ORDER : Challenging the judgment, dated 25.11.2009 in Sessions Case No.68 of 2006, on the file of Assistant Sessions Judge, Parvatipuram at Vizianagaram (“Assistant Sessions Judge” for short), the unsuccessful accused therein filed the present Criminal Appeal questioning the conviction and sentence imposed against him under Section 307 of the Indian Penal Code (“I.P.C.” for short). 2. The parties to this Criminal Appeal will hereinafter be referred to as described before the Court below for the sake of the convenience. 3. The Sessions Case No.68 of 2006, on the file of Assistant Sessions Judge, Parvatipuram at Vizianagaram, arose out of a committal order in P.R.C.No.15 of 2006 of Judicial Magistrate of First Class, Vizianagaram, relating to Crime No.121 of 2005 of Bhogapuram Police Station. 4. The case of the prosecution according to the charge sheet filed by the Sub-Inspector of Police, Bhogapuram Police Station in Crime No.121 of 2005 of Bhogapuram Police Station is as follows: (i) The accused is resident of Jeerupeta village, Bheemili Mandal of Vizianagaram District. During the night of 12.12.2005, the accused offered alcohol to L.W.1-Jeeru Gurumurthy @ Gurumurthy Reddy. During the night of 13.12.2005 at 8-00 p.m., when L.W.1 was present in the coconut tope of L.W.5-Jeeru Adayya, the accused approached L.W.1 and asked him to provide alcohol. L.W.1 informed him about his inability as he has no money. Then, a quarrel took place between L.W.1 and the accused and they rushed upon against each other armed with sticks. L.W.3-Jeeru Yerakayya, L.W.4-Lakkoji Appa Rao and L.W.5 intervened in the dispute as they were present by then. But, the accused went into the house of L.W.5, a carpenter by his caste profession and brought a Vuli knife and stabbed L.W.1 with the said knife in his stomach with a view to kill him in all of a sudden provocation, resulting of which, L.W.1 fell unconscious. Immediately, L.W.3 informed about the quarrel to L.W.2-Jeeru Srinu, L.W.6-Jeeru Narasimha Reddy and L.W.7-Jeeru Polayya and they rushed to the spot. L.W.6, the brother of the injured, took the injured in auto of L.W.8-Neelapu Yellayya Reddy to Abhaya Hospital, Visakhapatnam. (ii) Basing on the report given by L.W.2, another brother of L.W.1 injured, L.W.14-Sub-Inspector of Police, Bhogapuram registered a case in Crime No.121 of 2005 under Section 307 of I.P.C. and investigated into. L.W.6, the brother of the injured, took the injured in auto of L.W.8-Neelapu Yellayya Reddy to Abhaya Hospital, Visakhapatnam. (ii) Basing on the report given by L.W.2, another brother of L.W.1 injured, L.W.14-Sub-Inspector of Police, Bhogapuram registered a case in Crime No.121 of 2005 under Section 307 of I.P.C. and investigated into. He inspected the scene of offence and examined the same in the presence of mediators i.e., L.W.9- Jeeru Gurumurthy and L.W.10-Jeeru Polayya. He seized two sticks, controlled and blood stained earth from the scene. He arrested the accused on 15.12.2005 in the presence of same mediators. The accused confessed about his commission of offence and produced Vuli knife which was used by him in committing the offence against L.W.1. L.W.14 seized the Vuli knife in the presence of the mediators under mahazarnama. During investigation he examined the injured after he regained consciousness in the hospital. He forwarded the material objects to L.W.13-N. Adinarayana, Assistant Director, R.F.S.L., Visakhapatnam, through the Office of the Sub Divisional Police Officer, Vizianagaram for its examination. L.W.11-Dr. K. Raja Sagar, Abhaya Hospital, Visakhapatnam, who treated the injured, issued wound certificate opining the injury sustained by L.W.1 is grievous in nature. L.W.13 conducted Biological and Serological examination to the material objects and opined that the human blood is detected on the material objects and that is of “A” group blood. Investigation disclosed that the accused committed the offence under Section 307 of I.P.C. Hence, the charge sheet. 5. The learned Judicial Magistrate of First Class, Vizianagaram, took cognizance of the case under Section 307 of I.P.C. On appearance of the accused and on complying the procedure under Section 207 of the Code of Criminal Procedure (“Cr.P.C.” for short) relating to supply of copies of documents, the learned Magistrate committed the case to the Court of Sessions and thereupon it was numbered as Sessions Case and was made over to the Assistant Sessions Judge, Parvatipuram at Vizianagaram. 6. On appearance of the accused before the learned Assistant Sessions Judge, a charge under Section 307 of I.P.C. was framed and explained to him in Telugu, for which he pleaded not guilty and claimed to be tried. 