JUDGMENT B. Veerappa, J. - This appeal is preferred by the appellants challenging the judgment of conviction and order of sentence dated 28.01.2015 passed by Fast Track Court, Tumkur, made in S.C.No.278/2012, wherein the appellants/accused nos.1 to 3 and 5 have been found guilty and convicted for the offences punishable under Sections 143, 147, 323, 324, 504, 506 and 307 r/w 149 of the Indian Penal Code, 1860 ('IPC' for short). The order of sentence reads as under: "The accused No.1 to 3 and 5 are sentenced to life imprisonment for an offence punishable under Section 307 read with Section 149 I.P.C. The accused No.1 to 3 are sentenced to undergo simple imprisonment for three months for an offence punishable under Sec.143 read with Sec.149 I.P.C. and accused No.5 is sentenced to pay fine of Rs.1,000/- for an offence punishable under Sec.143 read with Sec.149 I.P.C. and in default to undergo simple imprisonment for 45 days. The accused No.1 to 3 are sentenced to undergo simple imprisonment for six months for an offence punishable under Sec.147 read with Sec.149 I.P.C. and accused No.5 is sentenced to undergo simple imprisonment for three months for an offence punishable under Sec.147 read with Sec.149 I.P.C. The accused No.1 to 3 are sentenced to undergo simple imprisonment for six months for an offence punishable under Sec.323 read with Sec.149 I.P.C. and accused No.5 is sentenced to undergo simple imprisonment for three months for an offence punishable under Sec.323 read with Sec.149 I.P.C. The accused No.1 to 3 are sentenced to undergo simple imprisonment for two years for an offence punishable under Sec.324 read with Sec.149 I.P.C. and accused No.5 is sentenced to undergo simple imprisonment for one year for an offence punishable under Sec.324 read with Sec.149 I.P.C. The accused No.1 to 3 and 5 are sentenced to pay a fine of Rs.2,000/- each for an offence punishable under Sec.504 read with Sec.149 I.P.C. and in default to undergo simple imprisonment for 6 months. The accused No.1 to 3 are sentenced to undergo simple imprisonment for one year for an offence punishable under Sec.506 read with Sec.149 I.P.C. and accused No.5 is sentenced to pay fine of Rs.2,000/- for an offence punishable under Sec.506 read with Sec.149 I.P.C. and in default to undergo simple imprisonment for six months. All the sentences shall run concurrently." 2. All the sentences shall run concurrently." 2. The brief facts of the case are as under: It is the case of the prosecution that on 13.09.2011 at 7 a.m., CW.1 and CW.2 had supplied milk to the dairy and they were returning to Honnenahalli, the accused persons formed an unlawful assembly, went to the house of P.W.1 (C.W.1), which was given to him by his parents and the accused persons were laying tiles on the front side of the house, when P.W.1 (C.W.1) questioned accused no.1 as to why they were laying tiles to the house belonging to P.W.1 (C.W.1) and informed them not to put tiles and that they would get the house vacated, the accused persons told him that the house belongs to them and they will lay the tiles and if P.W.1 (C.W.1) and others questioned them, the accused persons would do away with the life of P.W.1 and others. Thus, they posed a threat to their lives and also abused P.W.1 and P.W.2 with filthy language. 3. It is further case of the prosecution that accused no.1 has also assaulted P.W.1 on the backside of left leg, on the right side of the waist and on the right side of the neck with a club in his hand, causing blood injuries and accused No.2 with an intention to kill P.W.1 (C.W.1), stabbed him on the right side of the stomach with the club, causing grievous injury and also assaulted him with the club on the right side of the neck, left side of the waist and left side of the stomach, accused No.3 strangled C.W.1, accused No.4 punched C.W.1 on the back with the hands and accused No.5 assaulted C.W.1 with hands and when C.W.2 came to the rescue of C.W.1, accused No.5 bit P.W.2 (C.W.2) near the left shoulder and also scratched the left side of the neck with hands and thereby, the accused caused grievous and simple injuries to C.W.1 and simple injuries to C.W.2. Thereafter, P.W.1 - Gangadharaiah lodged a complaint as per Ex.P1 on 14.09.2011 at 2.30 p.m. The jurisdictional police registered the case in Crime No.141/2011 against the accused persons for the offences punishable under Sections 143, 147, 323, 324, 504, 506 and 307 read with 149 of IPC. Subsequently, the same was registered as C.C.No.549/2012. The Investigating Officer - P.W.11 after investigation filed final report on 01.12.2011. 4. Subsequently, the same was registered as C.C.No.549/2012. The Investigating Officer - P.W.11 after investigation filed final report on 01.12.2011. 4. In order to prove the case of the prosecution, the prosecution in all examined 13 witnesses as PWs.1 to 13 and got marked the documents as Exs.P1 to 11 and material objects as M.Os.1 and 2. Thereafter, the statements of the accused persons were recorded under Section 313 of Cr.P.C. All the accused persons have denied the incriminating evidence appearing against them. However, they have not chosen to adduce any evidence. They have got marked the document as Ex.D1. Further, two court documents i.e. Exs.C1 and C1(a) were got marked. 5. Thereafter, the statements of the accused persons were recorded under Section 313 of Cr.P.C. All the accused persons have denied the incriminating evidence appearing against them. However, they have not chosen to adduce any evidence. They have got marked the document as Ex.D1. Further, two court documents i.e. Exs.C1 and C1(a) were got marked. 