( 1 ) ADMIT. Mr. S. T. Mehta, Addl. PP. waives service of notice.

( 2 ) PRESENT appeal is directed against the order of conviction of the present appellant for the offence u/sec. 307 IPC and sentence of four years RI and fine of Rs. 500/- i. d. RI for one month passed by the learned Addl. Sessions Judge, sabarkantha at Himatnagar on 27-12-1990 in Sessions Case No. 86 of 1989.

( 3 ) THE short facts of the case can be stated as under : the complainant Ishabehn Veljibhai is residing in the locality in which the present appellant is residing. There is a public water tap. On 24-4-1989 at about 2. 00 p. m. there was some altercation between the wife of the accused-appellant bai Nanda and said Ishabehn and on account of push Nanda had fallen down. On account of that incident Nanda told that her husband was not present, let him come and, thereafter, he would see. 3. 1 On the date of the incident, i. e. 25-4-1989 husband of the complainant, veljibhai was sleeping on the cot outside the home and the complainant and one punjabhai were sitting by the side of the cot. At that time Haribhai was passing from near the house of the complainant. In the meantime appellant came running near the cot and inflicted two knife blows to the complainants husband. One of the blow was on the abdomen and the other one was on the side of the stomach. Attempt was made by Haribhai Motibhai to catch the accused but he ran away by the canal. Therefore the injured was taken to the hospital. 3. 2 The complainant gave complaint and the Investingating Officer registered the offence in the crime register. Thereafter yadi was given for medical certificate and also for recording the dying declaration of the victim, but he was not in a position to give statement. Thereafter statements of the wirnesses were recorded. The clothes of the injured were also attached by making a panchanama. Panchanama of the scene of offence was also made. Thereafter it appears that there was also information given by the accused leading to discovery of the knief. After the charge-sheet was filed in the Court of the Chief Judicial Magistrate by the police the case was committed to the Sessions court for the offence under Section 307 ipc.

( 4 ) THE accused was charged for the said offence as also offence under Section 135 (1) of the Bombay Police Act on account of the aforesaid allegations. The accused pleaded not guilty. After recording the evidence as also further statements of the accused and after hearing the arguments the learned Judge has passed the aforesaid order of conviction and sentence.

( 5 ) MR. M. C. Kapadia, learned Advocate for the appellant has very frankly stated at the outset that he does not challenge the evidence of the witnesses on the point of inflicting injuries by the accused, but he submits that conviction for the offence under Section 307 is not legal and proper. He further submits that it would be an offence under Section 324 and at the most section 326 IPC. He further points out that before the matter came to be admitted today notice was issued to the injured and that said notice is served on him. At the time of issuing the said notice the Court directed the appellant to deposit an amount of Rs. 2,000/- towards the cost of the injured and accordingly he has deposited that amount. Pursuant to the said notice injured Veljibhai remained present and has asked for time for engaging an advocate. Accordingly time was granted and now Mr. I. M. Pandya, learned Advocate appears for him. When the injured remained personally present he pointed out that both the parties are residing in the same loality and that he has to look after the maintenance of the family of the accused-appellant. He has further stated that for maintaining peace between the parties and also in the locality there is already a settlement between the parties.

( 6 ) THERE might be some settlement as stated by the witness. Still however, with a view to verify the same we inquired from the Ad