7. During the course of trial, on behalf of the prosecution, P.W.1 to P.W.7 were examined and Ex.P.1 to Ex.P.6 were marked. Further M.O.1 to M.O.8 were marked on behalf of the prosecution. 7. During the course of trial, on behalf of the prosecution, P.W.1 to P.W.7 were examined and Ex.P.1 to Ex.P.6 were marked. Further M.O.1 to M.O.8 were marked on behalf of the prosecution. After closure of the evidence of the prosecution, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances in the evidence let in by the prosecution, for which he denied the same. He did not let in any evidence. 8. The learned Assistant Sessions Judge on hearing both sides and on considering the oral as well as documentary evidence found the accused guilty of the charge under Section 307 of I.P.C. and convicted him under Section 235(2) of Cr.P.C. After questioning the accused about the quantum of sentence, the learned Assistant Sessions Judge sentenced the accused to suffer rigorous imprisonment for eight years and to pay fine of Rs.500/-, in default to suffer simple imprisonment for four months. As the accused was in judicial custody from 15.12.2005 to 10.01.2006, the remand period was ordered to be set off under Section 428 of Cr.P.C. Felt aggrieved of the same, the unsuccessful accused filed the present Criminal Appeal, challenging the judgment of the learned Assistant Sessions Judge. 9. Now, in deciding the present Criminal Appeal, the points that arise for consideration are as follows: (1) Whether the prosecution before the Court below proved that on 13.12.2005 at 8-30 p.m., the accused attacked the injured (P.W.1) with an intention to kill him or with such knowledge that if he caused death, he would be guilty of the murder? (2) Whether the judgment of the learned Assistant Sessions Judge is sustainable under law and facts? Point Nos.1 and 2:- 10. P.W.1 before the Court below was no other than the injured whose evidence in substance is that the offence took place on 13.12.2005 at about 8-30 p.m. in the trashing floor of Jeeru Adiah. He went to the thrashing floor in casual manner. By that time, Lakkoji Appa Rao (L.W.4), G. Yerakaiah (L.W.3) and the accused were present. Accused asked him to provide alcoholic drink. He told him that he has no money on that day. Accused stated that he (accused) once gave him (P.W.1) alcoholic drink and he (P.W.1) was not obliging his (accused) request and slapped him. Then he (P.W.1) took one stick into his hands and the accused also taken one stick. Accused asked him to provide alcoholic drink. He told him that he has no money on that day. Accused stated that he (accused) once gave him (P.W.1) alcoholic drink and he (P.W.1) was not obliging his (accused) request and slapped him. Then he (P.W.1) took one stick into his hands and the accused also taken one stick. When they tried to beat each other, L.W.3-Yerakayya and L.W.4-Appa Rao took away the sticks from their hands. Then the accused scolded him using unparliamentary language and stating that he should not live and went to the house of Lakkoji Appa Rao and brought one Vuli having sharp edge and stabbed P.W.1 on his stomach upper part. When he pushed the accused with his left hand, he sustained two injuries on his left hand from the accused. He sustained bleeding injury and the intestine was also exposed and he fell down and was unconscious. His elder brother, G. Narasimha (L.W.6), came to the scene after knowing the incident and took him to the private hospital Abhaya in Visakhapatnam. His brother, J. Srinu, gave report to the police. He was examined by the police in Visakhapatnam hospital. He was treated as in-patient in the hospital for 20 days. M.O.1 is Vuli (Carpenter tool) used by the accused in the commission of offence. 11. P.W.2 was the defacto-complainant, who lodged a report with police having come to know about the occurrence. His evidence is that the offence took place on 13.12.2005 at night time, at about 8-30 p.m. At that time he was at his house. L.W.3-Yerakayya came to his house and informed that the accused stabbed his brother P.W.1 with one Vuli knife at the thrashing floor of Jeeru Adiah. Then, he and his brother Jeeru Narasimha went to the thrashing floor and found P.W.1 on the ground with bleeding injuries on his left hand and stomach. On questioning Yerakayya narrated the incident. P.W.1 was taken to Abhaya Hospital at Vizag in auto. L.W.3 also present by then. He gave statement to the police, which is Ex.P.1. 12. Coming to the evidence of P.W.3, who was a direct witness to the occurrence his name is J. Yerakaiah. His evidence in substance is that on 13.12.2005, the offence took place at about 8-30 p.m. After completing dinner, he came to the thrashing floor of Jeeru Adiah to sleep there. He gave statement to the police, which is Ex.P.1. 