JUDGMENT : SANJAY KUMAR JAISWAL, J. 1. The present appeal arises out of the impugned judgment of conviction and order of sentence dated 18.11.2003 passed by the learned Sessions Judge, Raipur (C.G.) in S.T. No. 185/2003 whereby, the learned Sessions Judge, convicted the appellant and sentenced him as under: Conviction Sentence U/s 307 of IPC R.I. for 7 years and fine of Rs. 1000/- in default of payment of fine amount additional R.I. for 2 months. 2. The prosecution story, in brief, is that on the date of the incident i.e. 18.03.2003, in the afternoon, the complainant-Rajendra Kumar @ Sanny Dhruv was going to take betel, at that time the accused/appellant made a quarrel with the complainant and assaulted on his back and hand with the help of knife with the intention to kill him on account of previous enmity. On the spot, police came and caught the appellant. The complainant was taken to the hospital from the spot. At the hospital, Rajendra Dhruv was examined by Dr. S. Bose and opined to send him to the surgery department. At Dr. Bheem Rao Ambedkar Hospital, Sub-Inspector/Ganesh Ram Sidar registered Dehati Nalsi and on the basis of that FIR was registered and the investigation was carried out. A knife has been seized from the appellant/accused. Plain and blood-stained soil has been collected from the spot. Shirt and paint having blood stains of the accused were seized from the accused. A spot map was prepared and the seized knife was sent for chemical examination, after examination of the knife Dr. S. Bose opined that the injury caused to Rajendra Dhruv may be occurred with the said knife. The complainant was admitted for treatment at Dr. Bheem Rao Ambedkar Hospital and on 29.03.2003 he was discharged from the said hospital. Evidence of the witnesses was recorded and seized articles were sent to the Forensic Science Laboratory for chemical examination. After completion of the investigation charge sheet was filed before the Judicial Magistrate First Class, Raipur. 3. So as to hold the accused/appellant guilty, the prosecution has examined as many as 7 witnesses. The statement of the accused/appellant was also recorded under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him and pleaded innocence and false implication in the case. The appellant has adduced two witnesses in his defence. 4. 3. So as to hold the accused/appellant guilty, the prosecution has examined as many as 7 witnesses. The statement of the accused/appellant was also recorded under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him and pleaded innocence and false implication in the case. The appellant has adduced two witnesses in his defence. 4. After hearing the parties, vide impugned judgment of conviction and order of sentence dated 18.11.2003, learned Sessions Judge has convicted and sentenced the accused/appellant as mentioned in Para-1 of this judgment. Hence, the present appeal. 5. Learned counsel for the appellant submits that the learned trial Court has erred in holding the appellant guilty for the offence punishable under Section 307 of IPC because the case is made out punishable under Section 324 of IPC or Section 308 of IPC. The lower Court has given excess punishment to the appellant. The findings of the trial Court are contrary to the settled law, the learned trial Court has failed to appreciate the evidence adduced by the complainant that he was in an intoxicated condition during the occurrence of the alleged incident. He also submits that the trial Court has failed to appreciate the version of the complainant as the injury had been caused to him from the back side and the complainant could not see who inflicted the injury on him. The judgment of conviction and sentence is perverse to the evidence recorded and deserves to be set aside, therefore, the appeal may be allowed. 6. Per contra, learned counsel appearing for the State, supporting the impugned judgment, opposed the arguments advanced on behalf of the appellant. 7. Heard learned counsel for the parties and perused the material on record including the impugned judgment. 8. The injured Rajendra Dhruv alias Sunny (PW-3) has stated in his court statement that he had sustained the injury when he was stabbed in the back by the appellant-Pintu, which had reached the lungs. While stopping the attack of the second knife, his hand also got injured. He caught hold of the appellant, and then the police and the passers-by also came there. He had told the police about being assaulted by the appellant, after which he fainted. The statement of Rajendra Dhruv alias Sunny has been confirmed by the Dehati Nalsi vide Ex.P-4 that he was stabbed by the appellant. 9. He caught hold of the appellant, and then the police and the passers-by also came there. He had told the police about being assaulted by the appellant, after which he fainted. The statement of Rajendra Dhruv alias Sunny has been confirmed by the Dehati Nalsi vide Ex.P-4 that he was stabbed by the appellant. 