JUDGMENT : Sadhana S. Jadhav, J. 1. The appellant herein is convicted by the learned Additional Sessions Judge, Greater Mumbai vide judgment and order dated 10th December 2015 for the offences punishable under Sections 307, 324 and 506 of Indian Penal Code and sentenced to suffer rigorous imprisonment for ten years, one year and six months respectively and fine of Rs. 10,000/- and Rs. 2,000/- in default, he shall suffer simple imprisonment for a period of three months and one month for the offences punishable under Sections 307 and 324 of Indian Penal Code respectively. All the sentences shall run concurrently. Hence, this appeal. 2. It is the case of the prosecution that on 1st April 2013, Akhtari Begam Babu Khan lodged a report at the police station alleging therein that on 1st April 2013, she was in the open space near MHADA building as they were to construct a library on that spot. She was doing supervision work. She had seen Imtiaz Jamil Ahmed Khan near fruit juice shop. He was accompanied by two unknown persons. At about 10.30, she saw Ammu, the present appellant and two others abusing Imtiaz. At that time, she saw that the accused-appellant had picked up a knife from butcher's shop closed by and had mounted assault upon Imtiaz. Since she was acquainted with Imtiaz, she intervened. She was threatened. In her attempt to save Imtiaz, she had also sustained injury on her palm. She had sustained bleeding injury and hence she fled from the spot. She had seen her friend Akhtari Begam Khatib passing-bye. She stopped her and asked for help. Thereafter they both took Imtiaz to the hospital. Sutured were given to her injuries also. She then approached Antop Hill Police Station and lodged a report. 3. On the basis of her report, Crime number 58 of 2013 was registered at Antop Hill Police Station against the appellant and two others for the offences punishable under Sections 307, 324, 506 (II) read with 34 of Indian Penal Code. The appellant herein was arrested on 3rd April 2013 and was tried as under trial prisoner in Sessions Case No. 574 of 2013. 4. The prosecution has examined eight witnesses to bring home the guilt of the accused. 5. PW-1, Akhtari Begam Babu Khan happens to be the star witness as she is an eye witness to the incident. The appellant herein was arrested on 3rd April 2013 and was tried as under trial prisoner in Sessions Case No. 574 of 2013. 4. The prosecution has examined eight witnesses to bring home the guilt of the accused. 5. PW-1, Akhtari Begam Babu Khan happens to be the star witness as she is an eye witness to the incident. She has deposed before the Court in consonance with the F.I.R., which is then marked as Exhibit 16. She is the social worker. She has evaded to answer as to whether victim Imtiaz had drug addict/drug peddler and had also been assaulted by other persons prior to 1st April 2013. She has admitted that it has densely populated area. There are many hawkers in the vicinity. The statements of the stander-by were not recorded. She has denied to have stated portion marked "A", which reads as follows: "It did not happen that after I sustained injuries I ran away". 6. PW-2, Mohd. Ismail Fakruddin Naikwadi, who has acted as a panch for recovery of knife at the instance of the accused-appellant. According to him, the knife was recovered from his house at his instance. According to him, it was a blood stained knife. According to him, the panchanama was prepared at the police station and he has signed the same at the police station. He has further clarified that the first part of the panchanama was prepared at the police station and the second part was prepared at the spot. He has candidly stated that the police had not recorded the statement of father of the accused, who had opened the door of his house. 7. PW-3, Mohd. Isaq Habbu Pathan @ Khan is also a panch witness and has deposed that the panchanama was prepared at the police station. 8. PW-4, Mukesh Kumar Zha was working as A.M.O. at Sion Hospital. He had examined PW-1 on 1st April 2013. According to him, she had not sustained injuries on vital parts of the body. 9. PW-5 Sachin Surendralal Oberoi has acted as a panch. The cloth seizure panchanama is at Exhibit 30. 10. PW-6 Gahininath Sarjera Game is the API attached to Navghar police station. He had made entry of the information in the station diary and had rushed to the Sion Hospital. He had enquired with PW-1. 9. PW-5 Sachin Surendralal Oberoi has acted as a panch. The cloth seizure panchanama is at Exhibit 30. 10. PW-6 Gahininath Sarjera Game is the API attached to Navghar police station. He had made entry of the information in the station diary and had rushed to the Sion Hospital. He had enquired with PW-1. According to him, the injuries were bandaged and therefore he could not enquire with the Medical Officer as the patient was not in a position to talk. According to him, he has followed the rule of investigation. He had admitted in the cross-examination that it is not mentioned in the arrest panchanama Exhibit 32 the place from where first the accused was taken into custody. The memorandum/panchanama falsifies many things. 