12. Coming to the evidence of P.W.3, who was a direct witness to the occurrence his name is J. Yerakaiah. His evidence in substance is that on 13.12.2005, the offence took place at about 8-30 p.m. After completing dinner, he came to the thrashing floor of Jeeru Adiah to sleep there. The accused, L.W.4 and L.W.5 were present there. P.W.1 came to the thrashing floor. The accused asked some liquor and P.W.1 stated his inability to purchase liquor. The accused beat P.W.1. Then P.W.1 took a stick into his hands and the accused also took one stick and both of them prepared to beat each other and they separated them. The accused stating that P.W.1 is to be killed, went to the house of Appa Rao, which is situated near the thrashing floor and brought one Vuli knife (Carpenter tool) and stabbed P.W.1 in his stomach. The intestine came out and P.W.1 sustained bleeding injury. The entire shirt was blood stained. M.O.1 is the Vuli (already marked). He went to the village and informed the incident to P.W.2 and his brother Narasimhulu. He came again to the thrashing floor along with P.W.2 and Narasimhulu. They found P.W.1 was unconscious state of mind and bleeding was blocked with a towel and he was taken to the hospital, Vizag in auto by Narasimhulu. 13) The prosecution examined P.W.4 and his evidence is that the offence took place in the month of December, 2005 at about 8-00 p.m. in the thrashing floor of Jeeru Adaiah. By that time he was at his house after completing his dinner. P.W.3 came to him and informed that P.W.1 fell on the ground, when the accused stabbed him with Vullikatti. Then, he went to the scene along with P.W.3. He found P.W.1 with injuries and also found that intestine was exposed to outside. P.W.2 and he took P.W.1 in auto of one Neelapu Yellareddy to Appollo Hospital, Vizag. Prior to that, P.W.1 was taken to the hospital of one Swaminaidu at Tagarapuvalasa and on his advice, P.W.1 was taken to Vizag. He was treated in the hospital for one or two months. P.W.2 and he took P.W.1 in auto of one Neelapu Yellareddy to Appollo Hospital, Vizag. Prior to that, P.W.1 was taken to the hospital of one Swaminaidu at Tagarapuvalasa and on his advice, P.W.1 was taken to Vizag. He was treated in the hospital for one or two months. 14) The prosecution examined P.W.5, a mediator, who deposed that the police examined the scene of offence on 14.12.2005 at about 10-00 a.m. and seized one teak stick and one bamboo stick and blood stained earth and controlled earth under the cover of Ex.P.2 observation report. On 15.12.2005 at 10-00 a.m., the police called him again and he was taken to the house of the accused and he was caught hold while he was hiding in the house on the Atuku. The accused gave confessional statement to the police and he concealed the crime weapon i.e., Vullikatti in cheeru (eves) and produced the same before the police. Police seized the same under the cover of Ex.P.3 (only admissible portion). 15) P.W.6 was the then Sub Inspector of Police, Bhogapuram and his evidence is that on 14.12.2005 at 9-00 a.m., while he was present in the police station, P.W.2 came to the police station and gave his statement, which is Ex.P.1. He registered it as a case in Crime No.121 of 2005 under Section 307 of I.P.C. Ex.P.4 is F.I.R. He left the police station along with his staff to the scene of offence which was situated at Jeerupeta Village, a coconut tope. He observed the scene of offence under Ex.P.5. He seized one Bamboo stick, one small teak stick, blood stained earth and controlled earth under the cover of Ex.P.2 mediators report. He examined P.W.3, L.W.2, L.W.4, L.W.5, P.W.4, L.W.7 and L.W.8 and recorded their statements. He left the scene of offence and proceeded to Abhaya Hospital, Visakhapatnam where injured was taken treatment. As he was under surgery, he could not take the statement of him. On 15.12.2005 on reliable information, he along with mediators, proceeded to Jeerupeta and arrested the accused under the cover of a separate report. Basing on the confessional statement, he seized one full hands shirt with blood stains, one cotton lungi and one Vulikatti. Vulikatti was concealed on the eves (Pedaka) by the accused. M.O.4 and M.O.5 are the sticks. After arresting the accused, he sent him for remand on the same day. Basing on the confessional statement, he seized one full hands shirt with blood stains, one cotton lungi and one Vulikatti. Vulikatti was concealed on the eves (Pedaka) by the accused. M.O.4 and M.O.5 are the sticks. After arresting the accused, he sent him for remand on the same day. On 17.12.2005 he examined P.W.1 and recorded his statement. He seized the blood stained clothes of the injured i.e., one T-shirt and blood stained cotton lungin, towel. T-shirt was marked as M.O.6, cotton lungi was marked as M.O.7 and towel was marked as M.O.8. He got examined the same through RFSL report. After completion of investigation, he filed charge sheet. 