5. The learned Presiding Officer, after considering both oral and documentary evidence on record, held that the prosecution has proved beyond reasonable doubt that on 13.09.2011 at 7.00 a.m. at the house of C.W.1 (P.W.1) in Honnenahalli, accused nos.1 to 3 and 5 with a common intention formed an unlawful assembly and assaulted CWs.1 and 2 and thereby they have committed the offences punishable under Sections 143, 147 r/w 149 of IPC; that the accused persons 1 to 3 and 5 had gone to the house of C.W.1 and were laying tiles and when the same was questioned by C.W.1, they abused C.W.1 and 2 and accused No.1 assaulted C.W.1 on the backside of left leg, on the right side of the waist and on the right side of the neck with a club in his hand, causing blood injuries, accused No.3 strangled C.W.1, accused No.4 punched C.W.1 on the back with the hands and accused No.5 assaulted C.W.1 with hands and when C.W.2 came to the rescue of C.W.1, accused No.5 bit C.W.2 near the left shoulder and also scratched the left side of the neck with hands, and thereby the accused caused simple and grievous injuries to C.W.1 and C.W.2 and thereby they have committed the offences punishable under Sections 323 and 324 read with 149 of IPC; that accused Nos.1 to 3 and 5 were laying tiles to the house of C.W.1 and when questioned by C.W.1, they abused him with filthy language and thereby they have committed an offence punishable under Section 504 read with 149 of I.P.C.; that when accused Nos.1 to 3 and 5 were laying tiles to the house of C.W.1 and when questioned by C.W.1, they abused him with filthy language and posed a threat to the lives of C.Ws.1 and 2 and thereby they have committed an offence punishable under Section 506 read with 149 I.P.C.; and that when accused Nos.1 to 3 and 5 were laying tiles to the front side of the house of C.W.1 given to him by his parents and when questioned by C.W.1, they assaulted him as well as C.W.2, who had come to the rescue of C.W.1 and further accused No.2, with an intention to murder C.W.1, had stabbed C.W.1 into the stomach on the right side with a club, causing grievous injury and thereby they have committed an offence punishable under Section 307 read with 149 of I.P.C. 6. The Fast Track Court, after considering the entire material on record, by the judgment dated 28.01.2015, convicted accused nos.1 to 3 and 5 for the offences punishable under Sections 143, 147, 323, 324, 504, 506 and 307 r/w 149 of IPC. Hence, the present appeal is filed by the accused nos.1 to 3 and 5. 7. We have heard the learned counsel for the parties to the lis. 8. Sri Karthik Yadav U., learned counsel appearing for the appellants, on instructions, submits that appellant no.1- Karegowda (accused no.1) died on 13.03.2016 and his LRs. have agreed to deposit the fine amount of Rs.2,000/- imposed by the trial court against accused no.1. Accordingly, he has filed a memo before this Court. The same is placed on record. Since accused no.1 has died, no punishment can be imposed except accepting the fine. The appeal filed against appellant no.1/accused no.1 is dismissed as abated. Thus, the appeal is confined to accused nos.2, 3 and 5. 9. Sri Karthik Yadav U., learned counsel appearing for the appellants contended that the impugned judgment of conviction and order of sentence against accused nos.2, 3 and 5 is contrary to the material on record and is liable to be set aside. He contended that the alleged incident occurred on 13.09.2011 at 7 a.m. and admittedly, the complaint was lodged by P.W.1 as per Ex.P1 on 14.09.2011 at 2.30 p.m. and there was a delay of 36 hours in lodging the FIR. Absolutely, there is no explanation offered by the prosecution for the delay in lodging the FIR and that the trial court has not considered the said material aspect while convicting the accused persons. He further contended that there are no eye witnesses to the alleged incident, except the interested witnesses i.e. P.W.1 and P.W.2, who are the husband and wife and P.W.3 to P.W.5, who pacified the incident between the accused persons and PW.1 and P.W.2, have turned hostile. He further contended that the prosecution has not proved beyond reasonable doubt the motive and the ingredients of Section 307 of IPC. Therefore, the very registration of the criminal case against the accused persons under Section 307 of IPC is not applicable in the present case. On that ground also, the impugned judgment of conviction and order of sentence cannot be sustained. 10. Therefore, the very registration of the criminal case against the accused persons under Section 307 of IPC is not applicable in the present case. On that ground also, the impugned judgment of conviction and order of sentence cannot be sustained. 10. The learned counsel for the appellants has further contended that according to P.W.1 and P.W.2, one Rangaswamaiah elder brother of P.W.1 had accompanied P.W.1 to the hospital and he being the material witness is not examined whereby they have suppressed the genesis of the case of the prosecution. The trial court has convicted the accused persons solely on the basis of the evidence of P.Ws.1 and 2 ignoring both the oral and documentary evidence on record. He further contended that absolutely there is no material produced before the Court against accused no.5 except that she bit P.W.2. Nevertheless, the trial court has proceeded to convict accused no.5 along with the other accused. On that ground also, the impugned judgment of conviction and order of sentence is liable to be set aside. He further contended that PW.2 Mahalakshmi took P.W.1 to Hebbur Primary Health Centre and P.W.10 Dr. B.S.Manjunath gave treatment to P.W.1 and P.W.2 and the wound certificates as per Exs.P7 and P8 would clearly indicate that the injuries are only simple injuries and there is a contradiction between the evidence of P.W.1 and P.W.2. He further contended that P.W.8 - Gangaiah, Police Constable, recorded the statement of P.W.1 as per Ex.P2 at Panacea Hospital on 08.10.2011. Admittedly, P.W.1 was admitted in the hospital from 14.09.2011 to 28.09.2011. Therefore, the statement of P.W.8 - Police Constable cannot be accepted and he has not supported the case of the prosecution. 