JUDGMENT : Joymalya Bagchi, J. 1. Appeal is directed against the judgment and order dated 11.09.2019 passed by learned District & Sessions Judge, Darjeeling in Sessions Case No. 71 of 2014 convicting the appellant for commission of offence punishable under Sections 326/307 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for eight years and to pay fine of Rs. 5,000/-, in default, to suffer rigorous imprisonment for a period of six months for the offence punishable under Section 307 of the Indian Penal Code. 2. Prosecution case as alleged against the appellant is to the effect that on 23.05.2014 at 8.30 PM appellant had attacked Ragen Gurong with a knife at the samosa shop of Dipesh Subba (PW 4). As a result, victim suffered injuries and was hospitalised for 12 days. Written complaint was lodged by Smt. Bishnu Gurung (PW 3), mother of the victim resulting in registration of Jorebunglow P.S. Case No. 76 of 2014 dated 24.06.2014 under Sections 326/307/308 of the Indian Penal Code. 3. During investigation, weapon of offence i.e. knife was seized from the place of occurrence. 4. In conclusion of investigation, charge sheet was filed and charges were framed under Sections 326/307 of the Indian Penal Code. 5. In the course of trial, prosecution examined twelve (12) witnesses and exhibited a number of documents. Defence of the appellant was one of innocence and false implication. 6. In conclusion of trial, trial Judge by the impugned judgment and order dated 11.09.2014 convicted and sentenced the appellant, as aforesaid. 7. PW 1, Reshma Gurung is the sister of the victim, Ragen Gurong. She stated on the day of occurrence victim had gone to the shop of Dipesh Subba which is situated below their house. At that time Dhiren assaulted her brother with a knife in the abdomen. Her brother was removed to hospital where he remained for 11 days. PW 1 admitted that she was a reported witness. 8. PW 2, Ragen Gurong is the victim. He stated on the day of occurrence, he had gone to the shop of Dipesh Subba. He found Dhiren had purchased samosa but had not paid the money. There was an altercation going on. He intervened. Thereupon Dhiren struck with a knife in the abdomen. He was treated at District Hospital, Darjeeling. He made statement before police. He stated on the day of occurrence, he had gone to the shop of Dipesh Subba. He found Dhiren had purchased samosa but had not paid the money. There was an altercation going on. He intervened. Thereupon Dhiren struck with a knife in the abdomen. He was treated at District Hospital, Darjeeling. He made statement before police. During cross-examination, he clarified that he had gone to the shop between 8:30/9.00 p.m. and not 8:00 a.m., as incorrectly stated in his chief. 9. PW 3, Smt. Bishnu Gurung is the mother of the victim. She lodged written complaint which was treated as FIR. PW 9 scribed the FIR. 10. PW 4, Dipesh Subba is the shop owner. He stated he had opened the shop after 10/15 days. At that time appellant came to the shop and demanded chops. He stated it would take time to prepare chops. PW 2 had also come to the shop. Appellant and PW 2 were inebriated. When he was washing dishes, he heard a loud cry and saw PW 2 had sustained injuries. Victim was taken to hospital. Police came to the shop and seized the knife. He put his signature in the seizure list. 11. PW 5, Bishan Thapa is the driver who took the victim to hospital. First he was taken to Sonada Primary Health Centre and thereafter to District Hospital, Darjeeling. PW 7, Nilkesh Rai also accompanied the victim to hospital. 12. PW 6, Dr. P. Baidhya treated the victim at Sadar Hospital, Darjeeling. He found the following injuries:- i. 1½” long deep stab injury at the left ilice fossa; ii. Momentum coming from out of the wound; iii. No active bleeding found. Summary of injury – stab injury of abdomen caused multiple perforation of small gut and multiple cut mesenteroi was found. There was profuse bleeding in peretonial cavity. He opined that injury was grievous in nature. 13. PW 8, Dr. P. Wangdi treated the victim at Sonada PHC. 14. PW 9, Sanjiv Chettri received written complaint which was treated as FIR. 15. PW 10, SI Bhushan Chettri is the investigating officer. 16. Mr. Sarkar for the appellant argues the manner and circumstances in which the victim suffered injury has not been proved and seizure of knife is doubtful. Prosecution has withheld an independent witness, namely, Amit who was at the spot. Wearing apparels had not been exhibited. 15. PW 10, SI Bhushan Chettri is the investigating officer. 