16) The prosecution examined P.W.7, the medical officer, who treated the injured and he deposed that presently he is working as MLC consultant, Abhaya Critical Care, Visakhapatnam. On 14.12.2005 at 8-00 p.m., P.W.1 was brought by his brother Appala Reddy. He examined him and found a stab injury of 3 cm. length and ½ cm width with exposure of omentum (5 cm) with a carpenting instrument (Vuli). Patient underwent laporatomy exploration and on laporatomy exploration he found 8 cm laceration of right anterior and posterior rectur sheith, right rectur muscle with omentum prolase. The injury is grievous in nature. 17) Smt. T.V. Sridevi, learned counsel for the appellant, would contend that though the offence in question was happened at about 8-30 p.m., during night, report could not be lodged till the next day morning and even the police did not obtain any statement or did not obtain any report from P.W.1, injured. On the other hand, P.W.2, the brother of P.W.1, gave a statement to the police. There must have been a report or statement recorded from the injured which was suppressed by the investigating officer. The prosecution did not examine Lakkoji Appa Rao. The statement under Ex.P.1 was hit under Section 161 of Cr.P.C., as the earlier report by P.W.1 was suppressed. The Court below just believing the evidence of P.W.1 went on to convict the appellant. The Court below should not have believed the recovery of M.O.1. The ocular evidence and the medical evidence does not reconcile with each other. The accused had never any intention to kill the injured. The defence of the accused before the Court below was that P.W.1 sustained injuries by fall after consumption of liquor. The Court below should not have believed the recovery of M.O.1. The ocular evidence and the medical evidence does not reconcile with each other. The accused had never any intention to kill the injured. The defence of the accused before the Court below was that P.W.1 sustained injuries by fall after consumption of liquor. Even if the allegations of the prosecution are believable for any reason, it would attract only Section 326 of I.P.C., but not Section 307 of I.P.C. The sentence imposed against the accused for a term of eight years is excessive and harsh. She would further contend that there was no probability for P.W.3 to witness the occurrence and he was a chance witness. At any rate, the judgment of conviction and sentence imposed against the accused is not sustainable under law and further the allegations would not prove the essential ingredients of Section 307 of I.P.C., as such, she seeks to exonerate the accused. 18) Sri Y. Jagadeeswara Rao, learned counsel, representing the learned Public Prosecutor, would contend that P.W.3 was an independent witness to the occurrence. His presence was categorically proved by the prosecution. P.W.1 had no reason to implicate the accused falsely. Even according to the answers elicited from P.W.2, the accused and P.W.1 used to consume alcohol together. Therefore, the motive set up by the prosecution is further strengthened in cross examination of P.W.1. M.O.1 weapon was a sharp edged and the accused had knowledge or intention that if he attacked the injured with such weapon, it is likely to cause the death of the injured. The Court below rightly believed the case of the prosecution and held that the evidence of P.W.1 has corroboration even from the medical evidence. With the above said contentions, he would seek to dismiss the appeal. 19) During the course of cross examination, P.W.1 testified that the thrashing floor of Adaiah is situated in Bhogapuram Mandal at Dankada village. He got friendship with the accused two or three years prior to the offence. The accused and he himself used to meet once for two or three months for consuming liquor contributed by both of them. He visited the thrashing floor of Adaiah now and then to sleep. He regained consciousness only four days after the incident. He informed the doctor about the incident. He did not state before police that the accused stabbed him with Vullikatti. He visited the thrashing floor of Adaiah now and then to sleep. He regained consciousness only four days after the incident. He informed the doctor about the incident. He did not state before police that the accused stabbed him with Vullikatti. He denied that the accused abused him in filthy language and that he should not live. The house of Lakkoji Appa Rao is at the distance of 150 yards from the thrashing floor of Adaiah. P.W.3 was working under the Appa Rao. He denied that he fell in intoxicated state and sustained injuries and he gave false report. 