11. The prosecution has examined PW-7, Dr. V. Manjunath to prove to prove the signature and contents of the certificate issued by Dr. Senthil. He has deposed before the Court that he had examined Imtiaz on 1st April 2013 and found following injuries on his person: 1. Incised LW admeasuring 7 x 3 x 2 cm. on right side of the chest muscle deep with exposure of intercostal spaces and no pleural breach. 2. Punctured wound on left Iliac fossa of abdomen size 3 x 2 x 1 cm. with omentum pouting with peritoneal breach. 3. Punctured wound on left side of chest dimension 1.5 x 1.5 and 3.5 deep on the left side of chest with plural breach and third rib fracture." The doctor has deposed that all the injuries were fresh with active bleeding caused by sharp weapon and nature of injuries was grievous. The injury certificate issued by Dr. Senthil is marked as Exhibit 36. 12. It is pertinent to note that the injury certificate was signed by Sanket Ekhande, who is not examined by the prosecution and PW-7 has identified his signature on the injury certificate. 13. PW-7 has stated that he was in a position to identify the signature of Sanket Ekhande and that after some days of discharge, accused Imtiaz had visited the hospital for stomach operation. Doctor has specifically stated that the injured was discharged on 8th April 2013. It is specifically admitted that due to injuries mentioned in the certificate, patient cannot become permanently disabled. 14. P.W.-8 Prakash Anandrao Kamble is the Investigating Officer. After completion of investigation, he has filed charge-sheet. Doctor has specifically stated that the injured was discharged on 8th April 2013. It is specifically admitted that due to injuries mentioned in the certificate, patient cannot become permanently disabled. 14. P.W.-8 Prakash Anandrao Kamble is the Investigating Officer. After completion of investigation, he has filed charge-sheet. He has proved the omissions and contradictions in the evidence of the witnesses. 15. Learned counsel for the appellant has submitted that the injured, Imtiaz has not been examined by the prosecution. He would be the only witness to throw light upon the prelude to the incident and the identity of the accused. It is submitted that the possibility that the incident had occurred on grave and sudden provocation by the injured Imtiaz or that it had occurred in the course of scuffle cannot be ruled out. It is true that PW-1, Akhtari Begam has evaded to answer as to whether the victim Imtiaz was a drug peddler and also been assaulted by others. Moreover, Akhtari Begam seems to be an interested witness. The other two unknown persons, who had purportedly accompanied the accused at the time of the incident were never traced. In the eventuality that Akhtari Begam is to be believed, then it would indicate that the accused was not armed with weapon but he had picked up a knife from nearby meat shop. There is no trace of another Akhtari Begam Khatib who had rescued PW-1. According to her, the incident had occurred in a crowded locality, there were shop owners and hawkers at the scene of offence. The investigating officer has not recorded statement of any witness. She had sustained injuries on her right palm and wrist. PW-1 was well acquainted with Akhtari Begam Khatib as she was residing just 3 to 4 buildings away and yet her statement was not recorded. Moreover, there is nothing to indicate that the injured Imtiaz had conversed with PW-1 at the time of incident. It is, in these premises that reliance can be placed on the evidence of PW-1 to the extent that she was injured at the hands of the present appellant. The presence of the witness at the time of trial was necessary for identification of the accused. The accused was arrested on 3rd April 2013 and was in custody since then. He has undergone more than 5 years sentence excluding remissions till today. The presence of the witness at the time of trial was necessary for identification of the accused. The accused was arrested on 3rd April 2013 and was in custody since then. He has undergone more than 5 years sentence excluding remissions till today. Therefore the appellant deserves to be convicted for the offence punishable under Section 325 of Indian Penal Code and sentenced to suffer the period already undergone. Hence, the following order: ORDER (i) The appeal is partly allowed. (ii) The conviction of the appellant-Amir Ismail Patel @ Ammu for the offence punishable under Section 307 of the Indian Penal Code is quashed and set aside. (iii) The appellant is hereby convicted for an offence punishable under Section 325 of the Indian Penal Code and sentenced to suffer the period already undergone. (iv) The sentence of fine is modified. The appellant is sentenced to pay a fine of Rs. 5,000/-, in default to suffer rigorous imprisonment for one month. (v) The conviction of the appellant for the offence punishable under Section 324 of the Indian Penal Code is maintained. (vi) The appellant be released forthwith, if not required in any other offence. (vii) Parties to act on authenticated copy of this order.