B.C. Chakrabarti, J.
1. This revisional application is directed against an appellate order passed by the learned Additional Sessions Judge. Murshidabad in Criminal Appeal No. 29 of 1981 confirming the order of conviction and sentence dated 5-5-1981 passed in Sessions Trial No. 2 of Feb. 1981 under Section 307/34 .I. P. C.
2. Four persons including the present petitioners stood trial on a charge under Section 307/34, I. P. C. The petitioners were convicted while the other two were found not guilty of the charge. The prosecution case in brief was as follows:
On 11-11-1979 at about 3-00 P- m. Dobiruddin Mondal along with his sons Nasiruddin and Amiruddin were coming towards their house with a cart load of jute sticks from the canal side. When they reached near the house of P. W. Anisur Rahaman the petitioners along with two others intercepted and petitioner No. 1 Sadeque challenged Amiruddin why he had abused petitioner No. 2. Amiruddin denied the charge and thereafter Amiruddin and Dobiruddin were assaulted with lathi and gnaras as a result whereof they sustained bleeding injuries on the head and shoulder. Nasiruddin who was with the party of Dobiruddin went to the police station and lodged a complaint. Dobiruddin and Amiruddin were taken to the Primary Health Centre where they were confined in hospital for 20 days. Police after completion of investigation submitted charge-sheet against the two petitioners and the two others who have since been acquitted.
3. The defence pleaded that the occurrence did not take place at the site mentioned and in the manner alleged and that there was a sort of a free fight between the parties in course of which the petitioners also sustained injuries.
4. At the trial before the learned Assistant Sessions Judge ll witnesses were examined on behalf of the prosecution. Of them P. Ws. 1. 2. 3 and 5 are eye witnesses. P. Ws. 1 and 2 Dobiruddin and Amiruddin are the victims of assault. P. W. 3 Nasiruddin is the informant, P. W. 5 Anisur Rahaman is the person in front of whose house the occurrence took place. The other important witness was the Doctor of the Health Centre who examined the victims at Sagarpara Subsidiary Health Centre. He found one incised wound 6' x 4' x l' over the upper surface of the left shoulderioint. one vertically incised wound 6' x 4' x 21/2' obliquely bone deep over the right side of the head on the person of Dobiruddin. The following injuries were found on the person of Amiruddin :- (1) One incised wound 4' x l' x 1 1/2' over the middle of the spinal column exposing the bone; (21 one incised wound l 1/2' x l/3' x bone deep over the left scapular region; (3) one incised looking wound 21/2' x 1/6' x 1/4' over the occipital region of the head; (4) two lacerated wounds - one over the right little finger and another over the left little finger. In the opinion of the Doctor the incised wounds could be caused by a gnaras and nature of the injuries was grievous. On the side of the petitioners one Doctor was examined who found some superficial and simple injuries on the two petitioners. The doctor, D. W. 1 conceded that the injuries might be cause by friendly hands.
5. The defence plea of a free fight and the plea of self defence was disbelieved by the trial Court. It was held that the materials on record were not enough to indicate preponderance of probability in favour of the plea. The learned Judge accepted the evidence adduced by the proscution as trustworthy and found the petitioners guilty. In regard to the other two accused the evidence was insufficient. The defence also took a plea at the close of the trial that the petitioner Sadeque was entitled to be dealt with under Section 6 of the Probation of Offenders Act. This plea was overruled and both the petitioners having been found guilty under Section 307/34, I.P.C. were sentenced to suffer R. I. for four years each. They were also sentenced to pay a fine of Rs. 2,000/- each in default to suffer R. I. for one year more. There was a direction that if the fine be realised half of it should go to the two victims in equal shares.
6. The petitioners preferred an appeal and the two points taken in the appeal were that the witnesses were partisan witnesses and the learned Judge went wrong in convicting the petitioners by relying upon such witnesses. The other point taken was that the offence, if any. was punishable only under Section 324, I. P. C. since nothing was available on the record to indicate that the injuries inflicted might endanger the life of the two victims. The learned lower Appellate Court considered the two points urged but having regard to the evidence on record overruled both the contentions. He however felt that the amount of fine imposed by the trial Court was rather heavy. While affirming the substantive sentence of imprisonment the appellate Court reduced the sentence of fine to Rs. 500/- each in default R. I. for 3 months each. Being aggrieved the petitioners moved the present revisional application and obtained the rule.
7. This being a revisional application the scope of enquiry is limited to the question whether there has been a manifest error of law or procedure resulting in flagrant miscarriage of justice the two Courts below having concurrently found the petitioners guilty of the offence alleged.