20) Coming to the evidence of P.W.3, the direct witness to the occurrence, he deposed in cross examination that for some period he worked under Lakkoji Appa Rao. As Appa Rao went to Vizag, he stopped working under him one year prior to the alleged incident. Police came to the scene at about 1-00 p.m. on the next day. He denied that he did not state before police that the accused abused P.W.1 and that he would not live P.W.1 alive. He did not go to the hospital with P.W.1. He denied that he, P.W.2, P.W.1 and Appa Rao were friends and in drunken mood, P.W.1 fell and sustained injuries. 21) P.W.4 is not a direct witness to the occurrence and he is one of the brothers of P.W.1 and he testified that the presence of P.W.1 with injuries at the scene. The evidence of P.W.1 has corroboration from the evidence of P.W.3 insofar as attack against P.W.1 by the accused. During the course of cross examination, P.W.2 categorically explained that the distance between Bhogapuram police station and Jeerupeta is 6 to 7 kilometers. He went to the police station on the next day morning at about 9-00 a.m. along with one Jeeru Gurumurthy and he was examined by the police at 1-00 p.m. He denied that he did not state in Ex.P.1 that P.W.1 stabbed with Vullikatti. 22) It is to be noticed that it is a case where P.W.1 lost consciousness after the incident and he even in cross examination he stated that he regained consciousness only four days after the incident and he informed the doctor about the incident. 22) It is to be noticed that it is a case where P.W.1 lost consciousness after the incident and he even in cross examination he stated that he regained consciousness only four days after the incident and he informed the doctor about the incident. Apart from this, there is evidence of P.W.6, the investigating officer, that though he made effort to examine P.W.1, but, he was under process of surgery, as such, he could only examine him on 17.12.2005. Hence, there was no probability or possibility for P.W.1 either to give a statement to the police on the date of occurrence or subsequent thereto. It is a case where P.W.1 received bleeding injuries on his abdomen and the immediate need of P.W.2 was to provide necessary medical aid to P.W.1. So, the act of P.W.2 in giving statement to police on the next day cannot be viewed with any eye of suspicion. 23) Now, the defence of the accused before the Court below was that P.W.1 in drunken state fell and received such injuries. It is to be noticed that when P.W.7, the medical officer, categorically testified about the nature of injury, nothing was elicited from him that the injury received by P.W.1 could be possible by fall. Apart from this, it is a case where the accused elicited negative answers which goes against his defence in cross examination from the mouth of P.W.1 to the effect that he and the accused used to meet once for two or three months for consumption of liquor. The case of the prosecution is that one day prior to the offence, the accused provided alcohol to P.W.1 and on the date of offence the accused demanded P.W.1 to provide alcohol for which P.W.1 expressed his inability and there ensued to a quarrel and both of them indulged in picking out sticks to attack each other which was said to be pacified by P.W.3 and others. Apart from the evidence of P.W.1, even the answers elicited by the accused that he and P.W.1 used to meet with each other for consumption of liquor being contributed by both of them supported the case of the prosecution. So, the answers elicited from P.W.1 during the course of cross examination further lends an assurance to the case of the prosecution. The injury received by P.W.1 cannot be attributed to a fall in drunken state. So, the answers elicited from P.W.1 during the course of cross examination further lends an assurance to the case of the prosecution. The injury received by P.W.1 cannot be attributed to a fall in drunken state. Hence, absolutely, P.W.3 who is the independent witness has no reason to depose false against the accused. 24) Absolutely, the accused did not elicit anything from P.W.2 that whether during the night he lodged any report or statement to police. The contention of the appellant that the earlier report was suppressed by the prosecution cannot stands to any reason. Therefore, it is very clear that the evidence of P.W.1 has corroboration from P.W.3 who was an independent witness to the occurrence. The prosecution need not examine each and every witness cited by the prosecution. Though the prosecution did not examine Lakkoji Appa Rao from whose house the accused picked out Vullikatti, it is not going to affect the case of the prosecution in any way. It is also the contention of the appellant that Lakkoji Appa Rao was not there in the village. It is very difficult to accept such contention. The accused elicited form the mouth of P.W.3 that he worked for some period under Lakkoji Appa Rao previously and as Appa Rao went to Vizag, he stopped working under him one year prior to the incident. It does not mean that Lakkoji Appa Rao was not in the village on the date of incident. 