JUDGMENT : This appeal is preferred by the accused, feeling aggrieved by the judgment dated 24.09.2011 passed by the Court of II Additional District and Sessions Judge, Tumkur in S.C.No.84/2006, convicting and sentencing him for an offence punishable under Section 307 of IPC. 2. Heard and perused the material on record. 3. The brief facts of the prosecution case are that, the victim/first informant (P.W.1) was doing contract work since 10-12 years and he had undertaken contract work of Hemavathi Canal and doing construction work near Golenahalli village. One Mahadev was working as Mestri and under him about six to seven persons were working. The work was in progress since 1½ months. The accused joined as a watchman and thereafter, started doing coolie work. He was frequently asking P.W.1 to give him money but P.W.1 had refused. Hence, on 26.04.2003, there was a quarrel between them. On the date of incident, i.e., on 27.04.2003 at about 7.30 p.m accused telephoned to the house of P.W.1’s aunt asking to send him to his aunt’s house. P.W.1 went and waited for ½ hour in his aunt’s house for the phone call and since the accused did not turn up, at about 8.15 p.m he was proceeding to his house. When he reached the compound wall of the house, the accused suddenly came and with an intention to do away with his life, stabbed on his abdomen with a knife. 4. P.W.1/victim was shifted to the Government hospital, Tumkur for treatment. P.W.5/PSI of Tilak Park Police Station on receiving the information, visited the hospital and recorded his statement in the presence of doctor, as per Ex.P.1 and thereafter, registered the case and forwarded FIR/Ex.P.5 to the Jurisdictional Court. 5. P.W.5 conducted spot mahazar-Ex.P.2. The blood stained shirt of the victim/P.W.1 was seized under a mahazar-Ex.P.3. Further investigation was taken over by P.W.6-PSI. On 28.10.2003, the accused was arrested and his voluntarily statement as per Ex.P.7 was recorded. The knife-MO2 was seized at his instance. After completion of investigation charge sheet was filed against the accused for offence punishable under Section 307 of IPC and he was tried for the said offence. 6. The learned Sessions Judge by judgment dated 30.12.2006 in SC No.84/2006 convicted and sentenced the accused for an offence punishable under Section 326 of IPC. The said Judgment was challenged by way of an appeal by the accused before this Court. 6. The learned Sessions Judge by judgment dated 30.12.2006 in SC No.84/2006 convicted and sentenced the accused for an offence punishable under Section 326 of IPC. The said Judgment was challenged by way of an appeal by the accused before this Court. The appeal was allowed and the matter was remitted back to the trial court for examining the doctor and to pass a fresh judgment. After remand of the case, Medical officer was examined as P.W.7. Considering the oral and documentary evidence on record, learned Sessions Judge vide impugned judgment dated 24.09.2011 convicted the accused for the offence punishable under Section 307 of IPC and sentenced him to suffer rigorous imprisonment for 4 years and to pay a fine of Rs.3,000/-and in default to pay the fine, to suffer rigorous imprisonment for one year, which judgment is under challenge. 7. To establish the guilt of the accused prosecution has got examined seven witnesses and got marked Ex.P.1 to Ex.P.10 and Mo1 and Mo2. 8. The first informant namely the victim is examined as P.W.1. In his evidence he has deposed that on 27.04.2003, the accused called him over phone in the name of Mestri stating that his wife is not keeping well and asked him to come near his neighboring house. Accordingly, he went and waited for his phone call upto 45 minutes. Thereafter, while he was returning to his house at about 8.30 p.m and when he had entered the compound wall of his house, the accused who was standing inside the compound, all of a sudden took out a knife and pierced on the left side of his stomach. He fell down and saw blood was oozing. As he raised alarm, his wife and neighbouring persons rushed to the spot. He was shifted to the hospital in an auto-rikshaw and hospitalized for 15 days, wherein he was operated. He has further stated that police came to the hospital and recorded his statement as per Ex.P.1. 9. It is the contention of the learned counsel for the appellant that the story narrated in the FIR and evidence adduced by PW.1 before the court are entirely different. As per Ex.P.1, accused made a telephone call to P.W.1’s mother-in-law asking her to send a word to him to come near his mother-in-law’s house to calculate the wages. 