ORDER : 1. Barun Singh, Kishore Kumar Singh and Sanjiv Kumar Singh @ Sanjiv Kumar have challenged the judgment dated 4th May 2012 passed in Sessions Trial No. 44 of 2002 by filing separate Criminal Appeals vide Criminal Appeal (DB) No. 904 of 2023, Criminal Appeal (DB) No. 905 of 2023 and Criminal Appeal (DB) No. 906 of 2023. 2. B.S. City P.S. Case No. 90 of 1999 was lodged against the appellants and unknown accused persons on the basis of the fardbeyan of Manoj Kumar which was recorded by the Inspector of Police of B.S. City Police Station on 20th March 1999 at about 02:00 hrs. at Bokaro General Hospital, Bokaro. In his fardbeyan, the informant who was injured in the occurrence has stated that at around 08:45 PM in the evening of 19th March 1999 his neighbours Barun Singh and Kishore Kumar Singh came to his house and he went with them to the nearby Teraha (a tri-junction of roads). He saw that Sanjiv Kumar Singh was waiting there carrying a sword with which Barun Singh attacked him. So he tried to save himself and ran towards his house, when Barun Singh fired a shot which missed him. According to the informant, the reason for the occurrence was that he had advised Barun Singh not to blow whistle in the neighbourhood. After the investigation, a chargesheet was laid against the above-named accused persons and a common charge was framed against them under sections 341, 323 and 307 of the Indian Penal Code. Barun Singh who is the appellant in Cr. Appeal (DB) No. 906 of 2023 has been further charged under sections 324 and 326 of the Indian Penal Code and under section 27 of the Arms Act. During the trial, the prosecution examined nine witnesses out of whom PW-1 Pravin Kumar and PW-4 Manoj Kumar who are real brothers have been projected as eyewitness. 3. As PW-3, Dr. Bishambhar Das who clinically examined PW-4 on 19th March 1999 at Bokaro General Hospital has observed three incised wounds on the person of PW-4. He had also advised X-ray for different parts of the body of PW-4. 4. 3. As PW-3, Dr. Bishambhar Das who clinically examined PW-4 on 19th March 1999 at Bokaro General Hospital has observed three incised wounds on the person of PW-4. He had also advised X-ray for different parts of the body of PW-4. 4. The appellants have set up a defence that the informant and others assaulted them and in the scuffle Barun Singh has suffered two injuries on his thumb and in this connection counter case vide B.S. City P.S. Case No. 91 of 1999 was lodged by the brother of Barun Singh. In his written report which was given to the officer-in-charge of B.S. City Police Station on 20th March 1999, he has alleged that at around 09:00 PM in the evening of 19th March 1999 his neighbour and others assaulted his brother Barun Singh. To support the defence that Barun Singh has suffered injuries at the hands of PW-4, Dr. Tripic Prasad Singh was examined as DW-1 who has admitted in the Court that he examined Barun Singh in the morning of 20th March 1999 around 08:30 AM at the Casualty ward of Bokaro General Hospital. As DW1, the doctor has deposed in the Court that he found one incised wound over right thumb with haematoma over right dorsum aspect, one lacerated wound over left thumb, one lacerated wound over left hand's second finger, abrasion over left forearm and another abrasion over right forearm of Barun Singh. He also advised X-ray of the right hand of Barun Singh. 5. The learned 1st Additional Sessions Judge, Bokaro accepted the testimony of PW-1 and PW-4 and has rendered his opinion that the date, time and place of occurrence are established, and presence of the accused persons at the time and place of occurrence are the admitted facts. PW-1 and PW-4 have been found reliable and truthful and the trial Judge has accepted their testimony as eyewitness-account of the occurrence. 6. The learned 1st Additional Sessions Judge, Bokaro has convicted the appellants in following manner: “25. On going through the material and evidence available on record and as per above discussion I find and hold that the prosecution has has succeeded to prove and establish the charges levelled against the accused persons beyond shadows of all reasonable doubt. 6. The learned 1st Additional Sessions Judge, Bokaro has convicted the appellants in following manner: “25. On going through the material and evidence available on record and as per above discussion I find and hold that the prosecution has has succeeded to prove and establish the charges levelled against the accused persons beyond shadows of all reasonable doubt. Hence accused Barun Singh is hereby convicted u/s 341, 323, 324, 326 & 307 of the I.P.C and u/s 27 of Arms Act and accused persons namely Sanjiv Kumar @ Sanjiv Kumar Singh and Kishore Kumar Singh are hereby convicted u/s 341, 323 and 307 read with section 34 of the I.P.C.......” 7. The appellants Sanjiv Kumar Singh, Barun Singh and Kishore Kumar Singh have been found guilty for committing the offence under sections 341, 323 and 307 read with section 34 of the Indian Penal Code. The appellant Barun Singh has further been found guilty for committing the offence under sections 324 and 326 of the Indian Penal Code and under section 27 of the Arms Act. 8. Heard Mr. B.M. Tripathi, the learned senior counsel who is appearing for the appellant Barun Singh in Cr. Appeal (DB) No. 906 of 2023, Mr. V.P. Singh, the learned senior counsel who is appearing for the appellant Kishore Kumar Singh in Cr. Appeal (DB) No. 905 of 2023 and Mr. Jitendra Shankar Singh, the learned counsel who is appearing for the appellant Sanjiv Kumar Singh in Cr. Appeal (DB) No. 904 of 2023. 