8. Mr. Banerjee appearing on behalf of the petitioners was conscious of this position and did not therefore take us through the entire evidence of the case except to those alone which were necessary for the purpose of the points formulated by him in support of the petition. The points urged by him were (1) non-examination of material witnesses, (2) the witnesses relied upon were partisan witnesses; (3) the offence established by the evidence, if any, is of a much lesser magnitude than the offence under Section 307, I. P. C. and (4) that at least one of the petitioners namely. Sadeque being less than 21 years of age should have been dealt with under Section 6 of the Probation of Offenders Act instead of being sentenced to imprisonment.
9. In regard to the first point Mr. Banerji drew our attention to the evidence of p. W. 3 who stated that Balaram Majumdar. Fainuddin and others assembled at the spot on hearing shouts. Mr. Banerji complained that the prosecution in fact, intended to examine these witness and filed memo of attendance on their behalf on two successive dates. They were, however, not subsequently examined and it is the grievance of the petitioners that this was done with the ulterior object of withholding inconvenient witnesses. The record shows that petitions were filed stating the reason why the prosesution was disinclined to examine those two persons. It was stated that the witnesses had been gained over.
10. In the case of Dalbir Kaur v. State of Punjab : 1977CriLJ273 it has been observed that there is no duty on the prosecution to examine witnesses who might have been gained over by the accused. In that case the Public Prosecutor gave a statement that the witnesses concerned were either relatives of the accused or had been gained over by the accused and were therefore, not likely to speak the truth In the context of this statement it was observed that it could not be said that the witnesses were deliberately withheld or unfairly kept back. Similar is the position in the case before us and that being so no adverse inference could be drawn against the prosecution for non-examination of those witnesses.
11. The next point urged on behalf of the petitioners is that the witnesses examined in this case are the two victims and their son and another namely, P. W. 5 who is a partisan witness. P. W. 5 is characterized as a partisan witness because it was elicited in evidence that the father of the accused petitioners had filed a suit for partition against p. W. 5 which was then pending in the local Subordinate Judge's Court. The fact that a partition suit has been filed by the father of the petitioners against P. W. 5 by itself does not render P. W. 5 a partisan witness or a witness interested in the prosecution. That apart there may be cases where the witnesses to an occurrence are divided by reason of allegiance to one or other faction in the village and that by itself cannot be a sole ground for rejecting their evidence. In the case of Masalti v. State of U. P. : 8SCR133 the Supreme Court has cautioned that while dealing with such witnesses courts have to be particularly careful in assessing the evidence or the probative value thereof but the mechanical rejection of such evidence on the sole ground that he is partisan witness would invariably lead to failure of justice. In the instant case both the Courts below have found the evidence to be trustworthy and reliable. We are disinclined to reject the testimony of P. W. 5 on the only ground that he might have some animus because of the partition suit pending against him. This point also, therefore, is not sustainable.
12. The next point urged on behalf of the petitioners is that the evidence is insufficient to bring home a charge under Section 307. I. P. C. Mr. Banerjee argued that the Doctor nowhere said in his evidence that the injuries were such as might endanger human life. He also argued that even though some of the injuries were incised in nature, the Doctor of the Subsidiary Health Centre did not consider it necessary to refer the cases to the Sadar Hospital by reason of the gravity of the injuries. It was. therefore, contended that no inference as to the intention of the assailants to cause the death can be inferred from the nature of the injuries actually sustained. In a case under Section 307, I. P. C. it is not always necessary that the injury by itself must be sufficient to endanger human life. There may be cases of attempted murder without any evidence of external injuries at all. for example, a case where the assailant takes up a gun, aims it towards the victim but misses the target. Therefore, the extent of injuries is not always the criterion although it may sometime afford some reasonable basis for the conclusion to be drawn. In this case we have in evidence that the victims were assaulted with lathi and gnaras which is a sort of an agricultural implement primarily meant for cutting grass. No doubt, it is an instrument of cutting. The incident occurred while the victims were returning home on an allegation that one of the victims had previously abused one of the assailants in filthy terms. In course of the altercation the lathi and the gnaras which were with the accused were used. A part of the prosecution story is that the other two accused instigated the petitioners to finish the victims but there is no evidence that even thereafter any attempt was made to do away with the lives of the victim. The state of the petitioners' mind has to be deduced from the surrounding circumstances. The existence of a motive to cause the death would also be a relevant circumstance. Here the prosecution has led no evidence from which it could be inferred that the petitioners had a motive to kill the victims. The evidence does not appear to us sufficient to establish with certainty the existence of requisite intention or knowledge to make the offenders liable under Section 307, I.P.C. Such being the position we think the proper section to apply in this case is not Section 307/ 34 but a lesser offence namely. Section 324/34, I. P. C. We find accordingly (See Sarju Prasad v. State of Behar : 1965CriLJ766 .