11. The learned counsel for the appellants has further contended that P.W.9 Prakash, ASI, who recorded the statement of P.W.1 on 14.09.2011 at the hospital as per Ex.P1 and a criminal case has been registered as per Ex.P9 - FIR. Admittedly, the Medical Officer, who had treated PW.1 and PW.2, has not sent medico-legal case to the concerned jurisdictional police. He would further contend that PW.10 Dr.B.S.Manjunath, who had treated P.W.1 and PW.2 and issued the wound certificates as per Exs.P7 and P8, has stated in the cross examination that there was no need to send medico-legal case to the concerned police, though it is mandatory. He would further contend that PW.10 Dr.B.S.Manjunath, who had treated P.W.1 and PW.2 and issued the wound certificates as per Exs.P7 and P8, has stated in the cross examination that there was no need to send medico-legal case to the concerned police, though it is mandatory. He would further contend that P.W.11 - Investigation officer, who registered FIR as per Ex.P9, has submitted final report on 01.12.2011 against the accused persons. Admittedly, in the cross-examination, he has deposed that no intimation is received on 13.09.2011 from the Primary Health Centre, Hebbur about the hospitalization of PW.1 and his treatment and he has not recorded the same in the case dairy (CD) and his evidence cannot be taken into consideration to convict accused nos.2, 3 and 5. Therefore, he sought to allow the appeal by setting aside the impugned judgment of conviction and the order of sentence passed by the Fast Track Court. 12. In support of his contentions, the learned counsel for the appellants has relied upon the dictum of: (i) The Hon'ble Supreme Court in the case of Thulia Kali v. State of Tamil Nadu, (1972) 3 SCC 393 particularly paragraph 12 with regard to delay in lodging F.I.R; and (ii) The Madhya Pradesh High Court in the case of Sakariya v. State of M.P, (1991) CriLJ 1925 particularly paragraphs 14 and 25 to the effect that "Subsequent suggestion by defence lawyer to prosecutrix about consent on her part Does not amount to admission that accused was guilty". 13. Per contra, Sri S.Rachaiah, learned HCGP for the respondent-State, while justifying the impugned judgment of conviction and order of sentence passed by the Fast Track Court, contended that the evidence of PW.1 and PW.2 and the evidence of the Doctors - PW.10, PW.12 and PW.13 as well as the documents produced as per Exs.P7 and P8 - wound certificates clearly depicts that because of the unlawful assembly formed by the accused persons and the assault made by them with pine clubs whereby they have committed the offences punishable under Sections 323, 324 and 307 of IPC. 14. The learned HCGP has further contended that insofar as the delay in lodging FIR is concerned, PW.9 in his evidence has categorically stated that on 14.09.2011, when he was on duty, PSI, Hebbur told him to go to General Hospital, Tumkur and to record the statement of C.W.1. 14. The learned HCGP has further contended that insofar as the delay in lodging FIR is concerned, PW.9 in his evidence has categorically stated that on 14.09.2011, when he was on duty, PSI, Hebbur told him to go to General Hospital, Tumkur and to record the statement of C.W.1. Accordingly, he went to the hospital and found that the injured was in a fit state of mind to give statement and recorded the statement of P.W.1 as per Ex.P1 and returned to the police station and handed over the same to PSI. Thereafter, the jurisdictional police has registered the case on 14.09.2011 at 2.30 p.m. P.W.10 Dr.B.S.Manjunath has supported the case of the prosecution and examined the injured persons on 13.09.2011 and issued the wound certificates as per Ex.P7 and P8. A perusal of Ex.P7 shows that P.W.1 was treated at General Hospital, Tumkur I.P.No.959/18541 and while issuing Ex.P7, the Doctor had gone through the discharge summary of Panacea Hospital. Ex.P7 wound certificate clearly indicates that PW.1 has sustained linear finger nail abrasion over the right side of neck etc. In view of the evidence of PW.9 and PW.10, the delay in lodging FIR is a curable defect, which does not hinder the prosecution to proceed in accordance with law. 15. The learned HCGP has further contended that though the contention of the learned counsel for the appellants is that there was contradiction between the evidence of PW.1 and PW.2, absolutely there is no contradiction in the evidence. He would further contend that in view of the categorical evidence of PW.1 and PW.2 and the evidence of PW.12 and 13 and the material documents Exs.P7 and P8 - wound certificates which clearly depicts that PW.1 - Gangadharaiah has sustained injuries in which injury nos.1, 2, 5 and 7 are soft tissue injuries within 12 hours old and simple in nature and injury nos.3, 4 and 6 are associated with blunt trauma to abdomen and have led to rupturing of right renal Angiomyolipoma and the said injuries are within 12 hours old which led to grievous hurt; and PW.2 has sustained the injuries which are soft tissue injuries within 12 hours old and are simple in nature. Therefore, he submitted that the impugned judgment of conviction and order of sentence passed by the trial court is just and proper. Therefore, he sought to dismiss the appeal. 16. Therefore, he submitted that the impugned judgment of conviction and order of sentence passed by the trial court is just and proper. Therefore, he sought to dismiss the appeal. 16. In view of the rival contentions urged by the learned counsel for the parties, the only point that arises for consideration in the present appeal is: "Whether accused nos.2, 3 and 5 have made out a case to interfere with the impugned judgment of conviction and order of sentence and to reduce the order of sentence against accused nos.2, 3 and 5 in the peculiar facts and circumstances of the present case?" 17. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material including the original records, carefully. 