JUDGMENT : 1. In this criminal revision application, challenge is to the judgment and order dated 03.08.2022 passed by the learned Additional Sessions Judge, Nagpur, whereby the learned Additional Sessions Judge dismissed the appeal filed by the applicant/accused against his conviction and sentence awarded by learned Ad-hoc Assistant Sessions Judge, Nagpur for the offence punishable under Section 307 of the Indian Penal Code. 2. The facts giving rise to this revision application are as follows:- The incident in question occurred on 06.03.2011 at about 6.00 p.m. Nadim Ahmad (PW-1) injured is the informant. It is the case of the prosecution that when informant (PW-1) on 06.03.2011 at about 6.00 p.m. was washing his hands and face in front of his house, the accused who is resident of the same locality and known to the informant, came to his house and made a demand of Rs.100/- for consuming liquor. The informant did not have money and therefore, as he could not pay. He refused to pay the money. The accused got annoyed. The accused abused the informant. The accused came from behind the informant and inflicted a blow with sharp razor (Vastara) on the throat of the informant. The informant sustained bleeding injury. The accused further inflicted a blow with the weapon on his waist. After seeing the incident, people gathered on the spot. They apprehended the accused and assaulted him. The informant thereafter went to the police station and reported the matter to the police. The police referred the informant to Government Hospital for medical examination. The informant was examined by Dr. Suryakant Lodhe, Medical Officer (PW-10). On the basis of the report, crime bearing No.53/2011 was registered against the accused for an offence punishable under Section 307 of the I.P.C. The accused was immediately arrested. The weapon was recovered from his custody. The Investigating Officer after completion of the investigation filed the charge sheet against the accused. 3. The prosecution examined 12 witnesses to bring home the guilt against the accused. Learned Ad-hoc Assistant Sessions Judge on consideration of the evidence held the accused guilty under Section 307 of the IPC and sentenced him to suffer the rigorous imprisonment for seven years and to pay a fine of Rs.1,000/- and in default of payment of fine to suffer further rigorous imprisonment for six months. The accused preferred appeal in the Sessions Court. The accused preferred appeal in the Sessions Court. Learned Additional Sessions Judge on consideration of the evidence confirmed the order of conviction and sentence passed by the learned Ad-hoc Assistant Sessions Judge and dismissed the appeal. The applicant/accused therefore, has, come before this Court in revision. 4. I have heard Shri V. Mate, learned Advocate for the applicant/accused and Shri Amit Chutke, learned APP for the respondent/ State. Perused the record and proceedings. 5. Learned Advocate for the accused submitted that there are major inconsistencies in the evidence of prosecution witnesses and therefore, the evidence of the witnesses about the incident is unbelievable. Learned Advocate pointed out from the evidence of informant that at the time of lodging of report, he had stated that weapon used was knife. Learned Advocate further pointed out that weapon produced in the Court is the razor (Vastara). Learned Advocate submitted that this is a major contradiction in his evidence. Learned Advocate further submitted that the other witnesses are the interested witnesses and therefore, the reliance can not be placed on their evidence. 6. Learned Advocate for the accused without prejudice to the above submitted that evidence on record and particularly the evidence of the medical officer even if accepted as it is, the offence made out by the prosecution would be under Section 324 of the I.P.C. Learned Advocate submitted that medical officer (PW-10) has categorically stated that the injury on the throat was a simple injury. Learned Advocate further pointed out that for the treatment of the said injury the informant was not even admitted in the hospital. Learned Advocate submitted that oral and documentary evidence adduced by the prosecution as well as medical evidence is not sufficient to prove that the accused intended to commit the murder of the informant. Learned Advocate pointed out that as per the evidence of the prosecution witnesses at the time of the incident, he had consumed the liquor. Learned Advocate further submitted that the assault was not premeditated. Learned Advocate pointed out that the accused has undergone substantial period of sentence. Learned Advocate submitted that if the Court is not inclined to set aside the judgment on merits then the sentence already undergone by the accused may be awarded. 7. Learned Advocate further submitted that the assault was not premeditated. Learned Advocate pointed out that the accused has undergone substantial period of sentence. Learned Advocate submitted that if the Court is not inclined to set aside the judgment on merits then the sentence already undergone by the accused may be awarded. 