9. Apart from the injured, among the important witnesses of the incident, constable - Puran Singh Jadon (PW-6) present on duty, while confirming the statement of Rajendra Dhruv, said that after getting the information of the incident, he went to the spot and saw that the appellant was caught hold by injured. The appellant had a knife and razor in his hands. Injured Rajendra Dhruv had a knife injury in his back, then constable Rikhiram Verma (PW-7) present at another point also came there. The injured caught hold of the appellant and handed him over to Rikhiram Verma (PW-7). The injured Rajendra Dhruv was taken to the Medical College, Hospital, Raipur and Rikhiram Verma (PW-7) took the appellant to the police station. This witness has also stood firm and un-rebutted on his statement, whose statement corroborates the statement of injured Rajendra Dhruv that he was stabbed in the back by the appellant. 10. Constable - Rikhiram Verma (PW-7) stated in his court statement that he was on duty near the Peeli building, then on getting information about the quarrel went to the spot, where the appellant was caught hold by Rajendra Dhruv. The injured had a knife wound on his back. Blood was also coming out from the mouth. The injured said that he was stabbed by the appellant and then fainted. Then constable Puran Singh Jadon (PW-6) took him to the hospital and he himself caught the appellant and brought him to the police station, where the knife was seized. This witness has also stood firm and un-rebutted in his cross-examination. The mention of both these witnesses reaching the spot is also found in the Dehati Nalsi vide Ex.P-4. Therefore, no reason is found to disbelieve their statement. 11. Ram (PW-4), is the brother of injured - Rajendra Dhruv, who as per the prosecution case reached the spot later. He has also stated in his court statement that the appellant had assaulted his brother Rajendra Dhruv and the appellant caught hold there by Rajendra Dhruv. Therefore, no reason is found to disbelieve their statement. 11. Ram (PW-4), is the brother of injured - Rajendra Dhruv, who as per the prosecution case reached the spot later. He has also stated in his court statement that the appellant had assaulted his brother Rajendra Dhruv and the appellant caught hold there by Rajendra Dhruv. According to the cross-examination and the facts in his police statement, he is not an eyewitness of the incident. But his statement also corroborates the fact that on the spot his brother was injured - Rajendra Dhruv had held the appellant and the police had also reached. 12. As defence witnesses, Kishan Jagat (DW-1) and Shatruhan (DW-2) have stated that there was a quarrel between the appellant and Rajendra Dhruv, and no defence has been taken up during the cross-examination of the prosecution witnesses. Even in the trial under Section 313 Cr.P.C. no such incident has been narrated by the appellant/accused as stated by these defence witnesses. On this basis, no error is found in the distrust expressed by the trial court on those defence witnesses. 13. Assistant Sub-Inspector - Ganesh Ram Sidar (PW-5) as an Investigating Officer, along with other proceedings, has stated to seize the knife (Gupti) vide Ex.P-5, which has been examined by Dr. S. Bose (PW-1) and a report was given vide Ex.P-2. According to the report, the injury suffered by Rajendra Dhruv could have come from that Gupti (knife). Dr. S. Bose has also stated that the said Gupti was sealed and handed over to the constable for chemical test. But no chemical test report has been produced by the prosecution. According to the medical opinion, the injuries found on Rajendra Dhruv could have been caused by Gupti. Keeping this opinion in view, the statement of injured Rajendra Dhruv confirmed that the appellant had caused injury to him with the same Gupti. The statement of the Investigating Officer is also corroborated by the statement of the witnesses of the spot that the appellant was taken to the police station after being caught along with the knife/Gupti from the spot and the seizure was made from him. 14. The statement of the Investigating Officer is also corroborated by the statement of the witnesses of the spot that the appellant was taken to the police station after being caught along with the knife/Gupti from the spot and the seizure was made from him. 14. Thus, the court statements of injured Rajendra Dhruv (PW-3), constable - Puran Singh Jadon (PW-6), constable - Rikhiram Verma (PW-7) and Ram (PW-4) and Dehati Nalsi Ex.P-4, this fact has been proved that the injured Rajendra Dhruv was inflicted injury by stabbing him in the back with knife/Gupti. 15. During the course of the argument in the appeal to the fact of injury caused by the appellant, no specific objection has been raised by the counsel for the appellant. Rather, the main argument of the counsel for the appellant is that the only injury to the victim, Rajendra Dhruv, has been found in the back. In this case, the offence of attempt to murder under Section 307 of IPC is not made, but only the offence of causing simple hurt is made, which comes under Section 324 of the Indian Penal Code, or at the most, the offence of attempt to commit culpable homicide, Section 308 of IPC. In the instant case, the appellant has been in custody for about 04 months. Therefore, he may be punished to the extent of that period and may be released. 