1. The appellants, who are accused in S.C.217 of 2003 on the file of the Additional Sessions Judge, Kottayam (Fast Track)-II, challenge the judgment of conviction under Section 308 and 326 I.P.C. and 324 I.P.C. The 1st appellant was sentenced to rigorous imprisonment for four years each u/s.308 & 326 I.P.C. and to pay a fine of Rs.4,000/- each in default, simple imprisonment for two months each. The 2nd appellant was sentenced to rigorous imprisonment for two years and to pay fine of Rs.1,000/- u/s.324 I.P.C., in default simple imprisonment for one month. Being aggrieved by that judgment, the first and second accused preferred this appeal.

2. The prosecution case is that on 5.1.2003 at 9.30 pm, the accused with the common intention of committing culpable homicide voluntarily caused grievous hurt, the first accused stabbed PW2 with MO1 knife, the second and third accused pelted stones towards PW2, first accused again stabbed PW1, PW3 and PW4 with MO1, as a result, PW2 sustained injury on his chest, PW3 sustained injury on the right shoulder, abdomen and right cheek, PW4 sustained injury on the right abdomen, left wrist and on head, the third accused hit on the head of PW5, with a stick on the Kannimala-Koratty road which is on the southern side of the house of PW7, Door No.17/103 (A) of Mundakkayam grama panchayat. In this incident, Mundakkayam Police registered a Crime No.5 of 2003 and after completing investigation, Sub Inspector of Police, Mundakkayam laid charge before Judicial First Class Magistrate-I, Kanjirappilly, subsequently, the case was committed to Sessions Court.

3. During trial, prosecution examined PW1 to PW13 and marked Ext.P1 to P11 as documentary evidence. Mo1 knife was marked as material object. The incriminating circumstances brought out in evidence were denied by the accused while questioning them. They were also heard under Section 232 Cr.P.C. Accused examined DW1 and DW2 and marked Exts.D1 to D6 in support of their defence. Trial court convicted A1 under Section 308 and 326 I.P.C. and convicted the second accused under Section 324 I.P.C. and acquitted the third accused. The trial court found that no offence under Section 34 I.P.C. has been proved against the accused.

4. The learned counsel appearing for the appellants contended that there was no evidence to show that the second appellant pelted stone towards PW2 and the witnesses present there never saw the pelting of stone towards PW2 and there is no corresponding medical evidence to prove such overt act. A reading of evidence shows that A2 was arrayed as an accused by an after thought. When there is no medical evidence, the second appellant is entitled to get benefit of doubt. The first appellant was 65 years on the date of conviction and is seeking leniency in sentence.

5. As against the above submission, the learned Public Prosecutor contended that the injured are the eye witnesses and their evidence is wholly reliable, which is corroborating the prosecution case. There were only minor discrepancies in their evidence, which is not a ground to discard their evidence in total.

6. The crucial question to be considered in this case is whether the prosecution has proved the offence of attempt to commit culpable homicide beyond reasonable doubt. For constituting an offence u/s.308 I.P.C., prosecution has to prove firstly that the accused did the act. Secondly, he did the act with the intention or knowledge by such act, if he by that act causes death, he would be guilty of culpable homicide not amounting to murder. The evidence of PW1 shows that on 5.1.2003 at 9.30 pm, he heard the loud voice of his brother (PW2) from Kannimala-Koratty road, immediately he reached there at that time there was an altercation between PW2 and PW3. By this time, PW2 and one Santhosh (brother-in-law of PW1) proceeded to his house, A1 suddenly stabbed PW2 on the left armpit with MO1 knife, A2 and A3 standing on the side of the road pelted stones and one stone hit on the left