ORDER : (Shree Chandrashekhar, J.) : Raghunath Pradhan who is the informant in Gamharia PS Case No.10 of 2013 has filed this acquittal appeal against the judgment dated 15th December 2017 passed in Sessions Trial No.93 of 2013. 2. By order dated 19th March 2018 leave to appeal has been granted by a co-ordinate Bench of this Court. 3. Even otherwise, in view of proviso to section 372 of the Code of Criminal Procedure the informant being a victim of the crime can maintain the present acquittal appeal. 4. The respondent nos.2 to 4 who were convicted under sections 341/34 and 323/34 of the Indian Penal Code have been released after due admonition under section 3 of the Probation of Offenders Act, 1958. Mrs. Vani Kumari, the learned counsel for the respondent nos.2 to 4 has informed the Court that the respondents have not challenged the judgment of conviction dated 15th December 2017 passed in Sessions Trial No.93 of 2013. 5. This acquittal appeal has been filed to challenge the judgment of acquittal of the respondent nos.2 to 4 for the offence under sections 324/34 and 307/34 of the Indian Penal Code. 6. The learned Sessions Judge has discussed the prosecution evidence in the following manner: “17. I, now analyse the testimonies of the witnesses. The case of the prosecution as per F.I.R is that the family members of informant's elder brother namely Kamal Lochan Pradhan were fighting with each other and at that time, at about 3.30 p.m. on 13.01.2013 the wife of the informant namely Chandni Devi was watching their fighting by opening the door of her house, to which the wife of accused Kamal Lochan Pradhan objected and on 'hulla', when the informant came out of his house, he saw that the wife of accused Kamal Lochan Pradhan and wife of accused Dinesh Pradhan were assaulting his wife and when he objected it, then accused Rajkumar also assaulted his wife and accused Kamal Lochan Pradhan, Deepak Pradhan being armed with 'Balua' (Daw) started assaulting him on the head and leg due to which he sustained injuries and fell down on the earth. The informant i.e P.W.2 Raghunath Pradhan has categorically stated about the occurrence and supported the case of the prosecution regarding assault. This witness has specifically deposed in his evidence that accused Deepak and Kamal Lochan assaulted him with 'Balua' on his head and leg. The informant i.e P.W.2 Raghunath Pradhan has categorically stated about the occurrence and supported the case of the prosecution regarding assault. This witness has specifically deposed in his evidence that accused Deepak and Kamal Lochan assaulted him with 'Balua' on his head and leg. In cross-examination, this witness has fully supported his version in respect of the manner of the occurrence. P.W.1 Chandni Devi is the wife of informant and she is an eye witness to the occurrence, who fully supported the manner of occurrence as stated in the F.I.R. This witness has specifically stated that accused persons assaulted her and when her husband came to rescue her, then accused Kamal Lochan Pradhan hurled 'Dawli' blow on the head of her husband and Deepak Pradhan caught hold her husband. She has further deposed that due to such assault, her husband fell down on the earth, and the right leg and three fingers of right leg of her husband become injured. P.W.3, P.W.4 & P.W.5 have not supported the case of the prosecution and they have been declared hostile by the prosecution. P.W.6 Ram Bharosa Sharma is the I.O. of this case, who establishes the investigation of this case. P.W.7 Dr. Nilay Kumar Sen, who examined the injured namely Raghunath Pradhan has proved the injury report, which has been marked as Ext.3 on behalf of prosecution, which also corroborates the case of the prosecution as well as factum of assault. P.W.8 Dr. Jayant Kumar Layak, who also examined the injured person namely Raghunath Pradhan at T.M.H. Jamshedpur has proved the injury report which has been marked as Ext.3/1. From the evidences of the prosecution witnesses and the nature of injuries as mentioned in the injury reports, I find that the doctor, who examined the injured persons has found three lacerated injury on right and left leg of the injured which were grievous in nature. P.W.7 Dr. Nilay Kumar Sen has specifically stated in his evidence that the leg of a person does not come under the vital part of the body. This fact goes to show that the above injuries were not fetal for life. Therefore, I find that the charge against the accused persons u/s 307/34 of the I.P.C is not proved. P.W.7 Dr. Nilay Kumar Sen has specifically stated in his evidence that the leg of a person does not come under the vital part of the body. This fact goes to show that the above injuries were not fetal for life. Therefore, I find that the charge against the accused persons u/s 307/34 of the I.P.C is not proved. For section 307 of the I.P.C, it requires that the act must be done with intention or knowledge or done, under such circumstances, if death be caused by that act, the offence of murder will emerge. Without this ingredient being established, there can be no offence under this section. Since the intention precedes the act, such intention has to be gathered from all the circumstances. The informant sustained lacerated wound on his leg. This circumstance reveals that the act of assault done by the accused persons was not of such intention or knowledge or done under such circumstances, that