JUDGMENT : – This Criminal Appeal under section 374(2) of Criminal Procedure Code has been filed by the appellant Satish Kumar @ Gudda against the judgment of conviction and order of sentence dated 23-10-1998 passed by learned Additional Sessions Judge, Jabalpur in Sessions Trial No. 964/1994, whereby the appellant Satish Kumar @ Gudda has been convicted for the offences punishable under sections 307 and 324 of Indian Panel Code and has been sentenced to undergo rigorous imprisonment for a period of 07 years and fine of 2000/- for commission of offence under section 307 of Indian Penal Code and rigorous imprisonment for a period of 01 year and fine of Rs. 500/- for commission of offences under section 324 of Indian Penal Code. He was further directed to undergo rigorous imprisonment for a period of one year and two months in default of payment of fine amount imposed upon him. 2. The prosecution story in short is that on 12-7-1994 at around 01:30 p.m. Santu @ Santosh who was admitted in Victoria Hospital, Jabalpur informed ASI K. G. Goswami (PW-1) that he resides near Pratap Dharam Kanta and makes shoes. Today i.e. 12-7-1994 at around 01:00 p.m. he along with Narayan Choudhary was standing near Biloran Paan Shop and was buying Gutka. That time Satish Gupta and Pappu Gupta, resident of Punjab Bank Colony were also standing there. They had some altercation with Narayan Choudhary, when he tried to pacify the matter, Satish Gupta with an intention to kill him gave a knife blow on his stomach but he turned due to which he sustained injury in the right side of his back. Satish Gupta also gave a knife blow to Narayan Choudhary, causing injury in his stomach. Blood started to ooze. Pappu Gupta abused them by uttering filthy words related to mother and sister and also exhorted that these people should not go alive today. Incident was witnessed by the shop keeper of Biloran Paan shop, Ballu Choudhary and others present there. On the basis of narration given by Santu @ Santosh, ASI K. G. Goswami (PW-1) recorded the Dehati Nalishi (Ex.P-1). On the basis of Dehati Nalishi (Ex.P-1) F.I.R. (Ex.P-4) was registered in Police Station Kotwali for commission of offence punishable under sections 307/34 of Indian Penal Code by A S I K. G. Goswami (PW-1). On the basis of narration given by Santu @ Santosh, ASI K. G. Goswami (PW-1) recorded the Dehati Nalishi (Ex.P-1). On the basis of Dehati Nalishi (Ex.P-1) F.I.R. (Ex.P-4) was registered in Police Station Kotwali for commission of offence punishable under sections 307/34 of Indian Penal Code by A S I K. G. Goswami (PW-1). He filled the forms Ex.P-2 and Ex.P-3 for examination of injuries sustained by Santu @ Santosh and Narayan Choudhary. In Victoria Hospital Dr. H. N. Mishra (PW-8) examined injured Santu @ Santosh and Narayan Choudhary and gave MLC reports Ex.P-2 and Ex.P-3. Dr. H. N. Mishra (PW-8) found the injury of Narayan Choudhary life threatening and referred him to the Medical College, Jabalpur for further treatment. In Medical College Jabalpur Dr. Vaishali Wahi (PW-5) examined and treated Narayan Choudhary (PW-10) and found his injury dangerous to life and gave MLC report Ex. P-7. 3. After investigation, Police Kotwali filed the charge-sheet against the appellant Satish Kumar @ Gudda and co-accused Pappu Gupta before the learned Judicial Magistrate First Class, who in his turn committed the case to the Court of Sessions. 4. Learned Additional Sessions Judge, Jabalpur framed charges against the accused persons for commission of offences under sections 307 (two count) of Indian Penal Code. Accused persons abjured their guilt and claimed to be tried. 5. In support of the case, prosecution has examined as many as 10 witnesses. K.G. Goswami (PW-1), Munna Patel (PW-2), Ballu @ Balram (PW-3), Ram Kumar @ Biloran (PW-4), Dr. Vaishali Wahi (PW-5), Lala Babu Lal Choudhary (PW-6), K. S. Bhati (PW-7), Dr. H. N. Mishra (PW-8), Ram Milan Patel (PW-9) and injured Narayan (PW-10). Whereas accused-persons have not examined any witness in support of their case. 6. Learned Additional Sessions Judge after recording the evidence of prosecution witnesses and hearing the parties, acquitted the accused Pappu @ Vikram Gupta but found the present appellant/accused Satish Kumar @ Gudda guilty for commission of offence under section 307 and 324 of Indian Penal Code and sentenced him as aforementioned. 