18. In order to re-appreciate the oral and documentary evidence on record, it is relevant to consider the sum and substance of the evidence of the prosecution witnesses: 19. Pw.1 Gangadharaiah, Complainant, has stated in examination-in-chief that accused nos.2, 3 and 4 have assaulted PW.1, accused no.5 bit his wife and assaulted his wife PW.2 and PWs.3 to 5 have pacified the incident. The material objects used were marked as M.Os.1 and 2. He has further deposed that he was taken to Hebbur hospital and Tumkur hospital by his wife and thereafter he was taken to Bangalore hospital by his wife and his elder brother Rangaswamaiah, who has not been examined. In the crossexamination, he has admitted that his elder brothers namely, Hanumanthaiah and Boregowda were residing in Bengaluru, but he has categorically denied that he was not residing at Honnenahalli. In the complaint - Ex.P1 also, the complainant has stated that he is a resident of Honnenahalli. Wound certificates produced as per Exs.P7 and P8 of PW.1 and PW.2 depicts the residence at Honnenahalli. 20. Pw.2 (CW.2), who is the wife of PW.1, has also supported the case of the prosecution that she took PW.1 to Hebbur Hospital and deposed that when she went to rescue her husband, she was also assaulted by the accused persons. When a suggestion was made to her in the crossexamination as to whether PW.1 or she has given any documents to the police or not, she is not aware of the said fact. 21. When a suggestion was made to her in the crossexamination as to whether PW.1 or she has given any documents to the police or not, she is not aware of the said fact. 21. Pw.3 - Kemparangaiah, PW.4 Rangegowda and PW.5 Rangappa are stated to be witnesses, who pacified the incident between the accused and PW.1 and PW.2, have turned hostile. Their statements were recorded before the police as per Exs.P3 to P5. But, they have admitted that they have acquaintance with both the accused persons and CW.1 and CW.2 and they have not supported the case of the prosecution. 22. Pw.6 - Gangarangaiah and PW.7 Lokesh, who are witnesses to Ex.P6 seizure of Mahazar MO.Nos.1 and 2, both have turned hostile and have not supported the case of the prosecution. 23. Pw.8 - Gangaiah, Police constable, who recorded the statement of PW.1 as per Ex.P2 at Panacea Hospital on 08.10.2011, has supported the case of the prosecution. 24. Pw.9 Prakash, ASI who recorded the statement of PW.1 at General Hospital, Tumkur as per Ex.P1 on 14.09.2011 and based on the said complaint, the jurisdictional police has registered the case in Crime No.141/2011. 25. Pw.11 Rangaswamy, who has registered FIR as per Ex.P9 has filed the final report on 01.12.2011 against the accused persons, has supported the case of the prosecution. 26. Pw.12 Dr. K.Siddaraju, who has examined PW.1 on 14.09.2011, referred PW.1 for further examination to PW.13. PW.13 - Dr. Girish (Urologist) has examined C.W.1 and he has deposed that on scanning, he found that right kidney was damaged and surgery was done on 21.09.2011 and since the right kidney was gravely damaged, the upper portion of the right kidney was removed and he even referred the injured to Dr. Ashwin Kumar, Surgical Gastro Entrologist. Exs.P10 and P11 - Discharge summary and the case sheet were marked. He deposed that because of the external injury, upper portion of the kidney on the inside was damaged and there was bleeding and to stop the bleeding, upper portion was removed. 27. On careful perusal of the oral and documentary evidence on record, it clearly depicts that the statements of PW.1 - Gangadharaiah were recorded on 14.09.2011 and 08.10.2011. The allegations were made against all the accused. Though the incident occurred on 13.09.2011 at 7 a.m., FIR was registered on 14.09.2011 at about 2.30 p.m. after recording the statement. 27. On careful perusal of the oral and documentary evidence on record, it clearly depicts that the statements of PW.1 - Gangadharaiah were recorded on 14.09.2011 and 08.10.2011. The allegations were made against all the accused. Though the incident occurred on 13.09.2011 at 7 a.m., FIR was registered on 14.09.2011 at about 2.30 p.m. after recording the statement. The delay in lodging the FIR is from 7 a.m. on 13.09.2011 till 2.30 p.m. on 14.09.2011. As rightly contended by the learned HCGP on the basis of the evidence of PW.8 and PW.9, the delay in lodging the F.I.R is a curable defect, which should not be a ground to disbelieve the case of the prosecution. 28. Pw.2 Mahalakshmi, wife of PW.1 - injured witness has deposed that only one person was holding the club among the accused. PWs.3 to 6 and 7 have turned hostile and they have not supported the case of the prosecution. Their statements were recorded by the police as per Ex.P3, P4, P5 and P6 and nothing has been elicited against the accused persons. 29. It is also not in dispute that PW.8 Gangaiah, Police Constable who was accompanied by HC No.177 had recorded the statement of PW.1 on 08.10.2011 in Panacea Hospital as per the instructions of Head Constable as per Ex.P2. PW.9 Prakash, ASI, Hebbur Police Station has recorded the statement of PW.1 on 14.09.2011 at General Hospital, Tumkur as per Ex.P1. PW.9 has admitted in the crossexamination that he did not receive any intimation on 13.09.2011 from the Primary Health Centre, Hebbur about the hospitalization of PW.1 and his treatment. 