7. Learned Advocate for the accused submitted that the entire trial against the accused was vitiated because the learned Ad-hoc Assistant Sessions Judge was not empowered to try the cases for the offences with an imprisonment for more than 10 years. Learned Advocate submitted that in view of Section 28 of the Code of Criminal Procedure the Assistant Sessions Judge is empowered to impose punishment not exceeding 10 years. Learned Advocate submitted that the sentence provided under Section 307 of the IPC for attempting to murder in case of injury to the victim shall be imprisonment for life or imprisonment for 10 years. Learned Advocate in order to substantiate his submission relied upon the decision of Division Bench of this Court in the case of Prabhakar @ Babu Laxman Pawar Vs. State of Maharashtra and another reported in 2013 (1) MH.L.J. (Cri) 411 and the decision of Coordinate Bench of this Court in the case of Sagarbai W/o. Chokhaji Bansode Vs. State of Mah. & Anr. reported in 2018 SCC Online Bom. 3403. The Division Bench in the case of Prabhakar (supra) has held that in cases where the sentence provided is more than 10 years or which has to be awarded is more than 10 years, the Sessions Judge is not authorized to assign such cases to Assistant Sessions Judge in view of Section 28 of the Criminal Procedure Code, which is a substantive provision in the Criminal Procedure Code. It is held that as per Section 28 the Assistant Sessions Judge would not be empowered to try the cases where the sentence above 10 years can be awarded. 8. Learned APP submitted that the contradiction as sought to be relied upon from the evidence of Nadim Ahmad (PW-1) is not vital because the accused inflicted the blow from behind and therefore, the informant could not see the actual weapon. Learned APP submitted that the informant has stated that accused inflicted a blow on his throat with a knife, a sharp weapon. Learned APP submitted that the informant has stated that accused inflicted a blow on his throat with a knife, a sharp weapon. Learned APP pointed out that immediately after sustaining the injury there was bleeding and therefore, he was carried first to the police station and from police station to the hospital. Learned APP submitted that evidence of the eye witnesses who had seen the assault stated that the weapon used by the accused for inflicting the blow was razor (Vastra). Learned APP submitted that evidence of the informant has been corroborated by the evidence of the medical officer. Learned APP submitted that therefore, the conviction of the accused is based on the proper appreciation of evidence and it does not warrant interference. As far as the quantum of sentence is concerned, learned APP submitted that intention of the accused has to be gathered from the facts and circumstances of each and every case. Learned APP submitted that in this case, the razor was used by the accused for inflicting a blow on the throat which is vital part of the body. 9. As far as the powers of the Assistant Sessions Judge is concerned, learned APP submitted that the submissions advanced by the learned Advocate for the accused have been supported by the judgments of this Court. Learned APP submitted that learned Sessions Judge should not have assigned the case to the learned Ad-hoc Assistant Sessions Judge. Learned APP submitted that however, on the ground of this irregularity the entire conviction and sentence cannot be quashed and set aside. Learned APP submitted that accused has already undergone a substantial period of sentence and therefore, remitting the matter back for de novo trial would not serve any purpose. 10. I have perused the record and proceedings. Nadim Ahmad (PW-1) has narrated the incident in great detail. He has stated that he was washing his hands and face in front of his house. The accused came there in a drunken condition and demanded Rs.100/- for consuming liquor. He has stated that he had no money and therefore, he refused to pay the same. He has stated that the accused thereafter came from his behind and inflicted a blow with a razor (Vastera) on his throat. He has further stated that after this the accused inflicted the blow with same weapon on his waist. He sustained bleeding injuries. He has stated that he had no money and therefore, he refused to pay the same. He has stated that the accused thereafter came from his behind and inflicted a blow with a razor (Vastera) on his throat. He has further stated that after this the accused inflicted the blow with same weapon on his waist. He sustained bleeding injuries. His clothes were smeared with blood. His parents took him to the police station. He was referred for medical examination. It is to be noted that in the report lodged by the informant it was stated that accused inflicted the blow with the