25) In the light of the above, the testimony of P.W.1 and P.W.3 is quietly believable. Their evidence is consistent with each other. The evidence of P.W.1 has corroboration from the evidence of P.W.7, the medical officer, coupled with Ex.P.6. In my considered view, the prosecution by adducing cogent evidence proved the fact that on 13.12.2005 at 8-30 p.m., the accused attacked P.W.1 with Vullikatti. Though the accused agitated before P.W.1 that he did not state before police that he was attacked with Vullikatti, but the fact remained is that merely because the word Vullikatti was not used by P.W.1, it is not going to affect his testimony. In my considered view, the prosecution before the Court below proved the attack made by the accused on P.W.1, which resulted into causing of grievous injury to him. The oral evidence as well as the medical evidence is quietly consistent. In my considered view, the prosecution before the Court below proved the attack made by the accused on P.W.1, which resulted into causing of grievous injury to him. The oral evidence as well as the medical evidence is quietly consistent. 26) Now, another aspect that has to be considered here is as to whether the act that is alleged and proved by the prosecution against the accused would attract essential ingredients of Section 307 of I.P.C. It is to be noticed that it is the specific evidence of P.W.1 that when the accused demanded him to provide alcohol and when he refused to provide, the accused slapped him and then he (P.W.1) took a stick into his hand and the accused also took a stick and both of them were ready to attack each other and then they were separated by L.W.3 and L.W.4 and then the accused went into the house of Lakkoji Appa Rao by stating that he should not live and brought Vulli knife and attacked him. It is also testified by P.W.3. Insofar as the word spoken by P.W.1 and P.W.3 that the accused attacked P.W.1 stating that he shall not live, the accused was able to elicit from the mouth of P.W.6, the investigating officer that P.W.1 did not state before him that the accused stabbed him by saying that he (P.W.1) should not live. Therefore, the evidence of P.W.1 and P.W.3 that the accused made an attack on P.W.1 stating that P.W.1 shall not live or P.W.1 is to be killed is an omission which amounts to a material contradiction (words alleged to be used by the accused). 27) It is to be noticed that it is not the case of the prosecution that the accused attacked multiple times on the abdomen of P.W.1. On the other hand, even according to the evidence of P.W.1, the accused made a single attack and P.W.1 received a single injury. The evidence on record would prove undoubtedly that in a heat of passion when P.W.1 and accused were ready to attack each other by armed with sticks and when they were separated by L.W.3 and L.W.4, the accused went into the house of Lakkoji Appa Rao and brought Vullikatti and made an attack. Hence, the probabilities are such that the accused did not utter any words while attacking P.W.1 that he wanted to kill him. Hence, the probabilities are such that the accused did not utter any words while attacking P.W.1 that he wanted to kill him. It is no doubt true that the injury caused by the accused to P.W.1 was on the abdomen which is a vital part, but, what is material to decide the charge under Section 307 of I.P.C. is whether the accused did such an act with an intention or with such knowledge that he would be guilty of murder, if he causes death by such an act. It is to be noticed that according to the evidence of P.W.7, he found a stab injury of 3 cm length and ½ cm width with exposure of omentum (5 cm). It may be a fact that inner side of abdomen there was a laceration of 5 cm right anterior and posterior rectur sheith, right rectur muscle with omentum prolapse. But, the thing is that the width of the weapon must have been less than ½ cm. So, it is not a big knife. It is not a heavy cutting instrument but it can only be used for carpenting work. 28) Having regard to the above, this Court is of the considered view that it is very difficult to come to a conclusion that the accused had knowledge that by such an act if he causes death, he would be guilty of murder. Merely because P.W.1 received a grievous injury on account of the attack made by the accused, it does not leads to automatic conclusion that the accused made such an attack with an intention or with knowledge that he would be guilty of murder, if he causes death of the injured. 