30. Pw.10 Dr. B.S.Manjunath has issued Exs.P7 and P8 - wound certificates of PW.1 and PW.2 which depicts that PW.1 sustained seven injuries. The Doctor - PW.10 who issued Ex.P7 opined that injury nos.3, 4 and 6 are associated with blunt trauma to abdomen and have led to rupturing of right renal Angiomyolipoma and the said injuries are within 12 hours old which led to grievous hurt. Ex.P8 - wound certificate pertains to PW.2 and the Doctor has stated that the injuries are soft issue injuries within 12 hours old and are simple in nature. PW.11 Rangaswamy, PSI registered the case in Crime No.141/2011. PW.12 Dr. K.Siddaraju, Panacea Hospital diagnosed PW.1 on 14.09.2011 and referred him to PW.13 - Dr. Girish, Urogolist and Gastroentrologist. Ex.P8 - wound certificate pertains to PW.2 and the Doctor has stated that the injuries are soft issue injuries within 12 hours old and are simple in nature. PW.11 Rangaswamy, PSI registered the case in Crime No.141/2011. PW.12 Dr. K.Siddaraju, Panacea Hospital diagnosed PW.1 on 14.09.2011 and referred him to PW.13 - Dr. Girish, Urogolist and Gastroentrologist. PW.13 on scanning found that right kidney was damaged and surgery was done on 21.09.2011. Thereafter, discharge summary and case sheet were issued as per Ex.P10 and Ex.P11. 31. Considering the material evidence on record, the oral evidence of PW.1 and PW.2 and PW.10, 12, 13, the accused have caused grievous hurt to PW.1 and injury Nos.3, 4 and 6 sustained by PW.1 as per Ex.P7 are grievous in nature and injuries sustained by PW.2 are simple in nature. The material on record clearly indicates that it is a case where the accused have committed the offences punishable under Sections 323 and 325 of IPC. At any stretch of imagination, it would not attract Section 307 of IPC. Furthermore, the prosecution has not proved the basic ingredients of Section 307 of IPC which reads as under: "Section 307. Attempt to murder "Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine; and, if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned. Attempts by Life Convicts: When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death." A careful reading of the provisions of the said Section would clearly indicate that whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine; and, if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned. 32. Admittedly, in the present case, the intention and knowledge of accused nos.2, 3 and 5 in order to kill PW.1 and PW.2 was not made out. As stated by PW.1 and 2, accused no.1 assaulted PW.1 with pine clubs and other persons assaulted with hands. It is specifically stated that accused no.5 only bit PW.2 on her shoulder. Therefore, the provisions of Section 307 of IPC would not attract. Our view is fortified by the judgment of the Hon'ble Supreme Court in the case of State of Madhya Pradesh v. Kanha, (2019) 3 SCC 605 . Paragraphs 9 to 20 of the said judgment read as under: "9. Section 307 of the Penal Code reads thus: "307. Attempt to murder. Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned. Attempts by life convicts. When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death. Illustrations (a) A shoots at Z with intention to kill him, under such circumstances that, if death ensued, A would be guilty of murder. A is liable to punishment under this section. (b) A, with the intention of causing the death of a child of tender years, exposes it in a desert place. A has committed the offence defined by this section, though the death of the child does not ensue. (c) A, intending to murder Z, buys a gun and loads it. A has not yet committed the offence. A fires the gun at Z. He has committed the offence defined in this section, and, if by such firing he wounds Z, he is liable to the punishment provided by the latter part of the first paragraph of this section. (d) A, intending to murder Z, by poison, purchases poison and mixes the same with food which remains in A's keeping; A has not yet committed the offence in this section. (d) A, intending to murder Z, by poison, purchases poison and mixes the same with food which remains in A's keeping; A has not yet committed the offence in this section. A places the food on Z's table or delivers it to Z's servants to place it on Z's table. A has committed the offence defined in this section." (emphasis supplied) The first part of Section 307 refers to "an act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder". The second part of Section 307, which carries a heavier punishment, refers to "hurt" caused in pursuance of such an "act". 10. Several judgments of this Court have interpreted Section 307 of the Penal Code. In State of Maharashtra v. BalramBamaPatil, (1983) 2 SCC 28 , this Court held that it is not necessary that a bodily injury sufficient under normal circumstances to cause death should have been inflicted: (SCC p.32, para 9) "9...To justify a conviction under this section 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 in coming to a 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 person assaulted is concerned, but 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." (emphasis supplied) This position in law was followed by subsequent Benches of this Court. 11. 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." (emphasis supplied) This position in law was followed by subsequent Benches of this Court. 11. In State of M P v Saleem, (2005) 5 SCC 554 , this Court held thus:(SCC pp.559-60, para 13) "13. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The section makes a distinction between the act of the accused and its result, if any. The court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. Therefore, an accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt." (emphasis supplied) 12. In Jage Ram v. State of Haryana, (2015) 11 SCC 366 , this Court held that to establish the commission of an offence under Section 307, it is not essential that a fatal injury capable of causing death should have been inflicted:(SCC p.370 para 12) "12. For the purpose of conviction under Section 307 IPC, the prosecution has to establish (i) the intention to commit murder; and (ii) the act done by the accused. The burden is on the prosecution that the accused had attempted to commit the murder of the prosecution witness. Whether the accused person intended to commit murder of another person would depend upon the facts and circumstances of each case. To justify a conviction under Section 307 IPC, it is not essential that fatal injury capable of causing