7. Being aggrieved by the conviction and sentence imposed upon appellant/accused, this appeal has been filed on the ground that injured Santu @ Santosh who had lodged the Dehati Nalishi/F.I.R. has not been examined by prosecution. No independent witness has supported the case of prosecution. 7. Being aggrieved by the conviction and sentence imposed upon appellant/accused, this appeal has been filed on the ground that injured Santu @ Santosh who had lodged the Dehati Nalishi/F.I.R. has not been examined by prosecution. No independent witness has supported the case of prosecution. Therefore, learned trial Court has committed error in relying solely on the testimony of injured Narayan Choudhary (PW-10) and the evidence of medical witnesses. Learned counsel for the appellant further submitted that in absence of the evidence of Santu @ Santosh, maker of F.I.R., learned trial Court was not justified in convicting the appellant/accused for commission of offence under sections 307 and 324 of Indian Penal Code. Incident had taken place on the spur of moment, hence, appellant ought not to have been held guilty for commission of offence under section 307 of Indian Penal Code. At the most, offence falls under section 324 of Indian Penal Code. It was also submitted by learned counsel for appellant that the sentence imposed upon the present appellant is disproportionate and has prayed that it should be reduced to the period already undergone by the appellant/accused. 8. On the other hand, learned Government Advocate has supported the impugned judgment passed by the trial Court and has submitted that prosecution has proved its case beyond all reasonable doubts. Learned trial Court has not committed any error in convicting the appellant/accused for commission of offence under section 307 and 324 of Indian Penal Code as evidence of injured Narayan Choudhary is unrebutted and corroborated by the evidence of eyewitness, medical evidence and promptly lodged F.I.R. 9. Injured Narayan Choudhary (PW-10) in his evidence has deposed that he knew the accused Satish. Three years ago at Deepawali time, at around 01:00 p.m. he alongwith Santu @ Santosh was standing near ‘thela’ (hand cart), that time accused Satish and Pappu were beating a little boy. When he asked them as to why they are beating boy, they asked him not to interfere. When he tried to rescue that boy, Satish gave a knife blow on his stomach and both accused gave a knife blow on the back of Santu @ Santosh. After sustaining injury he fell down there. He and Santu both were taken to Victoria Hospital in an auto by some persons. Narayan Choudhary (PW-10) was cross-examined at length. When he tried to rescue that boy, Satish gave a knife blow on his stomach and both accused gave a knife blow on the back of Santu @ Santosh. After sustaining injury he fell down there. He and Santu both were taken to Victoria Hospital in an auto by some persons. Narayan Choudhary (PW-10) was cross-examined at length. He has clearly stated that accused persons were beating Balram, who is his neighbor. In his cross-examination, omission regarding the fact that “he was standing near handcart at Cherital Dharam Kanta and Santu was also with him and that time both accused were beating a little boy and when he tried to rescue that little boy, accused persons gave knife blow on his stomach” was put to him and he was confronted with Ex.D-3 police statement. The witness submitted that he had stated to the Police about the aforementioned and he is not aware as to why this has not been mentioned in his statement. SHO K. S. Bhati (PW-7), investigating officer stated that Narayan Choudhary (PW-10) had not stated above in his Ex.D-3 police statement. The aforesaid omission does not find place in his police statement (Ex.D-3) but same being not a material omission is not fatal for prosecution case. It is a settled position of law that omissions and discrepancies existing in prosecution case should not affect the case so long it does not materially affect the case. As far as omissions surfaced in the evidence of Narayan Choudhary (PW-10) is concerned, that does not materially affect the truthfulness of the evidence of prosecution witness Narayan Choudhary (PW-10). Same has to be ignored as that does not affect the truthfulness of prosecution case. In the case of Alamgir and another vs. State (NCT Delhi), reported in AIR 2003 SC 282 , Hon’ble Apex Court has held that “otherwise creditworthy and reliable evidence of an eyewitness would not be rejected merely because of particular statement made by the witness before the Court does not find place in statement recorded under section 161 Criminal Procedure Code” Thus, for the aforesaid reasons arguments advanced by learned counsel for appellant in this regard are repelled. As far as the reliability of evidence of Narayan Choudhary (PW-10) is concerned, his evidence that appellant/accused had given knife blow in his stomach and in the back of Santu, is unrebutted. As far as the reliability of evidence of Narayan Choudhary (PW-10) is concerned, his evidence that appellant/accused had given knife blow in his stomach and in the back of Santu, is unrebutted. He has been firm and consistent in his cross examination. Thus, he has stood with his evidence. 