IMPORTANT POINT
Where knife blows were given an a sudden scuffle in dark and no blow was on vital organ and the victim survived the offence is not attempt to commit murdered u/s. 307 I.P.C. but an attempt to commit homicide u/s. 308 I.P.C.

ORDER

K. Jayachandra Reddy, J. - The appellant Tukararn Gundu Naik was tried alongwith two others for an offence punishable under Section 307/34 I.P.C. The appellant was also charged under section 307 simpliciter. The trial court acquitted all of them. The state preferred an appeal and it was admitted against the appellant and dismissed against the other two by the High Court. A Division bench of the High Court after having considered the evidence of the prosecution witnesses particularly that of the victim, convicted the appellant under section 307 I.P.C. and sentenced him to undergo five years R.I. Hence the present appeal.

2. The prosecution case is as follows:

A-1 (the appellant herein) and A-2 are the real brothers and A-3 is the son of A-1 and they are residents of Pokhale, Taluka Panhala. The appellant was the Director of the Milk Dairy of Ward Factory and also the Chairman of the Market committee at Kolhapur and political worker. The victim Shivaji Aba, P.W. 8 is also a resident of the same village and used to take active part in the village activities. He was incharge of the Library started by him and others in the village. He also canvassed for some candidates in the elections and in 1967 helped the present appellant but in 1972 worked against the appellant. As a result of this, the relations between the appellant and the family of Shivaji Aba were not good. Aba Dnyanu, P.W. 9 the father of P.W. 8, is the police patil of the village. 3. On 13.4.1973 at about 6 P.M. Ramajan P.W. 1, met Shivaji Aba, P.W. 8 in the village. P.W. 8 asked P.W. 1 as to why he was frequently visiting the village and also scolded him carrying an axe with him. There was scuffle between the two and P.W. 1 received an injury. He went and reported the matter to A-1. The appellant sent him to the panchayat office and followed him there. Thereafter he sent for the police patil and sent and the sarpanch. Both of them came there. In their presence the appellant asked P.W. 8 why he has assaulted P.W. 1. So saying he slapped Shivaji Aba, P.W. 8 twice P.W. 9 also slapped P.W. 8 when he tried to abuse the appellant Thereafter there was some scuffle between P.W. 8 and A-1 and both of them came in the verandah. P.W. 9 also came to the Verndah. There was appellant inflicted injuries with a knife on P.W. 8. A-2 and A3 are alleged to have hurled stones at P.W. 8. P.W. 8 rushed and took shelter in the house of his aunt. P.W.9 who was informed about the condition of P.W. 8 also come there. He brought a rickshaw and took Shivaji Aba to the police station. Gave a report there and then took him to the Civil Hospital, Kolhapur. P.W. II. also came alongwith them from the village. Shivaji Aba, P.W. 8 was treated in the hospital as an in-patient till 18.8.1973 and thereafter he was discharged. Meanwhile an offence was registered under Section 326 I.P.C. and investigation proceeded. The accused were arrested and the charge-sheet was laid. The accused denied the offence. The appellant in his statement under section 313 Cr. P.C. stated that he was a political worker and that P.W. 8 canvassed again him in the election. He also stated that he was present in Chavadi but he denied having slapped P.W. 8 According to him, he did not step out of the office of the panchayat and he stated that he has been falsely implicated

4. Dr. Khare, P.W. 16 examined P.W. 8 and found four incised injuries which were clean cut on the epigastric region. He admitted the injured into hospital and Dr. Wagle, P.W. 17 attended on the injured P.W. 8 and treated him. The prosecution mainly relied on the evidence of P.W. 8 supported by the medical evidence and corroborated by P.W. 9 and other witnesses. The trial court disbelieved P.W. 8 for the simple reasons that he did not state in the F.I.R. about the presence of P.W. 9. As a matter of fact, the appellant himself did not dispute his presence in the village panchayat office at the time of the incident. The High Court has rightly held that the reasons