death should have been caused. Although the nature of injury actually caused may be of assistance in coming to a finding as to the intention of the accused, such intention may also be adduced from other circumstances. To justify a conviction under Section 307 IPC, it is not essential that fatal injury capable of causing death should have been caused. Although the nature of injury actually caused may be of assistance in coming to a finding as to the intention of the accused, such intention may also be adduced from other circumstances. The intention of the accused is to be gathered from the circumstances like the nature of the weapon used, words used by the accused at the time of the incident, motive of the accused, parts of the body where the injury was caused and the nature of injury and severity of the blows given, etc." 13. The above judgments of this Court lead us to the conclusion that proof of grievous or lifethreatening hurt is not a sine qua non for the offence under Section 307 of the Penal Code. The intention of the accused can be ascertained from the actual injury, if any, as well as from surrounding circumstances. Among other things, the nature of the weapon used and the severity of the blows inflicted can be considered to infer intent. 14. The trial court based its conviction on the evidence adduced at the trial. PW1, Dr P K Mishra had examined the injured on 8-10-2003 and found 11 punctured wounds of sizes varying from 0.4 x 0.5 cm to 0.4 x 0.6 cm. The injuries were bleeding, but no blackness was present. He noted that the wounds were caused by a firearm and were inflicted in six hours before the examination. The witness stated that the confirmation of the injuries depended on the X-Ray report and expert opinion of the ward doctor. The report of the Radiologist (PW2) stated that he had observed multiple small rounded radiopaque shadows of metallic density. This is indicative of the presence of firearm injuries. 15. Based on the evidence of the witnesses, the Trial court came to the conclusion that the injuries were caused by the respondent. Dashrath Singh (PW11) deposed that the respondent shot at him in the right thigh with a countrymade rifle. The complainant (PW12) stated that the respondent fired at PW11 with a deliberate intention to kill him. The ocular evidence is cogent and corroborated by the medical evidence. 16. Dashrath Singh (PW11) deposed that the respondent shot at him in the right thigh with a countrymade rifle. The complainant (PW12) stated that the respondent fired at PW11 with a deliberate intention to kill him. The ocular evidence is cogent and corroborated by the medical evidence. 16. Based on the evidence on record, the Trial court held that it could not be proved that the other accused had a common intention of causing injuries or death upon Dashrath Singh. Thus, the coaccused were acquitted of charges. 17. The trial court found that PW.4, PW.8 and PW.13, who were present near the place of incident, had sustained injuries. The witnesses had admitted that they were hit by bullet shots. The court concluded that it was established that at the date, time and venue of the said incident, a fire arm had been used and the aforementioned witnesses had also suffered bullet injuries. The Court held that it was substantiated that the shots fired by the respondent first hit the injured Dashrath Singh. The injured Dashrath Singh had stated that the house of the respondent was 40-50 m from the spot where the incident took place. It was held that in such circumstances if a fire arm is shot at such a distance, the shot gets dispersed and may hit persons in the vicinity. There existed a longstanding dispute between the parties with regard to the business of cable discs and an altercation took place with regard to it. In the quarrel that ensued, the respondent fired at Dashrath Singh, injuring him. 18. The evidence establishes that the injuries were caused by a firearm. The multiplicity of wounds indicates that the respondent fired at the injured more than once. The fact that hurt has been caused by the respondent is sufficiently proven. The lack of forensic evidence to prove grievous or a lifethreatening injury cannot be a basis to hold that Section 307 is inapplicable. This proposition of law has been elucidated by a two-Judge bench of this Court in Pasupuleti Siva Ramakrishna Rao v. State of A.P, (2014) 5 SCC 369 : (SCC p.376, para 18) "18. The lack of forensic evidence to prove grievous or a lifethreatening injury cannot be a basis to hold that Section 307 is inapplicable. This proposition of law has been elucidated by a two-Judge bench of this Court in Pasupuleti Siva Ramakrishna Rao v. State of A.P, (2014) 5 SCC 369 : (SCC p.376, para 18) "18. There is no merit in the contention that the statement of medical officer that there is no danger to life unless there is dislocation or rupture of the thyroid bone due to strangulation means that the accused did not intend, or have the knowledge, that their act would cause death. The circumstances of this case clearly attract the second part of this section since the act resulted in Injury 5 which is a ligature mark of 34 cm 0.5 cm. It must be noted that Section 307 IPC provides for imprisonment for life if the act causes "hurt". It does not require that the hurt should be grievous or of any particular degree. The intention to cause death is clearly attributable to the accused since the victim was strangulated after throwing a telephone wire around his neck and telling him that he should die. We also do not find any merit in the contention on behalf of the accused that there was no intention to cause death because the victim admitted that the accused were not armed with weapons. Very few persons would normally describe the Thumbs up bottle and a telephone wire used, as weapons. That the victim honestly admitted that the accused did not have any weapons cannot be held against him and in favour of the accused." (emphasis supplied) 19. In the present case, the nature of the injuries shows that there were eleven punctured wounds. The weapon of offence was a firearm. The circumstances of the case clearly indicate that there was an intention to murder. The presence of 11 punctured and bleeding wounds as well as the use of a fire arm leave no doubt that there was an intention to murder. Thus, the second part of Section 307 of the Penal Code is attracted in the present case. The judgment of the High Court overlooks material parts of the evidence and suffers from perversity. 