( 1. ) APPELLANT has filed this appeal against the judgment dated 27th november 2002, passed by Sessions Judge, Bhopal, in Sessions Trial no. 159/2002, convicting him under Section 307 of the Indian Penal Code and sentencing him to rigorous imprisonment for five years with fine of rs. 5,000/ -.

( 2. ) IN short the facts of the case are that on 10. 2. 2002 at about 1. 30 p. m. when complainant Firoz Khan @ Chhotu alongwith his friends Vipin and vinod was going on the motorcycle, near Jain Temple in Shabri Nagar, accused Jitendra inflicted a blow by a cricket stump on his head. Other co-accused viz. Banti @ Shailendra, Sonu and Sunil also assaulted him by iron rod and by fists kicks. As a result of head injury Firoz Khan fell down. Vipin and Vinod took him to Police Station, Nishatpura, Bhopal, where he lodged fir (Ex. P/1) against the accused persons. He was sent to Hamidiya Hospital for treatment. Dr. Kutubuddin Ali (PW-6) treated him and examined his injuries. C. T. