physical and mental trauma. The accused are directed to pay compensation under Section 357(3) of the Criminal Procedure Code of Rs.25,000/- each to the injured Dhanraj Nannaware and if he is not alive, to his legal heirs, within fifteen days from the date of this judgment, failing which the accused shall suffer rigorous imprisonment for two years. 22. The appeal is partly allowed.