10. Ballu @ Balram (PW-3) has deposed that he knew injured Narayan and Santu and both the accused persons. One year ago when he and Narayan were standing at a little distance to the shop of Vijay Tent House near Punjab Colony. Papu Gupta had some altercation with Narayan. After some time when they were standing near Biloran Pan Shop, accused Gudda @ Satish who is the brother of Pappu Gupta came and took out knife from his pocket and gave a knife blow on the stomach of Narayan and also gave a knife blow on the back of Santu @ Santosh. Being afraid of incident, he fled away from the spot. Injury caused to Narayan Choudhary was severe in nature. Santu @ Santosh had also sustained injury. In his cross-examination, Ballu @ Balram has stated that he was standing in back side. He further stated that Narayan had sustained knife injury and was lying there. Santu was also there. As far as the truthfulness of evidence of Ballu @ Balram (PW-3) is concerned, his evidence that knife blows were given in the stomach of Narayan and in the back of Santu @ Santosh by accused Satish Kumar @ Gudda has remained unrebutted in his cross-examination. Thus, the evidence of Narayan Choudhary (PW-10) finds full corroboration from the evidence of eyewitness Ballu @ Balram (PW-3) who was present on the spot. 11. Narayan Choudhary (PW-10) and Ballu @ Balram (PW-3) have been firm and consistent in their evidence that it was appellant/accused Satish Kumar @ Gudda who had inflicted knife injuries in the stomach of Narayan Choudhary and in the back of Santo @ Santosh. 12. Learned counsel for the appellant argued that Dehati Nalishi (Ex.P-1) was lodged by Santu @ Santosh but same has not been proved by Santosh, as prosecution has failed to examine him, thus, learned trial Court has committed error in convicting the appellant, on the basis of Dehati Nalishi and F.I.R. not proved by its maker for causing simple hurt to Santu @ Santosh by placing reliance on the evidence of other prosecution witnesses. 13. 13. In this case, as far as Dehati Nalishi (Ex.P-1) and F.I.R. (Ex.P-4) is concerned, that has been duly proved by its scribe ASI K. G. Goswami (PW-1) who had clearly deposed that, he had recorded Dehati Nalishi as per the narration given by Santu @ Santosh and he had obtained the thumb impression of Santu @ Santosh after reading over the Dehati Nalishi to him. The aforesaid evidence of ASI K. G. Goswami (PW-1) has not been challenged in cross-examination. Thus, the Dehati Nalishi (Ex.P-1) and F.I.R. (Ex.P-4) remains unchallenged. 14. In this case, it is undisputed that injured witness Santu @ Santosh could not be examined by the prosecution. In this regard, in para 12 of the impugned judgment, learned trial Court has mentioned that prosecution could not examine injured Santu @ Santosh as after some time of sustaining the injury, he became mentally ill. Same is also evident from the trial Court order-sheet dated 20-5-1996. It is pertinent to note that summon and warrants were issued to him but the same were returned unserved with police report that he has become mentally ill, due to which he is not able to give his testimony. Thus, it is apparent that prosecution could not produce witness Santu @ Santosh in evidence for the reasons assigned in order-sheet dated 20-5-1996 and in para 12 of the impugned judgment. In such circumstances, where injured became incapable of tendering testimony the non-examination of the injured Santu @ Santosh is not fatal to the case of the prosecution. 15. In the case of Krishna Mochi vs. State of Bihar, reported in (2002) 6 SCC 81 , Hon’ble Apex Court has held that “even if the First Information Report is not proved, it would not be a ground for acquittal, but the case would depend upon the evidence lead by the prosecution. Therefore, non-examination of informant cannot in any manner affect the prosecution case”. 