JUDGMENT : Shree Chandrashekhar, J. This Criminal Appeal seeks to challenge the judgment dated 31st January 1992 passed by the Additional Sessions Judge, Bhilwara in Sessions Case No.10/1986. Mohammad Rafiq who was convicted and sentenced to imprisonment for life under section 302 of the Indian Penal Code and Abdul Sattar who was convicted and sentenced to rigorous imprisonment of 5 years under section 307 of the Indian Penal Code are the appellants who, according to the prosecution, committed murder of Barma and attempted to commit murder of Udailal. 2. The learned Sessions Judge relied on the testimony of Prabhulal (PW-4), Kailash (PW-6) and Udailal (PW-7) and held that Mohammad Rafiq had caused death of Barma and was liable to be convicted under section 302 of the Indian Penal Code. However, this is not the prosecution case that Mohammad Rafiq and Abdul Sattar shared common intention at any point in time and that seems to be the reason why separate charges have been framed against them. 3. During pendency of this criminal appeal, Mohammad Rafiq passed away and this criminal appeal qua him has abated. 4. Mr. Pranjul Mehta, the learned Amicus referred to the evidence tendered by Prabhulal (PW-4) and Dr. Gulab Chand Bansal (PW-12) to challenge conviction of Abdul Sattar under section 307 of the Indian Penal Code. The learned Amicus would contend that there is serious variation between the medical evidence and the ocular evidence inasmuch as the prosecution version that Abdul Sattar hit Udailal with a stone on his back is not supported by the evidence of PW-12 who stated in the Court that he found two bruises on the front portion of his chest. The learned Amicus would further submit that the foundation of the prosecution case must fall for the reason that the manner of occurrence as disclosed by the prosecution witnesses in the Court was not found probable by PW-12 who made a categorical statement in the cross-examination that the injury found on Barma could not have been caused if he was grappled by Abdul Sattar from behind. 5. 5. In support of his contentions, the learned Amicus relied on the following judgments: (i) “State of Himachal v. Mast Ram” reported in AIR 2004 SC 5056 (ii) “Jumman & Ors v. The State of Punjab” reported in AIR 1975 SC 469 (iii) “Surinder Kumar v. Union Territory, Chandigarh” reported in AIR 1989 SC 1094 ; and (iv) “Munni Lal Kumhar & Ors. v. State of Bihar” reported in 1999 (4) Crimes 481. 6. On the basis of Fard Bayan of Nandkumar recorded by the Officer Incharge of Bigod PS on 4th August 1985, a crime was registered vide FIR No.99/1985. After the investigation, a charge-sheet was laid in the Court against Mohammad Rafiq and Abdul Sattar and they were sent up for trial; Mohammad Rafiq under section 302 IPC and Abdul Sattar under section 307 IPC. Dr. Gulab Chand Bansal, who tendered evidence as PW-12, stated that he examined Udailal son of Mangilal on 4th August 1985 and observed two bruises over his chest and one scratch mark around his neck. PW-12 found the following injuries on the person of Udailal: 1. Bruise 2”X1” On Rt. Side of the chest 2” below the nipple Simple Blunt 2. Bruise 3”X1” On Rt. Side of the chest 3” below the nipple Simple Blunt 3. Abrasion 1/4” X 1/8” On left lateral side of the neck 2” left to midline and 1½” above the medial end of the left clavicle bone Simple Blunt 7. According to PW-12, the aforementioned injuries were caused by blunt weapon and were simple in nature. The injury report of Udailal was tendered in evidence and marked as Ex.P/15 which was duly proved by PW-12. 8. In course of the trial, the prosecution examined 16 witnesses out of whom Prabhulal, Kailash and Udailal have been projected as eyewitnesses; Udailal is an injured witness. The testimony of an injured witness is not put on a higher pedestal compared to any other eyewitness but the Courts shall give due consideration to the testimony of an injured witness because he lends assurance to the Court that he was the person who was present at the scene of occurrence. 9. In “Balu Sudam Khalde & Anr. v. State of Maharashtra” 2023 SCC OnLine SC 355, the Hon’ble Supreme Court held as under: “26. 9. In “Balu Sudam Khalde & Anr. v. State of Maharashtra” 2023 SCC OnLine SC 355, the Hon’ble Supreme Court held as under: “26. When the evidence of an injured eye-witness is to be appreciated, the under-noted legal principles enunciated by the Courts are required to be kept in mind: (a) The presence of an injured eye-witness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition. (b) Unless, it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused. (c) The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly. (d) The evidence of injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions. (e) If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of injured, but not the whole evidence. (f) The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded.” 10. The learned Amicus referred to statements of the eyewitnesses, which according to him are inconsistent and contradictory in certain respects, to lay support to his submission that the prosecution failed to establish the charge under Section 307 of the Indian Penal Code against Abdul Sattar. In particular, the learned Amicus referred to the testimony of PW-4 Prabhu Lal who deposed in the Court that in the morning around 10:30-11:00 AM he was grazing cattle in the nearby forest and at that time PW-6 and PW-7 were with him. There ensued an altercation between Sadiq and Udai who had scolded Sadiq for riding the Buffaloes. Whereupon Sadiq went away and informed Mohd. Rafiq and Abdul Sattar who were fishing in the river. Upon hearing the incident, they came near the forest area and Rafiq attacked Udai Lal with a kinfe. In the meantime, Barma came there and intervened then Abdul Sattar assaulted Udai Lal with a stone on his back and when he fell down Abdul Sattar jumped on him and Udai Lal got hurt due to stone lying in the river and started bleeding. In the meantime, Barma came there and intervened then Abdul Sattar assaulted Udai Lal with a stone on his back and when he fell down Abdul Sattar jumped on him and Udai Lal got hurt due to stone lying in the river and started bleeding. PW-4 further stated that Mohd. Rafiq caught hold of Barma and stabbed him with a knife. In the cross examination, this witness stood firmly to his ground and weathered the lengthy questioning by the defence. 