9. The appellants have taken a specific defence that on account of animosity they were falsely implicated in the case. According to them, the reason for animosity was that in a criminal case lodged by brother of appellant Barun Kumar, PW-1 and PW-4 are accused in that case. 10. In Raju vs. State of Tamil Nadu, (2012) 12 SCC 701 the Hon’ble Supreme Court has observed that “a court should examine the evidence of a related and interested witness having an interest in seeing the accused punished and also having some enmity with the accused with greater care and caution than the evidence of a third party disinterested and unrelated witness.” A witness may be closely related to the victim or inimical to the accused but on that ground his testimony cannot be treated as tainted. There is no bar in law in examining an inimical, interested or related witness. There is no bar in law in examining an inimical, interested or related witness. In Masalti vs. State of U.P. AIR 1965 SC 202 the Hon'ble Supreme Court has cautioned that mechanical rejection of evidence of partisan or interested witnesses on the sole ground that it is partisan would invariably lead to failure of justice. In “Masalti” the Hon'ble Supreme Court has observed thus: “14.........There is no doubt that when a criminal court has to appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in weighing such evidence. Whether or not there are discrepancies in the evidence; whether or not evidence strikes the Court as genuine; whether or not the story disclosed by the evidence is probable, are all matters which must be taken into account. But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses..........The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard-and-fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.” 11. Mr. Zaid Ahmad, the learned counsel for the informant, has submitted that in the trial of Sessions Trial No. 44 of 2002 the appellants had fair opportunity to establish their defence which they have miserably failed to do. It is submitted that once the finding recorded by the Additional Sessions Judge that PW-1 and PW-4 are eyewitness is accepted on minor omission or inconsistency in the prosecution evidence the judgment rendered in Sessions Trial No. 44 of 2002 cannot be interfered by this Court. 12. No doubt every omission in the evidence of a witness is not material omission and minor contradictions, inconsistencies or improvements do not affect the core of the prosecution case. However, the omissions, inconsistencies and exaggerations by a witness in the Court which are intended to meet the prosecution case would affect the truthfulness and credibility of the witness. 13. In State of H.P. vs. Lekh Raj, (2000) 1 SCC 247 the Hon'ble Supreme Court has observed as under: “7.........Discrepancy has to be distinguished from contradiction. However, the omissions, inconsistencies and exaggerations by a witness in the Court which are intended to meet the prosecution case would affect the truthfulness and credibility of the witness. 13. In State of H.P. vs. Lekh Raj, (2000) 1 SCC 247 the Hon'ble Supreme Court has observed as under: “7.........Discrepancy has to be distinguished from contradiction. Whereas contradiction in the statement of the witness is fatal for the case, minor discrepancy or variance in evidence will not make the prosecution's case doubtful. The normal course of the human conduct would be that while narrating a particular incident there may occur minor discrepancies, such discrepancies in law may render credential to the depositions. Parrot-like statements are disfavoured by the courts. In order to ascertain as to whether the discrepancy pointed out was minor or not or the same amounted to contradiction, regard is required to be had to the circumstances of the case by keeping in view the social status of the witnesses and environment in which such witness was making the statement. This Court in Ousu Varghese vs. State of Kerala held that minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony. In Jagdish vs. State of M.P. this Court held that when the discrepancies were comparatively of a minor character and did not go to the root of the prosecution story, they need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions. This Court again in State of Rajasthan vs. Kalki held that in the depositions of witnesses there are always normal discrepancies, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal and not expected of a normal person.” 14. In A. Shankar vs. State of Karnataka, (2011) 6 SCC 279 the Hon'ble Supreme Court has held as under: “22. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety.” 15. Therefore it is well-settled in law that the minor discrepancies in the evidence of a prosecution witness are not given undue emphasise and what is important to examine is whether the testimony of a witness inspires confidence and is credible. The lacuna in the prosecution case pointed out by the defence on the ground that weapon of assault and blood-stained clothes were not seized and produced in the Court does not go to the root of the prosecution case so as to create a doubt on the prosecution story. The learned Additional Sessions Judge has rightly held that the prosecution has succeeded to prove the charge under sections 341 and 323 of the Indian Penal Code against the accused persons. 