29) In the light of the above and as the evidence of P.W.1 that the accused attacked him by saying that he shall not live is an omission, it is very difficult to say that the prosecution established the charge under Section 307 of I.P.C. In my considered view, the accused would have no intention to kill P.W.1 or he would have no knowledge that he would be guilty of murder, if he causes death of the injured by such a weapon. The width of the piercing part of the weapon is less than ½ cm. The width of the piercing part of the weapon is less than ½ cm. Under the circumstances, I am of the considered view that the evidence on record would only attract the essential ingredients of Section 326 of I.P.C. instead of Section 307 of I.P.C. Section 307 of I.P.C. contemplates that the prosecution should prove the intention or knowledge to cause death. Section 326 of I.P.C. provides causing of grievous hurt by means of any instrument for shooting, stabbing or any instrument which used as a weapon of offence which is likely to cause death. Therefore, what is criteria under Section 326 of I.P.C. is that causing an injury with an instrument which is likely to cause death. So, obviously, the intention on the part of the accused to commit murder of P.W.1 or atleast the knowledge that he would be guilty of murder, if he causes death by such an act are obviously missing from the evidence let in coupled with the medical evidence. 30) Having regard to the above, I am of the considered view that the case of the prosecution would squarely prove the offence under Section 326 of I.P.C. against the accused, but, not under Section 307 of I.P.C. Section 326 of I.P.C. is a minor offence, if it is compared with Section 307 of I.P.C. The evidence on record would prove categorically the offence under Section 326 of I.P.C. against the accused instead of the offence Section 307 of I.P.C. The learned Assistant Sessions Judge made a finding that it is not the case of the prosecution that at a spur of moment and due to grave and sudden provocation, the accused attacked the injured. The learned Assistant Sessions Judge overlooked the evidence on record which is to the effect that both P.W.1 and accused took sticks with each other and were ready to attack with each other and at timely intervention of P.W.3 and others, they could not attack with sticks. Undoubtedly, the incident in question was happened when the accused and P.W.1 were separated by P.W.3 and others. The cause for the incident was a petty quarrel as P.W.1 did not oblige the request of the accused to provide alcohol, as at previous night the accused provided alcohol to P.W.1. Undoubtedly, the incident in question was happened when the accused and P.W.1 were separated by P.W.3 and others. The cause for the incident was a petty quarrel as P.W.1 did not oblige the request of the accused to provide alcohol, as at previous night the accused provided alcohol to P.W.1. Under the circumstances, it cannot be held that the prosecution made out the offence under Section 307 of I.P.C. On the other hand, the evidence on record would prove the offence under Section 326 of I.P.C. alone against the accused beyond reasonable doubt. 31) In the light of the above, I am of the considered view that looking into the fact that the offence in question was happened at a spur of moment when both P.W.1 and accused were trying to attack each other with sticks and having regard to the above overall facts and circumstances, the sentence imposed against the accused is to be modified under Section 326 of I.P.C. appropriately. 32) In the result, the Criminal Appeal is allowed in part modifying the sentence of imprisonment imposed by the learned Assistant Sessions Judge, Parvatipuram at Vizianagaram against the appellant (accused) from that of Section 307 of I.P.C. to Section 326 of I.P.C. and sentencing the accused to suffer rigorous imprisonment for four years and to pay fine of Rs.500/- in default to suffer simple imprisonment for six months. 33) The Registry is directed to take steps immediately under Section 388 Cr.P.C. to certify the judgment of this Court to the trial Court on or before 11.07.2023 and on such certification, the trial Court shall take necessary steps to carry out the sentence imposed against the appellant (accused) and to report compliance to this Court. 34) Registry is directed to send copy of the order along with original record to the Court below on or before 14.07.2023. Consequently, miscellaneous applications pending, if any, shall stand closed.