JUDGMENT : Shree Chandrashekhar, A.C.J. Raja Ansari in Criminal Appeal (DB) No.351 of 2014 and Bittu Ansari in Criminal Appeal (SJ) No.423 of 2014 have challenged the judgment in Session Trial No.217 of 2013. 2. By the judgment dated 28th April 2014, the Sessions Judge, Dhanbad convicted and sentenced Raja Ansari to undergo RI for 10 years under section 307/34 of the Indian Penal Code with fine of Rs.5,000/-. 3. Bittu Ansari who is the appellant in Criminal Appeal (SJ) No.423 of 2014 was convicted and sentenced to undergo RI for 7 years under section 307/34 of the Indian Penal Code with fine of Rs.5,000/-. The Sessions Judge has imposed punishment of SI of one year upon both the convicts in default of their paying the fine amount. 4. Raja Ansari and Bittu Ansari have also been convicted and sentenced to SI for six months under section 323/34 of the Indian Penal Code. 5. The Sessions Judge disbelieved the evidence of PW3 Noorjahan Begam primarily on the ground that she deposed in the Court that the place of occurrence is about 1½ KM from her house. PW4-Asfaque Ansari is also not an eyewitness as he deposed that at the time of occurrence he was in his tailoring shop. However, the trial Judge believed the evidence tendered by PW2-Alim Khan, PW5-Shamim Hussain and PW6-Md. Bablu Ansari to arrive at the conclusion that Raja Ansari and Bittu Ansari are guilty of committing the offence under section 307/34 of the Indian Penal Code and section 323/34 of the Indian Penal Code. 6. The Sessions Judge at Dhanbad has discussed the prosecution evidence in the following manner: “16. From the aforesaid oral and documentary evidence, it appears that there is some doubt regarding the presence of Noorjhan Begam (P.W. 3) at the place of occurrence. She has stated that her house is about one and half kilometre from the place of occurrence. But she stated that she was present at the place of occurrence whereas Shamim Ansari, (P.W. 5) her son, at paragraph11 has stated that his mother was present at home at the time of occurrence, therefore, evidence of Noorjhan Begam (P.W. 3) cannot be relied upon. Asfaque Ansari (P.W. 4) is not an eye witness. He is hearsay witness but he stated that he reached at the place of occurrence on hearing hulla and saw the accused persons fleeing away. Asfaque Ansari (P.W. 4) is not an eye witness. He is hearsay witness but he stated that he reached at the place of occurrence on hearing hulla and saw the accused persons fleeing away. He also saw injury on his person of Babloo Ansari. Md. Alim Khan (P.W. 2), Shamim Ansari (P.W. 5) and Md. Babloo Ansari (P.W. 6) all have supported the occurrence. There is no discrepancy in the statement regarding the time, place and manner of occurrence. Witnesses have stated that accused Raja Ansari inflicted three blows on the person of Babloo Ansari. The oral testimony of these witnesses is corroborated by the injury report (Ext. 6). The injuries has been found to be grievous in nature. Kaisher Ahmad Khan (P.W. 7), I.O. has stated that the place of occurrence is about 25 feet of Imam Bara. The other witnesses have also stated that place of occurrence is near Imam Bara. 17. From the aforesaid facts and circumstances, it is evident that the witnesses have remained constant in their occurrence. The oral testimony of the prosecution witnesses is corroborated by the documentary evidence. There is nothing in the cross-examination of these witnesses which discards their testimony. As far as manner of occurrence is concerned, Raja Ansari has given three bhujali blow on the vital part of the body. They fled away after people of the locality assembled at the place of occurrence so there was intervening circumstance in this case failing which Raja Ansari would have committed murder or injured Babloo Ansari. As far as accused Bittu Ansari is concerned, allegation against him is that he has assaulted the injured by fist after Raja Ansari has inflicted Babloo Ansari. Babloo Ansari has stated that he has stated Bittu Ansari had assaulted on the same place of the stomach where Raja Ansari has given Bhujali blow. In view of the aforesaid facts and circumstances, I am of the opinion that prosecution has been able to prove its case against accused Raja Ansari for committing offence under Sections 323/34, 307/34 of the I.P.C beyond all reasonable doubts. The prosecution, in my opinion has failed to distinctly prove its case against the accused persons U/s 326/34 IPC. In view of the aforesaid facts and circumstances, I am of the opinion that prosecution has been able to prove its case against accused Raja Ansari for committing offence under Sections 323/34, 307/34 of the I.P.C beyond all reasonable doubts. The prosecution, in my opinion has failed to distinctly prove its case against the accused persons U/s 326/34 IPC. As the accused persons had assaulted the victim Bablu Ansari with intention of committing murder, I have already came to a finding that the prosecution has been able to prove the case against the accused persons under Sections 307/34 of the I.P.C. Accordingly, they are held guilty for offence U/s 307/34 I.P.C. Both the accused persons are acquitted of the charge under Section 326/34 of the I.P.C the accused Raja Ansari and Bittu Ansari are further held guilty under Sections 324/34, of the I.P.C for causing simple hurt to the Babloo Ansari.” 