16. In this case Munna Patel (PW-2), Ram Kumar @ Biloran (PW-4) and Lala Babulal Choudhary (PW-6) who have been declared hostile, have not supported the prosecution case in toto. 17. As far as the evidence of injured Narayan Choudhary (PW-10) is concerned that find corroboration not only from the evidence of eyewitness Ballu @ Balram (PW-3) but also from the medical evidence and promptly lodged F.I.R. (Ex.P-3). 18. Dr. 17. As far as the evidence of injured Narayan Choudhary (PW-10) is concerned that find corroboration not only from the evidence of eyewitness Ballu @ Balram (PW-3) but also from the medical evidence and promptly lodged F.I.R. (Ex.P-3). 18. Dr. H. N. Mishra (PW-8) in his evidence has deposed that on 12-07-1994 at around 01:55 p.m. he had examined Santu @ Santosh, aged 26 years, and had found following injuries on his persons : (i) Stab wound on right side of lumber region 1” x 1/2” muscle deep caused by hard and sharp object. Patient was admitted in surgery department. Injury was caused within six hours of examination and his MLC report is “Ex.P-2A”. 19. Dr. H. N. Mishra (PW-8) further deposed that on the same day at about 01:35 p.m. he examined Narayan Choudhary s/o Mahavir Choudhary aged 25 years, R/o Damoh Naka Pratap Dharamkanta and found following injuries on his person. Patient was semi conscious. (i) Stab wound on the right side of abdomen 1½” x 1” peritonitis and intestine were protruding. 20. Injury was caused by hard and sharp object. General condition of the patient was serious. He was vomiting blood. Injury was caused within six hours of his examination. Injury was grievous in nature. He was referred to Medical College, Jabalpur for further treatment. MLC report is Ex.P-3A. 21. Dr. Vaishali Wahi (PW-5) has deposed that on 12-07-1994 she was posted as RSO in Medical College, Jabalpur. That day she had examined Narayan Choudhary S/o Mahavir Choudhary admitted at bed No. 3, Ward No. 12 and in examination she had found following injuries on his person : (i) Penetrative stab wound 2.5 c.m. x 0.05c.m. in right iliac fossa, packed with gauze. Injury was caused by sharp instrument and was dangerous to life. She has proved the MLC report Ex.P-7. 22. In the present case, evidence of injured Narayan Choudhary (PW-10) stand corroborated with the evidence of eyewitness Ballu @ Balram (PW-3), medical witnesses Dr. H. N. Mishra (PW-8) and Dr. Vaishali Wahi (PW-5) and promptly lodged Dehati Nalishi (Ex.P-1) and F.I.R. (Ex.P-4) and the evidence of ASI K.G.Goswami (PW-1). 23. In this case, assailant was known to the complainant as he had met him a day before incident. H. N. Mishra (PW-8) and Dr. Vaishali Wahi (PW-5) and promptly lodged Dehati Nalishi (Ex.P-1) and F.I.R. (Ex.P-4) and the evidence of ASI K.G.Goswami (PW-1). 23. In this case, assailant was known to the complainant as he had met him a day before incident. Hence, so far as the identity of assailant is concerned, there can be no doubt that the complainant and Ballu @ Balram (PW-3) who is also well acquainted with the assailant have duly identified him and a named Dehati Nalishi (Ex. P-1) was lodged against them by injured Santu @ Santosh. 24. Mere non-examination of injured witness Santu @ Santosh would not create a dent in the prosecution case, if in the background of the facts and circumstances, it is found that witness, due to some reason was not able to depose before the Court. The Court is required to assess the trustworthiness of the other prosecution witnesses adduced and available on record and if the Court find the evidence of other prosecution witnesses adduced worthy of being reliable, then their testimony can be accepted and acted and it cannot be held that prosecution case is suffering from a deficiency because non-examination of material witness due to his mental health cannot be a mathematical formula for discarding the weight of the testimony of other injured witness and eye witness available on record. 