if the death be caused by that act, the offence of murder will emerge. In such view of the matter, the charge against the accused persons u/s 307/34 of the I.P.C is not proved by cogent and convincing evidence. The doctors i.e. P.W.7 & P.W.8 who examined the injured person i.e informant have found lacerated wound on the leg of injured (Informant). The doctors have not found any sharp cutting injury on the person of the informant. Therefore, I find that the charge against the accused persons u/s 324/34 of the I.P.C is also not proved. Therefore, the accused persons are acquitted for the charges punishable u/s 307/34 & 324/34 of the I.P.C. The injuries on the person of the informant are lacerated wound and nature of injuries are grievous in nature, so the charge against the accused persons u/s 323/34 & 341/34 of the I.P.C are well proved by the cogent and convincing evidence. Therefore, taking into consideration the above facts and circumstances of the case, I find and hold that the prosecution has been able only to prove its case u/s 341/34 & 323/34 of the I.P.C against the above named accused persons namely Raj Kumar Pradhan, Kamal Lochan Pradhan and Deepak Kumar Pradhan and accordingly, the accused persons named above are found guilty only for the charges punishable u/s 341/34 & 323/34 of the I.P.C. The accused persons are taken into judicial custody by cancelling their bail bonds. Put at 3.00 p.m today for hearing on the point of sentence.” 7. Mrs. Vani Kumari, the learned counsel for the respondent nos.2 to 4 has submitted that the prosecution has failed to establish that the respondent nos.2 to 4 shared common intention and this is quite evident from the prosecution evidence that Raj Kumar Pradhan has not been attributed any overt act but he has been convicted with the aid of section 34. 8. Section 34 of the Indian Penal Code is not a substantive offence unlike section 149 of the Indian Penal Code. It is not necessary for the prosecution to establish the precise role played by each accused with mathematical precision and section 34 can be employed wherever it is established that all had shared common intention. 9. In “C. Kunhammad v. Emperor” AIR 1924 Mad. 229 it was observed that the meaning of section 34 is that if two or more persons have individually done a thing jointly the position is the same as if each of them had done it individually. “C. Kunhammad” was approved by the Privy Council in “Barendra Kumar Ghosh v. King Emperor” AIR 1925 PC 1 . 10. Lord Sumner captured the appellant's argument in an illustration, which reads like this: “If three assailants simultaneously fire at their victim and lodge three bullets in his brain, all may be murderers, but, if one bullet only grazes his ear, one of them is not a murderer and, each being entitled to the benefit of the doubt, all must be acquitted of murder, unless the evidence inclines in favour of the marksmanship of two or of one.” 11. Speaking for the Board, Lord Sumner has written that: Even if the appellant did nothing as he stood outside the door, it is to be remembered that in crimes as in other things “they also serve who only stand and wait”. 12. In view of the aforementioned exposition of law on section 34 of the Indian Penal Code, we do not find substance in the plea that the respondent nos.2 to 4 cannot be convicted with the aid of section 34. 13. There are 8 witnesses who have come forward to support the prosecution case against the respondent nos.2 to 4. PW1 Chandni Devi is the wife of the informant who has tendered evidence in support of her husband during the trial. 13. There are 8 witnesses who have come forward to support the prosecution case against the respondent nos.2 to 4. PW1 Chandni Devi is the wife of the informant who has tendered evidence in support of her husband during the trial. PW2 Raghunath Pradhan is the informant of the case; and PW3 Sanat Pradhan and PW4 Madan Pradhan are related witnesses who have tendered hearsay evidence. The informant has stated that his wife Chandni Devi was assaulted by Lilawati Devi, Kiran Devi, Raj Kumar Pradhan and when he tried to intervene Kamal Lochan Pradhan and Deepak Kumar Pradhan both armed with Balua and Dawli started assaulting him and caused head and leg injuries due to which he fell on the ground and became unconscious. He was taken to Tata Main Hospital where Dr. Nilay Kumar Sen and Dr. Jayanta Kumar Laik treated him. 14. As PW7, Dr. Nilay Kumar Sen who clinically examined the informant at about 6:40 PM on 13th January 2013 has proved the injury report vide Ext.3. 15. PW7 has found (i) lacerated wound on left leg of the size of 6” x 3” x 2” (ii) lacerated wound over right leg of the size of 4” x 3” x 2” (iii) lacerated wound over right parietal region of the size of 3” x 1” x 1/2” and (iv) partial amputation of 3rd, 4th and 5th toes of right foot, on the person of the informant. 16. Mrs. Vani Kumari, the learned counsel for the respondent nos.2 to 4 would submit that except injury no.(iii) which was caused over right parietal region of the informant no other injury has been caused on any vital part of the body of the informant. The contention raised at the Bar is that the medical evidence does not establish that the accused persons intended or had requisite knowledge to commit the offence under section 307 of the Indian Penal Code and the trial Judge has rightly acquitted them for the said offence. The learned counsel for the respondent nos.2 to 4 would further submit that the offence under section 324 of the Indian Penal Code has also not been established by the prosecution and having regard to the facts and circumstances in the case this Court may not interfere with acquittal of the respondent nos.2 to 4 under section 324 of the Indian Penal Code. 17. 