Charanjit Talwar, J.

( 1 ) THE Additional Sessions Judge, New Delhi, vide his judgmendated July 30, 1974, has convicted the appellant for an offence under Section 326, Indian Penal Code, and sentenced him to undergo rigorous imprisonment for two years and a fine of Rs. 500. 00 in case of default of payment of fine, he has directed the appellant to undergo further rigorous imprisonment for three months.

( 2 ) THE appellant was challanged to stand his trial under Section 307, Indian Penal Code. The learned Trial Court found that as the prosecution had failed to prove the intention of the accused to murder the complainant, Jitender Pal Singh (Public Witness 9), the offence under Section 307, Indian Penal Code, was not made out. Instead, it was held that as the prosecution had established that the appellant had caused grievous hurt to Jitender Pal Singh with a sharp edged weapon, the offence fell under Section 326, Indian Penal Code. Accordingly, the appellant was convicted and sentenced as noted above.

( 3 ) BRIEFLY stated, the prosecution case was that the injured Jitender Pal Singh (Public Witness 9) and the accused were studying in North India College, a private coaching institution. The accused was studying for Matriculation Examination, while the complainant was studying for Higher Secondary Board Examination. According to the injured, the accused used to tease him. He had reported the accused to the Principal and on that report the accused was turned out of the institution. On November 25, 1972 at about 8. 30 p. m. when Public Witness PW9 was proceedings towards Andrewsganj bus stop, the accused met him near that bus stop and waylaid him on the pretext of having some private conversation. Afterwalking with him for about 10 or 15 paces, it is alleged, the accused took out a knief and gave him (Public Witness 9) a knife blow on the left side of the chest. Thereafter, the accused made good his escape. PW5 Amarjit Singh, who had witnessed the occurrence, was sent by the injured to his (Public Witness 9 s) parents house to inform them about the incident. Another boy, Sanjeev Kumar, who had reached the spot immediately after the stabbing incident, took the injured in a taxi to Safdarjang Hospital where he was got admitted. On examination Dr. D. N. Taneja (Public Witness 7) found the following injuries which were recorded in the medico-legal report Exhibit PW7/a:

"1. Incised wound in left upper part of chest inanterior axillary line 1"x" x? Sharp margins and curved. 2. Incised wound "x"x" on right elbow posteriorily. "x-rays of the chest and abdomen of Jitenderpal Singh were taken on November 25, 1972 which are found to be of poor quality by Dr. D. N. Taneja (Public Witness 7 ). Again X-rays were taken on December 6, 1972 which showed that the injured had received no bone injury. This doctor, thereafter, opined the injury to be grievous, caused by a sharp edged weapon.

( 4 ) BEFORE I analyse the evidence produced by the prosecution. I must note that the learned Trial Court s finding that during the investigation the police had applied for identification of the accused by Shri Amarjit Singh (PW5) under the supervision of a judicial Magistrate wherein the accused was correctly identified by the said witness, is not borne out from the record of this case. Mr. K. K. Sharma, learned counsel for the State, has not been able to support this finding. Assistant Sub-Inspector Gurdas Ram (Public Witness 10) who had investigated the case, merely stated that "identification parade of the accused was held and he was correctly identified by Amarjit Singh. " The said witness Amarjit Singh (Public Witness 5) in the last sentence of this examination-in-chief has stated:

"i identified the accused in jail before a Magistrate". It is surprising that the judicial Magistrate, Shri Mohinder Pal, who has been referred to in Question No. 7, in the statement of the accused under Section 313 of the Code of Criminal Procedure, was not produced by the prosecutio

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