9. It is the contention of the learned counsel for the appellant that the story narrated in the FIR and evidence adduced by PW.1 before the court are entirely different. As per Ex.P.1, accused made a telephone call to P.W.1’s mother-in-law asking her to send a word to him to come near his mother-in-law’s house to calculate the wages. Whereas, in the evidence, P.W.1 has stated that the accused made a telephone call to P.W.1 himself in the name of Mestri and stating that his wife is not keeping well, asked him to come near neighbouring house. He therefore, contends that the complaint averments are not corroborated by the evidence of P.W.1, which creates doubt in the prosecution case. 10. It is relevant to see that as per Ex.P.1, the victim sustained injuries to his abdomen and he was bleeding. He was shifted to the hospital wherein, the police recorded his statement as per Ex.P.1. The discrepancy pointed out by the learned counsel for appellant is not material since the fact remains that the injured was admitted to the hospital immediately after the incident and in Ex.P.1 he has clearly stated that the accused caused injuries to his abdomen with a knife and ran away. 11. It is the further contention of the learned counsel for the appellant that as per spot mahazar-Ex.P.2, the place of incident is covered with thorn fencing and sharp stones and therefore there is a possibility that the injured might have fallen on sharp edged stones or thorn fencing and sustained those injuries. It is his contention that on account of a dispute with regard to the wages to be paid, which dispute is actually between the accused and Mestri, the accused has been falsely implicated. He would point out that the doctor who examined P.W.1, in his cross examination has not ruled out the possibility of injuries being sustained by falling on sharp edged object. 12. The incident has occurred on 27.04.2003 at about 8.15 p.m. Immediately after the incident, P.W.1 was shifted to the hospital. P.W.5 has stated that he received the information regarding admission of the injured to the hospital and went to the hospital and saw P.W.1 with injuries to his stomach. He recorded his statement between 10 to 11 p.m as per Ex.P.1. P.W.5 has stated that he received the information regarding admission of the injured to the hospital and went to the hospital and saw P.W.1 with injuries to his stomach. He recorded his statement between 10 to 11 p.m as per Ex.P.1. The fact that the hospital authorities sent an intimation to the police shows that it was not an accidental fall. Further P.W.1 has categorically denied in his cross examination that he has sustained injuries on account of a fall. At the earliest point of time the injured has mentioned the name of the accused as the one who caused injuries to him, which is evident from the wound certificate-Ex.P.9, wherein, history of assault given is that the accused caused injuries with a knife. Hence, the contention of the learned counsel for appellant cannot be accepted. 13. It is contended by the learned counsel for the appellant that recovery of knife is not proved by the prosecution. He has contended that P.W.2, none other than the wife of the injured has categorically stated that on the very next day of the incident, the police have seized the knife and conducted a mahazar. 14. According to prosecution, the accused was arrested on 28.10.2003 and his voluntary statement as per P.W.7 was recorded. At his instance MO2 that is knife was recovered. The said recovery is after six months from the date of incident. It is relevant to see that P.W.2 namely wife of the injured in her chief examination has stated that on the next day, the police came near the house, seized the knife and also prepared spot mahazar and she has signed the said mahazar. P.W.2 has not been cross-examined by the prosecution in this aspect. Hence it is very difficult to believe that it was the accused who produced the knife after 6 months from the date of incident i.e., after his arrest. The evidence of P.W.4 panch witness to the seizure mahazar Ex.P.4 is to the effect that the accused produced the knife which was concealed in a heap of stone. However, he has not stated that from where exactly the knife was recovered. In the cross examination, P.W.6-IO has stated that knife was seized from the place situated at the rear portion of Veerashaiva Kalyana Mantapa and that knife was found concealed below the stone slab. The same is not stated by P.W.4. However, he has not stated that from where exactly the knife was recovered. In the cross examination, P.W.6-IO has stated that knife was seized from the place situated at the rear portion of Veerashaiva Kalyana Mantapa and that knife was found concealed below the stone slab. The same is not stated by P.W.4. In view of the categorical statement made by P.W.2 that the knife was seized by the police on the very next day, on which day accused was not even arrested, the case of the prosecution that the knife was seized at the instance of accused appears to be doubtful. 