GARG, J. - (1.) THIS appeal has been filed by the accused appellants against the judgment and order dated 19. 3. 2001 passed by the learned Sessions Judge, Pratapgarh in Sessions Case No. 84/2000 by which he convicted and sentenced the accused appellants in the following manner:- Name of accused appellants Convicted u/sec. Sentence awarded 1. Imran @ Chunnu Khan 307 IPC Ten years' RI and to pay fine of Rs. 1000/- in default of payment of fine, to further undergo imprisonment for one month. 324 IPC Three years RI. 341 IPC One month SI. 2 Valli Ullah Khan 307/34 IPC Ten years' RI and to pay fine of Rs. 1000/- in default of payment of fine, to further undergo imprisonment for one month. 324/34 IPC Three years RI. 341 IPC One month SI. All the above substantive sentences were ordered to run concurrently.
(2.) THE facts giving rise to this appeal, in short, are as follows:- On 28. 4. 2000 at about 12. 50 p. m. , P. W. 1 Gebilal gave a Parchabayan Ex. P/3 to P. W. 2 Amar Singh, SHO, Police Station, Pratapgarh in the hospital stating that on 28. 4. 2000 at about 11. 30 a. m. , he was going from his house to another house on foot and when he reached in front of the house of Ratan Dangi, a motor cycle came in front of him and the same was being driven by the accused appellant no. 1 Valli Ullah Khan and behind him, his brother accused appellant No. 2 Imran was sitting and seeing him both of them stated that he be killed today. It was further stated by P. W. 1 Gebilal that hearing these words, he tried to run away, but they caughthold him and put him on the ground and P. W. 1 Gebilal made hue and cry and told that he be not killed and upon this, both accused appellants told that since he had given evidence against them in a murder case of Bansi, therefore, they would take revenge today. It was further stated by P. W. 1 Gebilal that after saying this, the accused appellant No. 2 Imran with intention to murder him gave so many blows on his person by knife and at that time, the accused appellant no. 1 Valli Ullah Khan caughthold him. It was further stated by P. W. 1 Gebilal that his son P. W. 6 Ballu and brother P. W. 4 Kanhaiyalal were also there and in front of the house of P. W. 16 Champalal, one other motor-cycle was also standing. P. W. 1 Gebilal has further stated that as a result of giving so many blows by knife by the accused appellant no. 2 Imran, he received injuries on his chest, hands, back, right thigh etc. P. W. 1 Gebilal has further stated that this incident was also witnesses by P. W. 3 Torilal and P. W. 8 Jagdish. On this Parchabayan Ex. P/3, police chalked out regular FIR Ex. P/18 and started investigation. Since P. W. 1 Gebilal was in injured condition, therefore, at about 1. 00 p. m. on 28. 4. 2000, his statement Ex. P/1 purported to be under Section 32 (1) of the Indian Evidence Act was also recorded by P. W. 2 Amar Singh Rathore and contents of this statement Ex. P/1 and Parchabayan Ex. P/3 are similar and, therefore, contents of Ex. P/1 are not being reproduced here again. During investigation, P. W. 1 Gebilal was got medically examined by P. W. 7 Dr. Vimal Chand and his injury report is Ex. P/2, which shows that he received as many as 12 incised wounds, out of which, for injures no. 1 & 2, P. W. 7 Dr. Vimal Chand advised X-ray and the X- ray report is Ex. P/11 and after seeing the X-ray report Ex. P/11, P. W. 7 Dr. Vimal Chand opined that there was no bone injury on the person of P. W. 1 Gebilal. The accused appellant no. 2 Imran was arrested on 28. 4. 2000 through arrest memo Ex. P/20 and on 29. 4. 2000 he gave information about recovery of knife, which was recorded by P. W. 15 Jaswant Singh in Ex. P/21 and in consequence of that information, before P. W. 9 Bahadurlal and P. W. 11 Bharatlal, knife was recovered through Ex. P/12. The accused appellant No. 1 Valli Ullah Khan was arrested through arrest memo Ex. P/23. After usual investigation, police submitted challan against the accused appellants in the Court of Magistrate, from where the case was committed to the Court of Session. On 14. 9. 2000, the learned Sessions Judge, Pratapgarh framed charges for the offence under Sections 307, 324 and 341 against the accused appellant No. 2 Imran and for the offence under Sections 307/34, 324/34 and 341 IPC against the accused appellant No. 1 Valli Ullah Khan. The charges were read over and explained to the accused appellants. They denied the charges and claimed trial. During trial, the prosecution in support of its case examined as many as 17 witnesses and got exhibited some documents. Thereafter, statements of the accused appellants under Section 313 Cr. P. C. were recorded. In defence, three witnesses were produced by the accused appellants. After conclusion of trial, the learned Sessions Judge, Pratapgarh through his judgment and order dated 19. 