17. 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. 18. The offence under section 307 of the Indian Penal Code requires that the act alleged was done with such intention and knowledge which if accomplished the accused would have been charged for murder. Essentially the distinction between the offence under section 302 and section 307 of the Indian Penal Code is that the victim finally survives. Therefore it is necessary for the prosecution to establish that the accused had intended to commit murder or had such knowledge that his act was so imminently dangerous that in all probability it would cause death as envisaged under Clause 4thly to section 300 of the Indian Penal Code. 19. In “State of Maharashtra v. 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; and (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.” 20. The offence under section 325 of the Indian Penal Code requires that the prosecution must prove that (i) the injury was caused voluntarily and (ii) the injury was of the nature of grievous hurt. 21. Section 320 of the Indian Penal Code defines and designates injuries which shall be grievous in nature. 22. Section 320 of the Indian Penal Code reads as under: “320.Grievous hurt.—The following kinds of hurt only are designated as “grievous”:— First-Emasculation. Secondly-Permanent privation of the sight of either eye. Thirdly- Permanent privation of the hearing of either ear, Fourthly-Privation of any member or joint. Fifthly-Destruction or permanent impairing of the powers of any member or joint. Sixthly-Permanent disfiguration of the head or face. Seventhly-Fracture or dislocation of a bone or tooth. Eighthly-Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.” 23. Clause 5thly provides that destruction or permanent impairing of the powers of any member or joint shall be grievous hurt. Clause 7thly provides that fracture or dislocation of the bone or tooth shall also be designated as grievous. 24. Dr. Jayanta Kumar Laik has tendered evidence in the Court as PW8. He has stated that the X-ray of the right leg of the informant disclosed fracture of both bones of the right leg which was caused due to lacerated wound. Similarly, the lacerated wound over the left leg has resulted in fracture of both bones of the left leg of the informant. PW8 has stated in his cross-examination that the injury nos.(i) and (ii) were grievous in nature. The injury no.4 which was partial amputation of 3rd, 4th and 5th toe of right foot of the informant would definitely be grievous injury. 25. Therefore, we hold that the learned Sessions Judge has failed to exercise the powers vested in him. This is apparent from the materials on record that the accused are liable to be convicted under section 325 of the Indian Penal Code even though they have been rightly acquitted under section 307 of the Indian Penal Code. 25. Therefore, we hold that the learned Sessions Judge has failed to exercise the powers vested in him. This is apparent from the materials on record that the accused are liable to be convicted under section 325 of the Indian Penal Code even though they have been rightly acquitted under section 307 of the Indian Penal Code. Furthermore, we hold that acquittal of the respondent nos.2 to 4 under section 324 of the Indian Penal Code is bad in law and, accordingly, we set aside this order of acquittal of the respondent nos.2 to 4 but would not impose separate sentence for the offence under section 324 of the Indian Penal Code. 26. The prosecution case is that the respondents were fighting amongst themselves in their house. When the wife of the informant was trying to peep their fighting in their house the wife of Dinesh Pradhan objected and started a quarrel with her. The informant was not present at the place of occurrence and there is no hint of any previous enmity between the parties. The respondent no.2 is the real brother of the informant and both were living separately. This also appears from the materials on record that in the heat of the moment the respondents have assaulted the informant when he tried to intervene in the quarrel between his wife and the wife of Dinesh Pradhan. 27. Mr. Vineet Kumar Vashistha, the learned Spl.PP has informed the Court that Raj Kumar Pradhan and Deepak Kumar Pradhan have served sentence for more than four months from (13th January 2013 to 16th May 2013). The learned Spl.PP has further stated that Kamal Lochan Pradhan has served sentence of more than 8 months (from 24th January 2013 to 3rd October 2013 when he was released on bail). 28. Accordingly, the respondent nos.2 to 4 are convicted and sentenced under section 325 of the Indian Penal Code to undergo RI for one year. They are further directed to pay compensation of Rs.25000/-each to the informant, to be deposited in the Court concerned within six weeks. 29. In view of the above, Acquittal Appeal No.29 of 2018 is partly allowed, in the above terms. 30. Let the lower Court records be transmitted to the Court concerned, forthwith. 31. Let a copy of the Judgment be transmitted to the Court concerned.