7. Jharia PS Case No.452 of 2012 was registered on the basis of the fard beyan of Md. Bablu Ansari recorded by the officer-in-charge of Jharia PS at Lifeline Hospital, Jharia around 22:00 PM on 20th November 2012. This is the prosecution case that on 20th November 2012 there was altercation between Shamim Hussain and Raja Ansari who had been giving prank calls. In this connection, Bablu Ansari lodged a protest whereupon Raja Ansari threatened to kill him. This is the case of the prosecution that Raja Ansari assaulted Bablu Ansari with Bhujali and caused injuries over his elbow and around the abdominal area. The injured Bablu Asnari was taken to hospital where, as noticed above, his statement was recorded by the officer-in-charge of Jharia PS. 8. After the investigation, a charge-sheet was laid against Raja Ansari and Bittu Ansari under sections 323, 326 and 307 read with section 34 of the Indian Penal Code. 9. In Sessions Trial No.217 of 2013, the appellants faced the charge under sections 323/34, 326/34 and section 307/34 of the Indian Penal Code. 10. Md. 8. After the investigation, a charge-sheet was laid against Raja Ansari and Bittu Ansari under sections 323, 326 and 307 read with section 34 of the Indian Penal Code. 9. In Sessions Trial No.217 of 2013, the appellants faced the charge under sections 323/34, 326/34 and section 307/34 of the Indian Penal Code. 10. Md. Zaid Ahmad, the learned counsel for Raja Ansari challenges the award of sentence of RI for 10 years to Raja Ansari under section 307/34 of the Indian Penal Code on the ground that once a finding has been recorded that Raja Ansari and Bittu Ansari shared common intention to commit the crime, award of punishment of 10 years upon Raja Ansari and 7 years to Bittu Ansari is illegal. 11. PW2-Md. Alim Khan and PW5-Shamim Hussain are the close relatives of the victim Bablu Ansari. Their testimony in the Court has been challenged as tainted on the ground of their being partisan witness. In the Court, PW2 supported the informant Bablu Ansari but, in the cross-examination, he stated that he arrived at the place of occurrence after hearing hullah. PW2 stated in the Court that he saw the appellants fleeing away from the place of occurrence but, at the same time, he deposed that Raja Ansari assaulted Bablu Ansari with a Bhujali and caused injury in his abdominal area. He further deposed that Bittu Ansari assaulted Bablu Ansari with fists around his abdominal area. PW5-Shamim Hussain deposed in the Court that around 9:00 PM in the night of 20th November 2012 he alongwith Bablu Ansari protested to making of phone calls by Raja Ansari whereupon he threatened him and entered his house carrying a Bhujali. PW5 has spoken about assault by Raja Ansari with a Bhujali over abdomen of Bablu Ansari. He also made allegation of Bittu Ansari giving fist blows around the abdomen of Bablu Ansari. As PW6, Bablu Ansari who is the victim and informant of this case deposed in the Court that Raja Ansari inflicted three Bhujali blows on his person which caused injuries over his hand and in the abdomen. He further deposed that Raja Ansari instigated Bittu Ansari saying that he should be killed. 12. Section 34 of the Indian Penal Code which embodies the principle of vicarious liability envisages sharing of the common intention by all. He further deposed that Raja Ansari instigated Bittu Ansari saying that he should be killed. 12. Section 34 of the Indian Penal Code which embodies the principle of vicarious liability envisages sharing of the common intention by all. Merely because it is shown that all the accused persons carried the same intention but independently of each other it is not enough to attract application of section 34 of the Indian Penal Code (refer “Pandurang v. State of Hyderabad” AIR 1955 SC 216 ). In “Girija Shankar v. State of U.P.” (2004) 3 SCC 793 the Hon'ble Supreme Court has observed, thus: “9.…In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of the moment; but it must necessarily be before the commission of the crime….” 13. While assault by Bittu Ansari with fist does not reflect his sharing of common intention with Raja Ansari to commit murder of Bablu Ansari, his conviction under section 307 read with section 34 of the Indian Penal Code cannot sustain and is, accordingly, set aside. The Sessions Judge himself formed an opinion that the offence under section 326 read with section 34 of the Indian Penal Code is not established against Raja Ansari and Bittu Ansari and, therefore, what remains against Bittu Ansari is his conviction under section 323/34 of the Indian Penal Code. As we have seen that the assault by Bittu Ansari with fist is established by the prosecution, the conviction and sentence awarded to him under section 323/34 of the Indian Penal Code are affirmed. 14. Mr. Pankaj Kumar, the learned Public Prosecutor has apprised this Court that Bittu Ansari has undergone sentence of 4 months 18 days which, with remission, shall be more than six months. 15. Bittu Ansari was released on bail by virtue of the order dated 10 th October 2014 passed by this Court. Upon setting aside of his conviction under section 307/34 of the Indian Penal Code, he shall be discharged of liability of the bail bonds furnished by him. 16. 15. Bittu Ansari was released on bail by virtue of the order dated 10 th October 2014 passed by this Court. Upon setting aside of his conviction under section 307/34 of the Indian Penal Code, he shall be discharged of liability of the bail bonds furnished by him. 16. The offence under section 307 of the Indian Penal Code envisages that the accused should have intention or knowledge which in the circumstances of the case would demonstrate that his act would have caused death and he would have been guilty of murder. 