15. P.W.2 is not an eye-witness to the incident. However, she has stated that after hearing the sound of her husband she rushed to the spot and saw her husband fallen down. He told her that it was the accused who stabbed him with a knife. Thereafter, she along with one Arvind shifted him to Tumkur General Hospital wherein, he took treatment for 15 days and surgery was also conducted. 16. Though it is the case of prosecution that the injured was in the hospital for about 15 days and surgery was conducted, no medical records have been produced to show that P.W.1 was an inpatient in the hospital for 15 days and surgery was conducted. It is relevant to note the evidence of Medical officer–PW.7 in this regard. He has stated that on 27.04.2003 at about 8.30 p.m, P.W.1 was brought to the hospital with a history of assault and on examination he noticed a cut injury. He was admitted and given treatment. He has issued would certificate marked as Ex.P.9. According to him if timely treatment was not given, injury could have been fatal. In the cross-examination P.W.7 has specifically stated that he has not conducted any surgery. Further he has not stated that P.W.1 was admitted in the hospital for 15 days. He has specifically stated that there was no bleeding from the injury. According to Ex.P.9, P.W.1 had sustained an incised wound about 6cmX4cm on the left side of abdomen with Omentum Protruding 10cms lateral to the umbilicus. The said injury is stated to be grievous in nature. However, P.W.7 in his evidence has stated that he has noticed the cut injury on the left side of the abdomen and there was no bleeding. The said injury is stated to be grievous in nature. However, P.W.7 in his evidence has stated that he has noticed the cut injury on the left side of the abdomen and there was no bleeding. It is also relevant to mention that P.W.7 in his cross examination has stated that before furnishing his opinion no weapon was produced before him. 17. On a careful perusal of the entire evidence and material on record, this court is of the considered view that P.W.1 sustained injury on his abdomen caused by the accused. However, it cannot be said that the prosecution has been able to establish that the injury was inflicted by the accused with an intention of committing the murder. Admittedly, there was one injury noticed on the left side of the abdomen. It is not the case of prosecution that after stabbing P.W.1, accused has again tried to stab him. Hence, the intention of the accused to do away with the life of P.W.1 has not been established and merely because the injury is on the abdomen, it cannot be held that the accused had an intention to commit murder. However, the doctor has stated that injury could have been fatal, if timely treatment was not given. 18. Since, the recovery of knife at the instance of accused is not established beyond reasonable doubt and the said knife was not sent for examination for opinion of the doctor, it cannot be held that the accused has inflicted a stab injury to P.W.1 with MO2. A reasonable doubt arises in the mind of Court that as to whether the accused has caused any injury with a knife or from any other object. In the above facts and circumstances, the prosecution has been able to establish that the accused has voluntarily caused grievous hurt to P.W.1 and thereby liable to be convicted for the offence punishable under Section 325 of IPC. 19. The learned counsel for the appellant submits that the incident took place in the year 2003 and 18 years have been lapsed and therefore prays for leniency. Hence, the following; ORDER Criminal appeal is partly allowed. The judgment and order of sentence dated 24.09.2011 passed by trial Court (II Additional District and Sessions Judge, Tumkur) in S.C.No.84/2006 convicting and sentencing the accused for the offence punishable under Section 307 of IPC is hereby set-aside. Hence, the following; ORDER Criminal appeal is partly allowed. The judgment and order of sentence dated 24.09.2011 passed by trial Court (II Additional District and Sessions Judge, Tumkur) in S.C.No.84/2006 convicting and sentencing the accused for the offence punishable under Section 307 of IPC is hereby set-aside. The accused is convicted for the offence punishable under Section 325 of IPC and sentenced to undergo SI for a period of 6 months and to pay a fine of Rs.5,000/- in default of payment of fine, to undergo simple imprisonment for 1 month. Accused is entitled to the benefit of set off under Section 428 of Cr.P.C.