knife. In his evidence he has stated that the accused inflicted a blow with a razor (Vastara). It is to be noted that this improvement viz-a-viz the weapon was put to Nadim Ahmad (PW-1) in his cross examination. He has stated in his cross examination that at the time of the report he had stated to the police that accused assaulted him by means of razor (Vastara). He could not assign any reason for absence of this fact in his report. It is to be noted that this omission amounting to contradiction was therefore, required to be proved. Nadim Ahmad (PW-1) was confronted with the same. Nadim Ahmad (PW-1) stated that at the time of lodging of the report, he had stated to the police that the accused assaulted him by razor. It is to be noted that this omission amounting to contradiction has not been proved. The Investigating Officer (PW-12) was not confronted with this omission. This omission amounting to contradiction has therefore, not been properly proved. The perusal of the evidence of other witnesses who had seen the assault would show that they have categorically stated that the accused inflicted the blows with razor initially on the throat and later on, on the waist of the informant. It has further been proved that sharp weapon was used for causing injury. Medical Officer (PW-10) has categorically deposed that injury was caused with sharp weapon. Therefore, in my view, on the basis of this omission, which has otherwise been properly explained, the evidence of Nadim Ahmad (PW-1) about the occurrence of the incident and the involvement of the accused in the incident cannot be discarded. 11. It would be necessary to consider the evidence of the other witnesses who have supported the case of prosecution. Therefore, in my view, on the basis of this omission, which has otherwise been properly explained, the evidence of Nadim Ahmad (PW-1) about the occurrence of the incident and the involvement of the accused in the incident cannot be discarded. 11. It would be necessary to consider the evidence of the other witnesses who have supported the case of prosecution. Perusal of their evidence would show that they are not chance witnesses. Kallu Sheikh (PW-3) is the father of the informant. Meena Sheikh (PW-5) is the mother of the informant. The informant was residing with the PW-3 and PW-5. Their presence on the spot was therefore, natural. In their evidence they have narrated the incident consistent with the one narrated by the informant. They have categorically stated that the accused inflicted the blows with the razor on the throat as well as on the waist of the informant. Kallu Sheikh (PW-3) has stated that after the incident they took the informant to the police station. The informant lodged the report. The informant was referred to the Government Hospital for medical examination. Their evidence has not been shaken in the cross examination. 12. Dwarkabai Chauhan (PW-6) is the neighbor of the informant. She has stated that she knows the accused as well as informant. She has stated that the accused inflicted the first blow on the throat of the informant with razor. She has stated that second blow was inflicted on his back. Vandana (PW-7) is the one more neighbor who had witnessed the incident. The evidence of Dwarkabai Chauhan (PW-6) and Vandana (PW-7) on all material aspects is consistent with the evidence of the informant. Their evidence is consistent on the point of the cause behind the incident, the nature of the weapon used by the accused and the injuries sustained on throat as well as on waist by the informant. On perusal of their evidence, it cannot be said that the account of incident placed on record by them is imaginary or false. On the basis of evidence of informant and the corroborating evidence of the other witnesses, the incident of assault with razor on the informant, the injuries sustained by the informant and the involvement of the accused in the assault has been proved. I am therefore, satisfied that the courts below have not committed any mistake or error on this count. 13. I am therefore, satisfied that the courts below have not committed any mistake or error on this count. 13. The next important aspect is with regard to the offence proved on the basis of the evidence of the above witnesses as well as on the basis of the evidence of medical officer. Dr. Suryakant Ludhe (PW-10) had examined the informant on 06.03.2011. Similarly, he had also examined the weapon of the offence at the request of the Investigating Officer. He has stated that on 06.03.2011 he was attached to Government Medical College, Nagpur as Medical Officer. On that day Police Constable Prashant Bakkal No.88 attached to Police Station Ganeshpeth had brought injured Mohammad Nadim Mohammad Kallu Sheikh for medical examination. He has stated that he examined the injured. He has stated that on examination, he found following injuries:- 1. Incise wound, over supra sternal notch of 5 cm. x 0.5 cm. 2. Incise wound over back, dimension 11 cm x .5 cm. 14. Medical Officer has categorically stated that both the injuries were simple injuries. He has stated that both injuries were caused by sharp object. He has stated that the injuries found by him on the person of the informant could be caused by the razor (Vastara). 