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. Attempts by life convicts.—When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death. 18. The fundamental distinction between the offence punishable under section 307 of the Indian Penal Code and Section 302 of the Indian Penal Code is that the offence under section 307 of the Indian Penal Code is not culpable homicide; the victim finally survives. What is required by the prosecution to establish a charge under section 307 of the Indian Penal Code is that the accused had requisite intention or knowledge that if successfully executed the alleged act would have caused death. In “Hari Singh v. Sukhbir Singh” (1988) 4 SCC 551 the Supreme Court has observed as under: “7. … Under Section 307 IPC what the court has to see is, whether the act irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in that section. The intention or knowledge of the accused must be such as is necessary to constitute murder. Without this ingredient being established, there can be no offence of “attempt to murder”. Under Section 307 the intention precedes the act attributed to accused. The intention or knowledge of the accused must be such as is necessary to constitute murder. Without this ingredient being established, there can be no offence of “attempt to murder”. Under Section 307 the intention precedes the act attributed to accused. Therefore, the intention is to be gathered from all circumstances, and not merely from the consequences that ensue. The nature of the weapon used, manner in which it is used, motive for the crime, severity of the blow, the part of the body where the injury is inflicted are some of the factors that may be taken into consideration to determine the intention. ….” 19. Raja Ansari is the assailant who caused grievous injury over the abdomen of Bablu Ansari. As PW1, Dr. Nandan Kumar who first clinically examined Bablu Ansari on 20th November, 2012 at Lifeline Hospital found the following injuries on his person: (i) Incised wound over left elbow 3”x ½”x ½”and above the elbow 4” x ½” x ½” (ii) Incised wound above umbilicus 2 ½”x ½” x deep penetrating abdomen cavity. 20. Thereafter, Bablu Ansari was taken for better treatment to Bokaro General Hospital where he was examined by Dr. A.K. Mishra on 21st November, 2012. As PW 9, Dr. A.K. Mishra tendered evidence in the Court that he observed sutured wound of the size of 4” over left sub-costal area of the anterior abdomen of Bablu Ansari with ecchymosis around the right side of the chest wall. He found the following injuries on the person of Bablu Ansari: (i) Sutured wound of size of 4”at left sub-costal area of anterior abdomen. (ii) Ecchymosis on right side of chest wall. (iii) On operation on same day, there was hemoperitoneum and laceration of liver. 21. PW1 opined that the injuries are grievous in nature. PW9 also rendered an opinion that Bablu Ansari suffered grievous injury caused by sharp object. 22. This is the prosecution case that PW 3 and PW 5 or for that matter PW 6 had no previous enmity with Raja Ansari (vide paragraph no. 3 of the cross-examination of PW6). There was no repeated assault by Raja Ansari over the abdomen of Bablu Ansari. This is also not emerging from the testimony of prosecution witnesses that Raja Ansari caused injuries to Bablu Ansari with an intention to murder. 3 of the cross-examination of PW6). There was no repeated assault by Raja Ansari over the abdomen of Bablu Ansari. This is also not emerging from the testimony of prosecution witnesses that Raja Ansari caused injuries to Bablu Ansari with an intention to murder. The assault around abdominal area of a person shall no doubt be very serious and life threatening but to convict an accused under section 307 of the Indian Penal Code the prosecution must establish that the accused had requisite intention as envisaged under section 307 of the Indian Penal Code. 23. Having regard to the materials laid in the trial, we hold that the prosecution failed to establish the charge under section 307 of the Indian Penal Code against Raja Ansari and, accordingly, his conviction for the said charge is set aside. 24. Section 325 of the Indian Penal Code provides punishment for voluntarily causing grievous injury. The injury of the size of 2 ½” x ½” over the abdomen of Bablu Ansari is definitely grievous in nature. Such injury has been caused voluntarily but not with an intention to cause murder. Therefore, Raja Ansari is convicted and sentenced to RI for 3 years under section 325 of the Indian Penal Code. 25. Mr. Pankaj Kumar, the learned Public Prosecutor has stated that Raja Ansari has already undergone sentence of 3 years 21 days. 26. By virtue of the order dated 11th December 2015 passed by this Court, Raja Ansari was released on bail. Upon setting aside of his conviction under section 307/34 of the Indian Penal Code, Raja Ansari shall be discharged of liability of the bail bonds furnished by him. 27. Criminal Appeal (DB) No.351 of 2014 Criminal Appeal (DB) No.423 of 2014 are allowed in the aforesaid manner and to the aforesaid extent. 28. Let the lower Court records be transmitted to the Court concerned, forthwith. 29. Let a copy of the Judgment be transmitted to the Court concerned through FAX.