3. 2001 convicted and sentenced the present accused appellants in the manner as indicated above holding inter-alia:- 1. That the case of the prosecution is not only based on the evidence of PW6 Balu and PW4 Kanhaiyalal, who are respectively son and brother of PW1 Gebilal, but from the statements of PW1 Gebilal and another independent witness, namely, PW8 Jagdish, the case of the prosecution is well proved and the case of the prosecution is further corroborated by the medical evidence. 2. That motive is apparent in the present case for the accused appellants to cause injuries to PW1 Gebilal. 3. That since as many as 12 blows given to P. W. 1 Gebilal by the accused appellant No. 2 Imran, therefore, from this fact, intention can be gathered and thus, the learned Sessions Judge came to the conclusion that it was a case of attempt to commit murder of P. W. 1 Gebilal by both the accused appellants. 4. That prosecution has proved its case beyond all reasonable doubts against the accused no. 2 Imran for the offence under Sections 307, 324 and 341 IPC and against accused appellant No. 1 Valli Ullah Khan for the offence under Sections 307/34, 324/34 and 341 IPC. Aggrieved from the said judgment and order dt. 19. 3. 2001 passed by the learned Sessions Judge, Pratapgarh, this appeal has been filed by the accused appellants. In this appeal, the learned counsel appearing for the accused appellants has made the following submissions:- (1) That since all the injuries of P. W. 1 Gebilal are found simple in nature, therefore, no case for the offence under Section 307 IPC is made out and at the most, offence cannot travel beyond the scope of Section 324 IPC. (2) That if the Court comes to the conclusion that offence u/sec. 324 IPC is proved in place of 307 IPC, then the accused appellants may be sentenced to the period already undergone by them. On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Sessions Judge, Pratapgarh. I have heard the learned counsel for the accused appellants and the learned Public Prosecutor and perused the record of the case.
(3.) TO appreciate the above contention, first the medical evidence has to be seen, which is found in the statement of PW7 Vimal Chand. P. W. 7 Vimal Chand states in his statement that on 28. 4. 2000 he was Medical Jurist in the District Hospital, Pratapgarh and on the police requisition, he examined P. W. 1 Gebilal and found following injuries on his person:- (1) Incised wound (bleeding) 1/2" x 1/4" x Rib depth - Right infra clavicular region of chest obliquely. By sharp edge weapon. (2) Incised would (bleeding) 1-1/2" x 1/2" x Rib depth - Right parasterine area transversely at 4th I. C. S. By sharp edge weapon. (3) Incised wound 1/4" x 1/4" x skin deep with one long abrasion - Left infra clavicular area of chest, transversely. Simple caused by sharp edged weapon. (4) Incised wound 1-1/2" x 1" x muscle deep Transversely over upper end of right thigh laterally. Simple caused by sharp edged weapon. (5) Incised wound 1/2" x 1/2" x muscle deep bleeding - Left chest lateral side to nipple at out axillary fold transversely. Simple caused by sharp edged weapon. (6) Incised wound 1/2" x 1/4" x muscle deep Left lower costal region of chest. Obliquely near epigastrium. Simple caused by sharp edged weapon. (7) Incised wound 3/4" x 1/4" x muscle deep (bleeding ). Transversely at upper 1/3rd of post aspect of left forearm laterally. Simple caused by sharp edged weapon. (8) Incised wound 1" x 1/2" x muscle deep (bleeding) - Posteriorly at medial aspect of upper 1/3rd of left forearm, vertically. Simple caused by sharp edged weapon. (9) Incised wound 1" x 1/4" x muscle deep (bleeding) - Obliquely at posterior aspect of right forearm, middle 1/3rd. Simple caused by sharp edged weapon. (10) Incised wound 1" x 1/4" x muscle deep (bleeding) - Obliquely at anterior aspect of lower 1/3rd of Right forearm. Simple caused by sharp edged weapon. (11) Incised wound 1/2" x 1/8" x skin deep - Over infra scapular region right side. Simple caused by sharp edged weapon. (12) Incised wound 1/2" x 1/8" x skin deep- over upper part of right gluteal region. Simple caused by sharp edged weapon. He has further stated that all the injuries were caused by sharp edged weapon and for injuries No. 1 and 2, he advised X-ray and after seeing X-ray report Ex. P/11, he found that the said injuries No. 1 and 2 were also simple and injuries No. 1, 2 and 3 were on the chest. He has proved the injury report Ex. P/2. Thus, from the statement of P. W. 7 Vimal Chand, it is well proved that P. W. 1 Gebilal received as many as 12 injuries by sharp edged weapon and the same were found on chest, forearm, thigh etc. ;