20. Thus, the second part of Section 307 of the Penal Code is attracted in the present case. The judgment of the High Court overlooks material parts of the evidence and suffers from perversity. 20. Hence, we set aside the judgment of the High Court and restore the order of conviction by the trial court under Section 307 of the Penal Code as well as the sentence awarded of rigorous imprisonment of 3 years and a fine of Rs. 1000. The appeal is, accordingly allowed. The respondent shall forthwith surrender to serve out the sentence. A copy of the judgment shall be forwarded by the Registry to the Chief Judicial Magistrate concerned to secure compliance." 33. It is relevant to state that injury nos.3, 4 and 6 sustained by PW.1 are as under: "3. Linear finger nail abrasion on the right hypochondricon in the mid clavicular line. 4. Swelling and tenderness over the right lumbar region on the lateral aspect. 6. Finger nail abrasions over the left side of upper abdomen." Admittedly, in the present case, it has to be seen whether the overt act of appellant nos.2 to 4 were committed with the intention to cause the death of PW.1 and PW.2 so as to attract the offence under Section 307 of IPC. It may fall under the provisions of Sections 323 and 325 of IPC. To justify conviction under Section 307 of IPC, the Court has to see whether act was done with an intention to commit murder of PW.1 and PW.2 and although nature of injuries caused may be of assistance in coming to a finding as to intention of the accused, such intention may also be gathered from circumstances like nature of weapons used, parts of body where injuries were caused, severity of blows given and motive etc. PW.10 - Dr.B.S.Manjunath as per Exs.P7 and P8 - wound certificates issued on behalf of PW.1 and PW.2 has stated in respect of PW.1 that injury nos.3, 4 and 6 are associated with blunt trauma to abdomen and have led to rupturing of right renal Angiomyolipoma and the said injuries are within 12 hours old which led to grievous hurt. As per Ex.P8 in respect of PW2, the injuries are soft tissue injuries within 12 hours old and are simple in nature. As per Ex.P8 in respect of PW2, the injuries are soft tissue injuries within 12 hours old and are simple in nature. It is true that the 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, appellant nos.2 to 4 are not liable to be convicted for the offence punishable under Section 307 of IPC. At the same time, for having voluntarily caused grievous hurt, they are liable to be convicted under the provisions of Sections 323 and 325 of IPC. Though PW.3 to PW.7 who are the alleged witnesses, who pacified the incident between the accused and PW.1 and 2, have not supported the case of the prosecution with regard to Section 307 of IPC, but the statements recorded as per Ex.P3, 4, 5 and 6 and the evidence of PW.1 and 2 and PW.10 - Doctor, PW.12 and PW.13 - Doctor and the material evidence as per Exs.P7 and P8 clearly depicts that the accused persons made an attempt to cause grievous injuries to PW.1 and PW.2. 34. For the reasons stated above, the point raised in the present appeal has to be answered in the affirmative holding that the accused persons have made out a case to interfere with the impugned judgment of conviction and order of sentence and to reduce the punishment against appellant Nos.2 to 4/accused nos.2, 3 and 5 in respect of offences under Sections 323 and 325 of IPC and acquit the said accused in respect of offence under Section 307 of IPC. 35. Considering the circumstances of the case, keeping in view the age of appellant nos.2 to 4, their family strength as also the fact that the incident took place in the year 2011, the custodial sentence of 6 months rigorous imprisonment under the provisions of Section 323 of IPC and custodial sentence of 3 years rigorous imprisonment under Section 325 of IPC as against appellant nos.2 to 4 would meet the ends of justice. 36. As already stated above, the prosecution based on the oral and documentary evidence on record, has proved beyond reasonable doubt that accused nos.2, 3 and 5 have committed the offences punishable under Sections 323 and 325 of IPC. 36. As already stated above, the prosecution based on the oral and documentary evidence on record, has proved beyond reasonable doubt that accused nos.2, 3 and 5 have committed the offences punishable under Sections 323 and 325 of IPC. Charging Sections 323 and 325 of IPC depicts whoever voluntarily causes hurt shall be punished with imprisonment of either description for a term which may extend to one year or with fine to an extent of Rs.1,000/- and for a term which may extend to seven years and shall also be liable to fine. Taking into consideration the entire material on record, the fact that the prosecution has only proved that appellant nos.2 to 4 have committed the offences under the provisions of Sections 323 and 325 of IPC, the punishment imposed on them has to be reduced. 