16. A common ground urged on behalf of the appellants is that the facts to constitute the offence under sections 326 and 307 of the Indian Penal Code are not established by the prosecution and while so the conviction of the appellants under section 307 of the Indian Penal Code and conviction of Barun Singh under section 326 of the Indian Penal Code are liable to be set-aside. Simply put, the submission is that the injury over left elbow or forearm or fracture of upper end of radius and ulna or incised wound over back of right elbow or fracture of lateral condyle humores or incised wound over back of the left chest around scapular region are not such injuries which are likely to cause death. 17. Section 326 of the Indian Penal Code provides as under: 326. 17. Section 326 of the Indian Penal Code provides as under: 326. Voluntarily causing grievous hurt by dangerous weapons or means - Whoever, except in the case provided for by Section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. 18. A bare glance at the aforesaid provision would indicate that to constitute the offence under section 326 of the Indian Penal Code the prosecution is required to prove such facts which would establish that: (i) accused has caused injury voluntarily. (ii) nature of the injury is grievous. (iii) weapon with which injury was caused should be any instrument for shooting, stabbing or cutting or any instrument which used as a weapon of offence is likely to cause death. 19. The expression employed under section 326 of the Indian Penal Code is that the injury caused to the victim is “likely to cause death.” This expression is clearly different from clause- 4thly to section 300 of the Indian Penal Code which provides that the accused committing the act knows that it is so eminently dangerous that it must in all probability shall cause death. So, there is a fine distinction between the offence of murder and the offence under section 326 of the Indian Penal Code inasmuch as the victim finally survives. From the manner of occurrence as narrated by the prosecution witnesses particularly PW-1 and PW-4, we do no gather any indication that the appellants had such intention or knowledge to cause such injury which was likely to cause death. 20. Therefore, the judgment of conviction and the order of sentence of RI for ten years and fine of Rs. 5,000/- under section 326 of the Indian Penal Code against the appellant Barun Singh is set-aside. 21. 20. Therefore, the judgment of conviction and the order of sentence of RI for ten years and fine of Rs. 5,000/- under section 326 of the Indian Penal Code against the appellant Barun Singh is set-aside. 21. Section 307 of the Indian Penal Code reads as under: 307. Attempt to murder - Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned. 22. In State of Maharashtra vs. Kashirao, (2003) 10 SCC 434 the Supreme Court has observed as under: “20.......The essential ingredients required to be proved in the case of an offence under Section 307 are: (i) that the death of a human being was attempted. (ii) that such death was attempted to be caused by, or in consequence of the act of the accused. (iii) that such act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as: (a) the accused knew to be likely to cause death; or (b) was sufficient in the ordinary course of nature to cause death, or that the accused attempted to cause death by doing an act known to him to be so imminently dangerous that it must in all probability cause (a) death, or (b) such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury.” 23. The offence under section 307 of the Indian Penal Code requires that if the act alleged has been done with such intention and knowledge which if accomplished the accused would have been charged for murder. Therefore, the gist of the offence under section 307 of the Indian Penal Code is that the attack on the victim must be with such intention or knowledge that the intended injury would cause his death. 24. Therefore, the gist of the offence under section 307 of the Indian Penal Code is that the attack on the victim must be with such intention or knowledge that the intended injury would cause his death. 24. Having regard to the evidence tendered by the prosecution witnesses, conviction of the appellants under section 307 of the Indian Penal Code is also liable to be set-aside for the simple reason that the prosecution has failed to establish that the appellants had such knowledge or intention that if the act was accomplished the victim would have died. 25. Therefore, the judgment of conviction and the order of sentence of RI for ten years and fine of Rs. 5,000/- under section 307 of the Indian Penal Code against the appellants are set-aside. 26. This is the evidence of the prosecution that the firearm with which Barun Singh has fired at PW-4 was not recovered. This is also an admitted position that any pellet or used cartridge was not found or seized by the Investigating Officer. Rather, on a plain reading of the evidence of PW-4 we find that this part of the story that Barun Singh fired at him is exaggeration by him. According to PW-4, he heard a sound of firing whilst running towards his house. In our opinion, PW-4 made a guesswork that Barun Singh had fired at him. We are fortified in our opinion for the reason that PW-4 did not allege that he had seen Barun Singh carrying a firearm or that while running towards his house turned back and saw Barun Singh firing at him. 27. For the aforesaid reasons, conviction and sentence of Barun Singh under section 27 of the Arms Act are set-aside. 