13. Finally Mr. Banerjee argued that at least one of the petitioners namely, Sadeque could not have been sentenced to imprisonment in view of the provisions of the Probation of Offenders Act. Section 6 imposes restrictions on imprisonment of offenders under 21 years of age. It provides that when any person under 21 years of age is found guilty of having committed an offence punishable with imprisonment (but not imprisonment for life), the Court by which the person is found guilty shall not sentence him to imprisonment unless it is satisfied that having regard to the circumstances of the case including the nature of the offence and the character of the offender, it would not be desirable to deal with him under Section 3 or Section 4. and if the Court passes any sentence of imprisonment on the offender, it shall record its reason for doing so. The plea of the petitioners is founded upon the age of Sadeque as recorded in his statement under Section 313. Cr. P. C. It was only at that stage that it was given out that he was below 21 years of age. It was not suggested at any stage prior to that so that the prosecution might have had some opportunity of either contesting or conceding the plea. This apart his plea was not even taken before the Lower Appellate Court. Even then Mr. Banerjee argued that the fact having transpired the Court should have taken recourse to the provisions of the Probation of Offenders Act and should not have sentenced the petitioner to imprisonment. In support of the contention that the power may be exercised even by a Court of Revision reliance was placed in the case of Ramji Misir v. State of Bihar : AIR1963SC1088 . There it has been held that the Appellate Court or the Court exercising revisionai jurisdiction is empowered not only under Secs. 3 and 4 but also under Section 6 of the probation of Offenders Act. The decision lays down the principle that in an appropriate case a Court of Revision also can exercise the powers. But the question is whether this is one such case where the power should be exercised. Mr. Baner-jee referred to the case of Satyaban v. State of Bihar : 1972CriLJ1042 and the case of Daulatram v. State of Haryana AIR 1972 SC 2434 : 1972 Cri LJ 1517. In support of his contention that Section 6 of the Probation of Offenders Act should have been invoked in this case. Of the two cases referred to in the former there was no dispute that the appellants were below the age of 21 years while in the latter also it was found as a fact that the appellant was less than 21 years of age at the relevant time. In the instant case the question of the age of the appellant was not taken at any stage prior to the stage of examination of the petitioners under Section 313, Cr. P. C. The learned trial Judge having rejected the plea the petitioners did not even urge it before the Lower Appellate Court. In such circumstances we think that it would not be proper for us to deal with the offender under Section 6 of the Act in the circumstances of the case. In the case of Yadurai v. State of U. P. : 1977CriLJ340 it was argued on behalf of the appellants that the appellants 3 and 4 were less than 21 years of age and therefore, they ought to have been given the benefit of the Probation of Offenders Act. This contention was neither taken in the Sessions Court nor in the High Court. Conscious of the position that the Supreme Court has taken the view earlier that in appropriate cases such a contention may be entertained by the Supreme Court for the first time, difficulty was left in so far as there was no credible evidence on the record showing that the appellants were less than 21 years of age except the statement of age given by them in their statement under Section 342 of the Cr. P. C. It was submitted in that case that if the trial Judge doubted the correctness thereof, he could have had the two accused medically examined in order to ascertain their age. The Supreme Court observed 'this seems to us a difficult burden for any trial Judge to undertake. The age given by the two accused in their statement had no special significance in the absence of a proper plea under the Probation of Offenders Act'. No such plea having been taken in the case before us we are not inclined to invoke Section 6 of Probation of Offenders Act in the case of petitioner Sadeque,
14. Upon a consideration of the points urged on behalf of the petitioners the only point of substance appears to be that the offence committed in our view is not an offence punishable under Section 307/34. I. P. C. but an offence of a lesser degree and magnitude namely. Section 324/34, I. P. C. We accordingly find the petitioners not guilty under Section 307/34, I. P. C. but find them guilty under Section 324/34, I. P. C. The sentence necessarily has to be reduced and we direct that the petitioners do suffer R. I. for two years each and to pay a fine of Rs. 300/- each in default to suffer R. I. for one month more. Half of the fine if realised, shall be paid to the two victims Dabiruddin Mondal and Amiruddin Mondal. The revisionai application succeeds to the extent as indicated above. The Rule is thus disposed of.
15. The petitioners do surrender to their Bail Bonds and serve out the remainder of the sentence.
Jitendra Nath Chaudhuri, J.
16. I agree.