15. The evidence of medical officer on material aspect corroborates the evidence of informant and other witnesses. There is no reason to discard and disbelieve the evidence of medical officer. The evidence is sufficient to prove the injuries sustained by the informant. 16. It is to be noted that for the purpose of deciding the issue of the actual offence made out on the basis of the evidence, perusal of his cross examination would be relevant. Medical officer has stated that injuries were simple injuries. In his evidence, he has not stated that injuries were sufficient in the ordinary course of nature to cause the death. In his cross examination, he has stated that in case of deep injury there is a chance of cutting of blood vessels of the part of the body where the injury was inflicted. He has categorically stated that injuries in this case, did not pose any danger to the life of the informant. He has further stated that such injuries could be caused by other sharp article other than the weapon examined by him. He has categorically stated that injuries in this case, did not pose any danger to the life of the informant. He has further stated that such injuries could be caused by other sharp article other than the weapon examined by him. He has further stated that injury No.1 could be possible due to fall on the sharp edge drum. It is to be noted that though the evidence of medical officer corroborates the evidence of the informant and other witnesses on this material aspect, in my view, the said evidence if properly appreciated would show that the injuries were simple. The injuries did not pose any danger to his life. Medical Officer has not stated that the injuries were not sufficient in the ordinary course of nature to cause the death of the informant. It is further pertinent to note that after examination of informant by Dr. Suryakant Lodhe (PW-10) he was not required to be admitted in the hospital for further treatment. The courts below have recorded the concurrent findings of fact that the offence proved against the accused was under Section 307 of the I.P.C. In my view, on this count the finding recorded by the courts below cannot be sustained. The courts below have not properly considered the evidence of medical officer to come to this conclusion. 17. It is to be noted that the intention or knowledge of the accused is the prime factor to conclude whether the offence made out is attempt to murder or any other offence. The intention or knowledge of the accused has to be ascertained on the basis of the evidence on record, the motive for the commission of crime, the weapon used in the crime, the nature of the injuries sustained if any, in the crime and the facts and circumstances in totality. It is true that the nature and extent of the injury is not the decisive factor while determining whether the accused had the intention to cause death or such bodily injury as is likely to cause death. Similarly, the knowledge cannot be attributed to the accused solely on the basis of the nature and extent of the injury. It is to be noted that for attracting Section 307 of the I.P.C. the actual causing of injury is not necessary. Similarly, the knowledge cannot be attributed to the accused solely on the basis of the nature and extent of the injury. It is to be noted that for attracting Section 307 of the I.P.C. the actual causing of injury is not necessary. In short Section 307 of the I.P.C. is not concerned with the consequences of the act per se In order to attract Section 307 the intention or knowledge is required to be proved. It is true that injury or the nature of the injury sustained by the victim would be one of the important factors to ascertain the requisite intention or knowledge. The Court is therefore, required to take into consideration various factors to consider the applicability of Section 307 of the I.P.C. and proof of the same. Those circumstances could be motive for commission of crime, nature of the incident, the weapon used in the crime, the force applied while inflicting the blows, the part of the body targeted for the assault and the nature and extent of the injuries would be some of the factors. In my view, in the back drop of the above determinative factors the Court has to consider the intention or knowledge of the accused. 