28. However, conviction of the appellants and sentence awarded to them under sections 341 and 323 of the Indian Penal Code are affirmed. 29. Mr. B.M. Tripathi, the learned senior counsel for the appellant Barun Singh would submit that it is about more than two decades since when the appellant has been undergoing the agony of a criminal prosecution - FIR was lodged in the year 1999. The learned senior counsel has drawn our attention to the order of sentence dated 4th May 2012 in which Additional Sessions Judge has not made any reference to the mitigating circumstances why maximum punishment should be imposed upon the convicts. 30. The learned senior counsel has drawn our attention to the order of sentence dated 4th May 2012 in which Additional Sessions Judge has not made any reference to the mitigating circumstances why maximum punishment should be imposed upon the convicts. 30. This is by now a well-accepted practice in the criminal Courts that while imposing sentence upon the convict the Court is required to assess mitigating as well as the aggravating circumstances and maximum punishment is not imposed in a routine manner. 31. In State of Punjab vs. Manjit Singh, AIR 2009 SC 2888 the Hon'ble Supreme Court has held as under: “12. With regard to the quantum of punishment to be awarded to persons found guilty of offences dealt with in the IPC, the Code confers a wide discretion on the court in the matter of awarding appropriate punishment by prescribing the maximum punishment and in some cases both the maximum as well the minimum punishment for the offence. Though no general guidelines are laid down in the Code for the purpose of awarding punishment, generally the judicial discretion of the court is guided by the principle that the punishment should be commensurate with the gravity of the offence having regarding to the aggravating and mitigating circumstances vis-a-vis an accused in each case.” 32. Therefore, we are inclined to interfere with the order of punishment imposed upon the appellants in Sessions Trial No. 44 of 2002. 33. Accordingly, the order of sentence of simple imprisonment for one month under section 341 of the Indian Penal Code, RI for one year under section 323 of the Indian Penal Code against the appellants, namely, Sanjiv Kumar Singh, Kishore Kumar Singh and Barun Singh, and sentence of RI for two years under section 324 of the Indian Penal Code against the appellant Barun Singh dated 4th May 2012 passed by the learned 1st Additional Sessions Judge, Bokaro in Sessions Trial No. 44 of 2002 are set-aside. 34. The informant and the appellants Barun Singh and Kishore Kumar Singh were friendly with each other. They were residing in the nearby neighbourhoods. The occurrence has taken place over a trivial issue and in the ensuing marpit both sides have suffered minor injuries. If there is delay by PW-4 to lodge a report with the police, the accused persons have also failed to explain why a counter case was filed after one day. They were residing in the nearby neighbourhoods. The occurrence has taken place over a trivial issue and in the ensuing marpit both sides have suffered minor injuries. If there is delay by PW-4 to lodge a report with the police, the accused persons have also failed to explain why a counter case was filed after one day. And, as we have seen, the prosecution witnesses have tendered exaggerated version of the occurrence. 35. Having regard to the facts and circumstances in the case, we have formed an opinion that it would serve the interest of justice if the appellants are inflicted punishment of fine of Rs. 1,000/- each for the offence under sections 323 and 341 of the Indian Penal Code. 36. The appellant Barun Singh has also been convicted for the offence under section 324 of the Indian Penal Code. 37. Section 324 of the Indian Penal Code reads as under: 324. Voluntarily causing hurt by dangerous weapons or means - Whoever, except in the case provided for by Section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. 38. Section 324 of the Indian Penal Code provides that the accused can be sentenced to maximum punishment of 2 years or with fine or with both. Therefore the decision to award punishment of imprisonment of either description must rest on the facts and circumstances of the case. Barun Singh is said to have caused simple injury to PW-4. He was not carrying any weapon when he visited the house of PW-4. This also we have observed that PW-4 has exaggerated the role played by him in the occurrence. In these facts, we have decided to extend similar benefit to him by awarding punishment of fine of Rs.10,000/- for the offence under section 324 of the Indian Penal Code. 39. This also we have observed that PW-4 has exaggerated the role played by him in the occurrence. In these facts, we have decided to extend similar benefit to him by awarding punishment of fine of Rs.10,000/- for the offence under section 324 of the Indian Penal Code. 39. The appellants are further directed to pay compensation of Rs. 25,000/- (rupees twenty-five thousand only) each to the injured informant. 40. In the result, Criminal Appeal (DB) No. 904 of 2023, Criminal Appeal (DB) No. 905 of 2023 and Criminal Appeal (DB) No. 906 of 2023 are partly allowed in the aforesaid terms. 41. Let the lower Court records be transmitted to the Court concerned, forthwith. 42. Let a copy of this order be transmitted to the Court concerned through FAX.