11. The testimony of Prabhulal (PW-4), Kailash (PW-6) and Udailal (PW-7) has been challenged on the ground that they were relative or friend of Barma and therefore their testimony was laced with motive. However, having the decisions of the Hon’ble Supreme Court including “Masalti v. State of U.P.” AIR 1965 SC 202 in mind, we have examined the testimony of these witnesses with due care and caution and find that they are reliable witnesses. As PW-7, Udai Lal narrated a similar story of the incident which had happened around 10:30-11:00 AM on 4th August 1985. In the cross examination, PW-7 admitted that PW-4 and PW-6 are real brothers and he denied the defence suggestion that PW-4 and PW-6 had tutored him the name of the accused persons. This is well known that the prosecution witnesses may sometime make certain incorrect statements in the Court for variety of reasons such as their anxiety to see that the accused is punished. This is also well accepted that there may be minor variation, inconsistency and exaggeration in the evidence of the prosecution witness but such variation, exaggeration and inconsistency shall not attain immateriality unless those shake the foundation of the prosecution case. In “State of Rajasthan Vs. Kalki” (1981) 2 SCC 752 , the Hon’ble Supreme Court held that normal discrepancies are not material discrepancies. We may also refer to “Lela Ram Vs. State of Haryana” (1999) 9 SCC 525 wherein the Hon’ble Supreme Court held that minor embellishments and trivial discrepancies do not by themselves rendered the evidence of eyewitnesses unreliable. The maxim “falsus in uno falsus in omnibus” has not been found a sound rule to apply in the conditions in India and it is a judicially accepted fact that there may be embellishments in the testimony of a witness. 12. The maxim “falsus in uno falsus in omnibus” has not been found a sound rule to apply in the conditions in India and it is a judicially accepted fact that there may be embellishments in the testimony of a witness. 12. Having regard to the nature of evidence tendered by the prosecution witnesses, we are not inclined to render a finding that a false case was foisted by the prosecution upon Abdul Sattar. Still, we find that conviction of Abdul Sattar under section 307 of the Indian Penal Code is not sustainable in law. 13. The learned trial Judge heavily relied on the medical evidence to convict the accused. However the evidence of a medical man is just an observation by him and cannot form the basis for conviction. In “Madan Gopal Kakar vs. Naval Dubey” (1992) 3 SCC 204 , the Hon’ble Supreme Court observed that the expert opinion is not binding on the Court as the same shall be only advisory in nature. Moreover, the medical evidence shall not take precedence over the ocular evidence and the Court shall proceed to examine the truthfulness in the prosecution case on the basis of the testimony of the prosecution witnesses. 14. In “State of HP v. Jai Lal & Ors.: (1999) 7 SCC 280 the Hon’ble Supreme Court held that:- “An expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and material furnished which form the basis of his conclusions.” 15. This is well remembered that proof beyond reasonable doubt is the test in a criminal trial and the accused is entitled to a reasonable benefit of doubt. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and material furnished which form the basis of his conclusions.” 15. This is well remembered that proof beyond reasonable doubt is the test in a criminal trial and the accused is entitled to a reasonable benefit of doubt. The trial Judge is therefore under a duty to examine the testimony of the prosecution witnesses with open mind and he should not proceed in the matter as if the accused is guilty of the offence charged with. The trial Judge is also under a duty to apply correct test and find out whether the offence alleged against the accused is made out. In the context of the charge under section 307 of the Indian Penal Code against Abdul Sattar, it needs to be remembered that the gist of the offence under section 307 of the Indian Penal Code is such intention or knowledge under which if the intended act would have been accomplished the accused would be guilty of murder. 16. The expression “intention” is not defined in the Indian Penal Code and the intention of an accused can be gathered from the attending circumstances, weapon held by the accused and the part of the body which was affected by assault by the accused. Bruise injuries caused to Udailal were simple in nature and therefore it cannot be inferred that Abdul Sattar had requisite intention to cause death. Similarly, an accused can be imputed with the knowledge as envisaged under section 307 of the Indian Penal Code only when it is established that the offending act was so imminently dangerous that in all probability it would have caused death. As the injuries were found simple in nature, it also cannot be inferred that Abdul Sattar had knowledge that such injury would cause death of Udailal. We are therefore of the opinion that charge under section 307 of the Indian Penal Code framed against Abdul Sattar must fail. 17. However, as the presence and participation of Abdul Sattar in the occurrence were established by the prosecution, we hold that he is liable to be punished under section 323 of the Indian Penal Code. We are therefore of the opinion that charge under section 307 of the Indian Penal Code framed against Abdul Sattar must fail. 17. However, as the presence and participation of Abdul Sattar in the occurrence were established by the prosecution, we hold that he is liable to be punished under section 323 of the Indian Penal Code. The offence under section 323 of the Indian Penal Code provides that the accused may be punished with imprisonment of either description for a term which may extend to one year or with fine which may extend to one thousand rupees or with both. It is stated that Abdul Sattar has remained in custody for about 4 months and 15 days. The crime was committed in August 1985 and thirty years have passed since then. We therefore award punishment of the period already undergone by Abdul Sattar and he shall be discharged of the liability of bail bonds furnished by him pursuant to the order dated 10.03.1992 passed by this Court. 18. D.B. Criminal Appeal No.54/1992 is allowed in part in respect of Abdul Sattar. 19. We record our appreciation for Mr. Pranjul Mehta, the learned Amicus who has meticulously prepared short synopsis and list of dates and produced judgments on the point. The learned Amicus shall be duly compensated as per the rules/notification/circular in this regard.