18. In my view, in this case, in the backdrop of the evidence of the witnesses and the other determinative factors the offence made out would be under Section 324 of the I.P.C and not under Section 307 of the I.P.C. The injuries sustained by the informant were simple injuries. He was not even required to be admitted in the hospital. The prelude to the incident as stated by the informant indicates that the act done by the accused was not premeditated. He demanded Rs.100/- from him for consuming liquor. The accused got annoyed because the informant refused to pay the money. The accused was under the influence of liquor. He, therefore, inflicted blows with razor. It is true that throat is vital part of the body. However, in this case, the intention to commit the murder is completely lacking inasmuch as the accused did not apply the force while inflicting the blows and therefore, the injury caused was a simple injury. Medical Officer has stated that the injuries did not pose any danger to the life of the informant. The cause of the incident was very trifle. Medical Officer has stated that the injuries did not pose any danger to the life of the informant. The cause of the incident was very trifle. The injuries sustained by the informant were not grievous injuries. It is true that weapon of the offence by applying any standard will have to be held to be a dangerous weapon. In the facts and circumstances I conclude that act done by the accused was not with an intention to commit the murder of the informant. Similarly, on the basis of the material on record the requisite knowledge of likely death with such injuries could not be attributed to the accused. Therefore, in this case, the offence proved by the prosecution is under Section 324 of the I.P.C and not under Section 307 of the I.P.C. Therefore, on this aspect, I am of the view that interference is warranted in the order with regard to the conviction and sentence awarded by the courts below. 19. The next important point that needs to be addressed is with regard to the irregularity committed in this case. It is true that learned Ad-hoc Assistant Sessions Judge could not have tried the said case. It was assigned to him by the Sessions Judge. The Sessions Judge seems to have been oblivious of the provisions of the law as set out hereinabove. I have no hesitation to agree with the submissions of the learned Advocate that there was irregularity in the conduct of the proceeding by the learned Ad-hoc Assistant Sessions Judge. In the submission of the learned Advocate entire proceeding was vitiated. In this case, the prejudice on account of irregularity in the conduct of the trial as above needs to be addressed in the backdrop of the concurrent findings of the courts below with regard to the proof of the offence against the accused. It is not the case of the accused that he was denied right of fair trial on any count. It needs to be stated that even if it is found in any case that on account of some irregularity the accused has been prejudiced, the Court has to take care of the prejudice caused to the accused within the parameters of law and set it at rest. In the fact situation of the case before me the accused cannot be given a clean chit due to such irregularity. In the fact situation of the case before me the accused cannot be given a clean chit due to such irregularity. In such a case the accused can be made to face a trial before the competent Court by setting aside the orders passed by the Court without jurisdiction. In this case, therefore this Court will have two options. The first option would be to set aside the orders passed by the courts below and remit the matter back to the Sessions Judge for the purpose of de novo trial in accordance with law. The second option would be to proceed further and decide the matter keeping in mind the facts and circumstances on record. 20. In my view, the option of setting aside the order and remitting the matter to the Sessions Judge would not be in the interest of the accused. The accused as has been observed above is found guilty of the offence under Section 324 and not of the offence under Section 307 of the IPC. The accused has already undergone substantial period of sentence. In my view, therefore, in the facts situation even after noticing the above irregularity the decision of the matter on merits by this Court would be absolutely in the interest of the accused. If the matter is remitted back for de novo trial then the accused would be required to undergo the rigmarole of the trial for an offence punishable under Section 324 of the I.P.C. It will cause unimaginable hardships to the accused. The grievance of the accused in the fact situation can be appropriately dealt with by awarding the imprisonment which he has already undergone. In my view, such approach would take care of the aspect of prejudice put forth by the accused. Therefore, with the modification of substantive sentence the revision will have to be dismissed. 21. Accordingly, the judgment and order passed by the courts below convicting the accused for an offence under Section 307 of the IPC is set aside. The accused is convicted for an offence punishable under Section 324 of the IPC. He is awarded the sentence of imprisonment already undergone by him. The accused be released from jail forthwith if not required in any crime.