16. Considering the nature of the injury caused to Rajendra Dhruv, Dr. S. Bose (PW-1) has clarified in his evidence that the injured Rajendra Dhruv had a 3 x 1 cm wound on the outer left side of the backbone. There was a cut wound, the depth of which could be known only after the operation. The said injury was caused by a hard and sharp object within 6 hours of the examination. He sent the injured to the surgery department for examination and treatment and he gave his report vide Ex.P-1. 17. Dr. Smt. Shipra Sharma (PW-2) posted as Assistant Professor in the Department of Surgery at the Medical College, Raipur, stated that when the injured Rajendra Dhruv was brought, he performed surgery and treated the injury. His injury was caused by a sharp object, which was quite deep. That wound was deep till the pleura of the lungs, from which the lungs were drawing air. His injury was caused by a sharp object, which was quite deep. That wound was deep till the pleura of the lungs, from which the lungs were drawing air. The nature of the injury was serious, if not treated surgically, he would have died. 18. Thus, the wound may be one, but it is not only said to be serious but it is also said that if the surgery was not done, the victim would have died. 19. As an Investigating Officer, Assistant Sub-Inspector/Ganesh Ram Sidar (PW-5) prepared the seizure of the knife vide Ex.P-5, in which the total length of the knife/Gupti has been told as 13.1 inches. In it, the length of the fist is said to be 4 inches and on it about one inch of iron is tightened. In this way, the length of the knife/Gupti is shown to be about 8 inches. According to the medical evidence, the injury of that knife had reached the pleura of the lungs of the victim. This situation shows that the appellant had assaulted the injured Rajendra Dhruv with full force. Only then, did the knife reach the said depth and cause serious and life-threatening injury to the victim. According to the knife test report Ex.P-3, the blade portion of the knife is about 23 cm. It is also noteworthy that according to the statement of the injured Rajendra Dhruv, the appellant had also given a second blow to him. But he had caught hold of the appellant by stopping his hand. The statement of other witnesses also corroborates the fact that the victim was held by Rajendra Dhruv. In such a situation, it is clear that if the hand of the appellant had not been stopped by the victim, he would have assaulted the complainant even more, which naturally shows the intention of the appellant on the spot to kill the victim Rajendra Dhruv. In the aforesaid situation, keeping in view the complete evidence, no error is found in the conclusion of the trial Court that the appellant, in an attempt to kill the injured Rajendra Dhruv, caused fatal injury by attacking him with a knife/Gupti. 20. In the aforesaid situation, keeping in view the complete evidence, no error is found in the conclusion of the trial Court that the appellant, in an attempt to kill the injured Rajendra Dhruv, caused fatal injury by attacking him with a knife/Gupti. 20. On the basis of the above discussion, it is found that the conviction of the appellant - Pintu by the Trial Court under Section 307 of IPC for the attempt to murder the complainant-Rajendra Dhruv is based on clear and reliable evidence. Therefore, there is no need to interfere in any way with the conviction in question. 21. So far as the sentence of the appellant is concerned, it is clear that the incident took place about 20 years ago. The age of the appellant-Pintu was about 20 years at that time. Thus, at present, his age is about 40 years. He has been sentenced to rigorous imprisonment for 7 years for the offence under Section 307 of IPC. He remained in custody for about 4 months. The nature of the offence is serious. Based on this, some leniency in the sentence would be appropriate. However, it is not found appropriate to limit the entire jail sentence to the custody period. 22. Therefore, the appeal is partly allowed on the point of sentence while affirming the conviction. The sentence awarded to the appellant-Pintu for the offence under Section 307 of IPC is commuted from 7 years of rigorous imprisonment to 4 years of rigorous imprisonment. The fine amount is kept as it is. The custody period of the appellant during the trial and appeal shall be adjusted in the jail sentence inflicted upon him. The bail bonds of the appellant stand cancelled and he is directed to surrender before the trial Court without any delay to serve the remaining sentence. 23. In view of the above, the appeal is partly dismissed on the point of conviction and partly allowed on the question of sentence. 24. The record of the trial Court along with the copy of this judgment be sent immediately for necessary action and compliance.