JUDGMENT :

Ajit Singh, J.

1. Counter-affidavit filed on behalf of State in the Court today is taken on record.

2. Heard learned counsel for the appellant, learned A.G.A. and perused the record.

3. This criminal appeal under Section 374(2) Cr.P.C. has been filed against the judgment and order dated 8.9.2020 passed by learned Additional District and Session Judge, Court No. 5, Hathras in Session Trial No. 351 of 2009 (State vs. Mukesh Kumar) arising out of Case Crime No. 104 of 1998, under Section 308 I.P.C. P.S.-Sasani, District-Hathras, whereby the appellant has been convicted and sentenced for the offence under Section 308 I.P.C. for five years imprisonment and a fine of Rs. 5000/- and in default of payment for five months additional imprisonment.

4. The prosecution story in brief is that on 4.5.1998 at about 6:00 O'clock in the evening the son of the complainant Ravendra Kumar was going towards the canal, then the accused who used to live in his brother-in-law's house, was coming from the opposite side and having seen the complainant's son alone, went back to his house and returned on bicycle with a knife and started assaulting his son with the knife, as a result of which he became unconscious and fell down on the ground. After seeing the incident Manvendra Kumar, son of Surendra Kumar, resident of Sinamai and Kalicharan, son of Vedram ran towards the son of the complainant and saved his son. Thereafter the accused ran away from the spot on his bicycle.

5. At the very outset, learned counsel for the appellant, on instructions, stated that he does not propose to challenge the impugned judgment and order on its merits. He, however, prayed for modification of the order of the sentence for the period already undergone by the appellant.

6. In furtherance to his submission, the learned counsel for the accused-appellant submits that the act of the appellant was not intentional. He next submits that the injured PW-1 in his examination-in-chief has stated that some altercation took place between him and the accused and it arose due to the collision met to the injured by the accused's bicycle as a result of which the injured fell down on the ground when he fell down on the ground from his bicycle the accused after taking out the knife from his pocket and given repeated knife blow, causing injuries on the chest, neck and other part of the body. He in his cross-examination has also stated that he was attacked from back side and he had not seen the attacker on the spot. He next submits that the doctor in his report has specifically mentioned that the injury sustained by the injured was simple in nature and hence the offence under Section 308 I.P.C. is not made out against the appellant. He also submits that on the question of legality of sentence he is not pressing this appeal and only pressing on the quantum of sentence and he has prayed for taking lenient view considering the age of the accused and his age related ailments.

7. The short question which arises for consideration is whether the offence committed by the appellant falls within the ambit of Section 308 or 324 of Indian Penal Code.

8. Section 308 of Indian Penal code provides that ''whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty or culpable homicide not amounting to murder'' and in case any hurt is caused to any person by such act, then ''the accused is liable to be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.''

9. Therefore the secure conviction under Section 308 I.P.C. the prosecution must prove that the accused had requisite 'intention' or 'knowledge' to cause culpable homicide, which in turn can be ascertained from the actual injury as well as from other surrounding circumstances.

10. Section 324 I.P.C. on the other hand, criminalizes willful infliction of injuries on another and states that whoever ''voluntarily caus