Rajendra Babu, J. - (1.)Leave granted.
(2.)On being convicted under Section 307 of the Penal Code (for shortIPC) and sentenced to undergo rigorous imprisonment for a period of five yearsthe appellant preferred an appeal. The High Court held that the conviction of theappellant should be under Section 326 IPC and not 307 IPC and the sentencewas modified to 3 years rigorous imprisonment. In reaching this conclusion, theHigh Court, after analysing the evidence, held as under:-
"...that appellant Sattan Sahani along with other co-accused formed anunlawful assembly, entered into the house of the informant and assaultedthe injured witnesses including PW 1, Malhu Shahani. Though Malhuwas given Bhale blow in his abdomen by appellant No. 3, Sattan Sahanicausing penetrating wound, but it appears that he had no intention to killhim because he had given only one blow. As such, offence attractsconviction under Section 326 of the Code for voluntarily causing grievoushurt by dangerous weapon to P.W. 1, Malhu Shahani."
The medical evidence in the case is as per the version put forth by Dr. JaidharPrasad Jha, P.W. 10. He stated that on 1.3.1983 at 4 a.m. he examined MalhuShahni and found one penetrating wound 1/2" x 1/10" (depth not probed) on theupper part of the abdomen on midline. He also found one incised wound 1/2" x2/10" into skin deep on the outer side of left eye of Malhu. He also foundswelling 4" x 3" on left thigh and swelling 2" x 1" on left upper arm of Malhu.He opined that the penetrating wound was caused by sharp pointed weapon andincised wound was caused by sharp cutting weapon and the swelling wascaused by hard and blunt substance and the age of the injuries was within 12hours.
(3.)It is now contended before us that the appellant had inflicted only oneblow in the spur of the moment of Malhu Shahani in the middle of the abdomen;that the injury caused was only 1/2" x 1/10" (depth not probed) on the middle ofthe abdomen and thus did not affect any vital organ of the injured person nor didit impair the functioning of the injured person in any manner.