37. At this stage, the learned counsel for the appellants submits that appellant No.2 (Accused No.2) is in judicial custody from the date of the impugned judgment and order of conviction and sentence passed by the trial court i.e., for a period of more than five years and the period of sentence already undergone by him may be treated as sufficient sentence for the offences punishable under Sections 323 and 325 of IPC. 38. The entire material on record clearly depicts that there is absolutely no material against accused no.5/appellant no.4 who is a woman aged about 43 years and except the evidence of C.W.2 that accused no.5 bit her shoulder, there is no evidence against her to attract the provisions of Sections 143, 147, 323, 324, 504, 506 and 307 r/w 149 IPC. Therefore, the punishment imposed by the learned Presiding Officer on appellant no.4/accused no.5 is liable to be set aside. Accordingly, appellant no.4/accused no.5 is hereby acquitted of the aforesaid offences, as the prosecution has utterly failed to prove the offences alleged against her beyond reasonable doubt. The bail bond in respect of appellant no.4/accused no.5 is cancelled. 39. In so far as the judgment relied upon by the learned counsel for the appellants in the case of Thulia Kali vs- The State of Tamil Nadu, (1972) 3 SCC 393 with regard to delay in filing the FIR, this Court has no quarrel with the law laid down by the Hon'ble Supreme Court in the facts and circumstances of the said case. But, admittedly in the present case, there was a delay of 36 hours in filing the FIR, which is curable defect stated supra and the said judgment has no application to the facts and circumstances of the present case. 40. In the another judgment relied upon by the learned counsel for the appellants in the case of Sakariya vs- State of M.P, (1991) CriLJ 1925 , the learned Single Judge of the Madhya Pradesh High Court (Indore Bench) while considering the provisions of Section 376 of the Indian Penal Code observed that "Rape Defence Statement of accused containing plain denial and false implication Subsequent suggestion by defence lawyer to prosecutrix about consent on her part Does not amount to admission that accused was guilty". The said judgment has no application to the facts and circumstances of the present case. 41. In view of the above, we pass the following: ORDER 1. The Criminal Appeal is allowed in part. 2. The Criminal Appeal abates insofar as Appellant No.1 (Accused No.1). The memo dated 25.6.2020 filed by the learned counsel for the appellants stating that the legal heirs of Accused No.1 have agreed to deposit the fine amount of Rs.2,000/- (Rupees two thousand only) imposed by the trial court in respect of Accused No.1, is accepted subject to payment of fine amount before the trial court, as agreed. 3. The impugned judgment passed by the trial court insofar as convicting Appellant No.4 (Accused No.5) Jayalakshmamma for the offences punishable under Sections 143, 147, 323, 324, 504, 506 and 307 r/w Section 149 of IPC and sentencing her for the said offences, is hereby set aside. Appellant No.4 (Accused No.5) is acquitted of the said offences. 4. Appellant No.4 (Accused No.5) shall be released, in case if she is not required in any other case. 5. The bails bonds of appellant No.4 (Accused no.5), who is on bail, shall stand cancelled. 6. In view of acquittal of appellant No.4 (Accused No.5), the fine amount, if any, deposited in respect of her as per the impugned judgment, shall be released/disbursed in her favour in accordance with law. 7. 5. The bails bonds of appellant No.4 (Accused no.5), who is on bail, shall stand cancelled. 6. In view of acquittal of appellant No.4 (Accused No.5), the fine amount, if any, deposited in respect of her as per the impugned judgment, shall be released/disbursed in her favour in accordance with law. 7. The impugned judgment and order of conviction and sentence passed by the trial court insofar as convicting appellant Nos.2 and 3 (accused Nos.2 and 3) for the offence punishable under Section 307 of IPC and sentencing them to undergo life imprisonment for the said offence, is hereby set aside. Appellant Nos.2 and 3 (Accused Nos.2 and 3) are acquitted of the offence punishable under Section 307 of IPC. 8. The impugned judgment and order of conviction and sentence passed by the trial court insofar as convicting appellant Nos.2 and 3 (Accused Nos.2 and 3) for the offences punishable under Sections 143, 147, 323, 324, 504, 506 r/w Section 149 of IPC and sentencing them for the said offences, is hereby modified and it is ordered that appellant Nos.2 and 3 (Accused Nos.2 and 3) are convicted for the offences punishable under Sections 323 and 325 of IPC and they are sentenced to undergo six months Rigorous Imprisonment for the offence punishable under Section 323 of IPC and three years Rigorous Imprisonment for the offence punishable under Section 325 of IPC with fine of Rs.20,000/- (Rupees twenty thousand only) each and in default of payment of fine amount, they shall undergo further rigorous imprisonment for six months. The sentences shall run concurrently. 9. Appellant Nos.2 and 3 (Accused Nos.2 and 3) are entitled to the benefit of set off as contemplated under the provisions of Sections 428 of the Code of Criminal Procedure. 10. If appellant No.2 (Accused No.2) has already undergone the sentence imposed by this Court as stated by the learned counsel for the appellants, the concerned authorities shall take necessary steps immediately to release him, after payment of the fine amount imposed in terms of the present order, if he not required in any other case. 11. Appellant No.3 (Accused No.3) shall be present before the jurisdictional Court to undergo the sentence imposed by this Court within a period of two months i.e., on or before 10th August 2020, failing which the jurisdictional Court shall execute the order passed by this Court in accordance with law. 11. Appellant No.3 (Accused No.3) shall be present before the jurisdictional Court to undergo the sentence imposed by this Court within a period of two months i.e., on or before 10th August 2020, failing which the jurisdictional Court shall execute the order passed by this Court in accordance with law. The impugned judgment and order of conviction and sentence passed by the trial court is modified accordingly.