25. Learned counsel for the appellant has submitted that the appellant/accused have caused only one injury in the stomach of Narayan Choudhary (PW-10), therefore, learned trial Court was not justified to convict the appellant/accused for commission of offence under section 307 of Indian Penal Code. In this regard, it is to be noted that the question with regard to the nature of offence has to be determined on the facts and in the circumstances of each case, if an injury is on the vital part of body and has been caused by deadly weapon like knife in the stomach in which peritonitis and intestine have protruded and both the Doctors who examined the injured have described the injury dangerous to life, accused cannot be held guilty for causing a simple injury. In the case in hand, appellant has caused injury by means of knife in the abdomen of Narayan Choudhary (PW-10), though a single fatal blow of the description noted in the medical evidence. In the case in hand, appellant has caused injury by means of knife in the abdomen of Narayan Choudhary (PW-10), though a single fatal blow of the description noted in the medical evidence. These facts clearly establish that the appellant had the intention to kill the injured and it can safely be attributed to the knowledge of appellant that the knife blow given by him was so imminently dangerous that it must in all probability cause death or such bodily injury dangerous to life. Therefore, the arguments of learned counsel for the appellant that injury caused to Narayan Choudhary to be taken as simple injury is not worth acceptance. 26. Next question arises here is whether the injury cased to injured was sufficient for death or not. In section 307 of Indian Penal Code the term “hurt” has been used which has been explained in section 319 of Indian Penal Code and not “grievous hurt” which has been explained in section 320 of Indian Penal Code. If a person causes hurt with the intention or knowledge that he may cause death, it would attract section 307 of Indian Penal Code. In the case in hand, the accused has acted with the intention or knowledge that his action might caused death and hurt is caused then the provisions of section 307 of Indian Penal Code would be applicable. For an offence under section 307 of Indian Penal Code merely causing hurt is sufficient. 27. Hon’ble Apex Court in Jageram vs. State of Haryana, (2015) 11 SCC 366 held as under : “12. For the purpose of conviction under section 307 of Indian Penal Code, prosecution has to establish (i) intention to commit murder and (ii) the act done by the accused. The burden is on the prosecution that 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 of Indian Penal Code, 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 of Indian Penal Code, 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 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.” 28. Hon’ble Apex Court in the case of State of Madhya Pradesh vs. Kanha @ Omprakash, AIR 2019 SC 713 has held as under : “The above judgment of this Court led us to the conclusion that proof of grievous or life threatening hurt is not a sine qua non for the offence under section 307 of the Panel 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”. 29. On the basis of above discussion, it can be said that whether there was intention to kill or knowledge that death will be caused is a question of fact and would depend on the facts of a given case. The injury inflicted by the accused was simple or minor will not by itself rule out application of section 307, Indian Penal Code. The determinative question is the intention or knowledge as the case may be and not the nature of the injuries. 30. Considering the entire prosecution story and the evidence of injured prosecution witnesses, it is apparent that deadly weapon knife has been used, there was a stab injury on the stomach of Narayan Choudhary (PW-10) and on the back of Santu @ Santosh. Injury on the stomach can be said to be on the vital part of the body. Hence, I am of the view that learned trial Court has rightly held that appellant has committed offence under section 307 and 324 of Indian Penal Code. Injury on the stomach can be said to be on the vital part of the body. Hence, I am of the view that learned trial Court has rightly held that appellant has committed offence under section 307 and 324 of Indian Penal Code. Thus, the conviction of appellant under section 307 and 324 of Indian Penal Code by learned trial Court is confirmed. 31. Learned counsel for the appellant states that the sentence awarded to the appellant is disproportionate and prays that it may be reduced to 05 years. 32. I find that injury caused to the injured Narayan Choudhary was on vital part of body and was dangerous to life, therefore, considering the weapon used, nature of injury, cased on the vital part of body. I am of the view that it is a case in which sentence awarded to the appellant cannot said to be disproportionate. 33. In view of the above and for the reasons stated herein above, the present appeal fails and deserves to be dismissed and is accordingly, dismissed.