JUDGMENT :

SANJAY KUMAR JAISWAL, J.

1. The present appeal arises out of the impugned judgment of conviction and order of sentence dated 18.11.2003 passed by the learned Sessions Judge, Raipur (C.G.) in S.T. No. 185/2003 whereby, the learned Sessions Judge, convicted the appellant and sentenced him as under:

2. The prosecution story, in brief, is that on the date of the incident i.e. 18.03.2003, in the afternoon, the complainant-Rajendra Kumar @ Sanny Dhruv was going to take betel, at that time the accused/appellant made a quarrel with the complainant and assaulted on his back and hand with the help of knife with the intention to kill him on account of previous enmity. On the spot, police came and caught the appellant. The complainant was taken to the hospital from the spot. At the hospital, Rajendra Dhruv was examined by Dr. S. Bose and opined to send him to the surgery department. At Dr. Bheem Rao Ambedkar Hospital, Sub-Inspector/Ganesh Ram Sidar registered Dehati Nalsi and on the basis of that FIR was registered and the investigation was carried out. A knife has been seized from the appellant/accused. Plain and blood-stained soil has been collected from the spot. Shirt and paint having blood stains of the accused were seized from the accused. A spot map was prepared and the seized knife was sent for chemical examination, after examination of the knife Dr. S. Bose opined that the injury caused to Rajendra Dhruv may be occurred with the said knife. The complainant was admitted for treatment at Dr. Bheem Rao Ambedkar Hospital and on 29.03.2003 he was discharged from the said hospital. Evidence of the witnesses was recorded and seized articles were sent to the Forensic Science Laboratory for chemical examination. After completion of the investigation charge sheet was filed before the Judicial Magistrate First Class, Raipur.

3. So as to hold the accused/appellant guilty, the prosecution has examined as many as 7 witnesses. The statement of the accused/appellant was also recorded under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him and pleaded innocence and false implication in the case. The appellant has adduced two witnesses in his defence.

4. After hearing the parties, vide impugned judgment of conviction and order of sentence dated 18.11.2003, learned Sessions Judge has convicted and sentenced the accused/appellant as mentioned in Para-1 of this judgment. Hence, the present appeal.

5. Learned counsel for the appellant submits that the learned trial Court has erred in holding the appellant guilty for the offence punishable under Section 307 of IPC because the case is made out punishable under Section 324 of IPC or Section 308 of IPC. The lower Court has given excess punishment to the appellant. The findings of the trial Court are contrary to the settled law, the learned trial Court has failed to appreciate the evidence adduced by the complainant that he was in an intoxicated condition during the occurrence of the alleged incident. He also submits that the trial Court has failed to appreciate the version of the complainant as the injury had been caused to him from the back side and the complainant could not see who inflicted the injury on him. The judgment of conviction and sentence is perverse to the evidence recorded and deserves to be set aside, therefore, the appeal may be allowed.

6. Per contra, learned counsel appearing for the State, supporting the impugned judgment, opposed the arguments advanced on behalf of the appellant.

7. Heard learned counsel for the parties and perused the material on record including the impugned judgment.

8. The injured Rajendra Dhruv alias Sunny (PW-3) has stated in his court statement that he had sustaine