16. Mr. Sarkar for the appellant argues the manner and circumstances in which the victim suffered injury has not been proved and seizure of knife is doubtful. Prosecution has withheld an independent witness, namely, Amit who was at the spot. Wearing apparels had not been exhibited. Hence, he prays for acquittal. 17. Learned lawyer for the State submits evidence of the victim (PW 2) is corroborated by medical witness and other witnesses. Prosecution case has been proved beyond doubt. 18. PW 2 is the victim and the star witness. He stated he had gone to the shop of the appellant. He found appellant was in the shop and had not paid money for purchasing samosa. When he intervened, appellant stabbed him in the abdomen with a knife. 19. His version is corroborated by the shop owner (PW 4). He contended on the evening of the fateful day, he had opened the shop after 10/15 days. Appellant came and demanded chops. He stated that it would take time to prepare chops. At that time, the victim i.e. PW 2 also came to the shop. Both were intoxicated. Suddenly he heard a cry and found victim had been stabbed in the stomach. Soon thereafter, sister of the victim (PW 1), his mother (PW 3) and neighbour (PW 7) came to the spot. Victim was shifted in a vehicle driven by PW 5 to hospital. These witnesses have corroborated the manner and circumstances in which the victim suffered stab injury at the hand of the appellant. 20. In this backdrop, non-examination of one Amit who is said to have been present in the shop does not affect the unfolding of the prosecution case. 21. Medical evidence on record also supports the ocular version of injured witness (PW 2). PW 8 treated the victim at Sonada PHC. He stated victim had been brought to the Primary Health Centre with a history of stab injury in the lower abdomen. He was referred to Sadar Hospital, Darjeeling for better treatment. PW 6 examined the victim at Sadar Hospital, Darjeeling. He found stab injury in the abdomen. He proved the injury report (Exhibit 4). 22. He stated victim had been brought to the Primary Health Centre with a history of stab injury in the lower abdomen. He was referred to Sadar Hospital, Darjeeling for better treatment. PW 6 examined the victim at Sadar Hospital, Darjeeling. He found stab injury in the abdomen. He proved the injury report (Exhibit 4). 22. In addition to the medical evidence, weapon of offence i.e. knife was also recovered from the shop of PW 4 corroborating the prosecution case that the victim was stabbed by appellant with a knife. 23. Moreover, in view of convincing ocular evidence corroborated by medical evidence, non-production of wearing apparels of the victim is minor remissness which would not affect the credibility of the prosecution case. 24. In light of the aforesaid discussion, I am of the opinion prosecution has been able to prove that appellant had stabbed the victim with a knife causing grievous injury. 25. Evidence on record shows that the incident occurred in the course of a quarrel. Both appellant and victim were inebriated. Though the blow was struck on a vital part of the body, appellant did not repeat the assault. These circumstances persuade me to hold that the prosecution has not been able to prove the intention of the appellant to commit murder. 26. Accordingly, I convert the conviction of the appellant from section 307 IPC to 326 IPC. 27. In light of the fact that conviction of the appellant is converted to section 326 IPC and as he does not have prior criminal antecedent, I modify the sentence imposed on the appellant and direct that the appellant shall suffer rigorous imprisonment for five years and pay a fine of Rs. 5,000/-, in default, to suffer rigorous imprisonment for six month more for the offence under section 326 IPC. 28. Bail bonds of the appellant are cancelled. He is directed to surrender forthwith and serve out the remainder of his sentence in accordance with law. In the event, he fails to do so, the trial Court shall issue appropriate processes for his apprehension and execution of the sentence. 29. With the aforesaid modification with regard to conviction and sentence, the appeal is disposed of. 30. Period of detention suffered by the appellant during investigation, enquiry and trial shall be set off against the substantive sentence imposed upon him in terms of Section 428 of the Code of Criminal Procedure. 31. 29. With the aforesaid modification with regard to conviction and sentence, the appeal is disposed of. 30. Period of detention suffered by the appellant during investigation, enquiry and trial shall be set off against the substantive sentence imposed upon him in terms of Section 428 of the Code of Criminal Procedure. 31. Let a copy of this judgment along with the lower court records be forthwith sent down to the trial Court at once. Apurba Sinha Ray, J.- I agree.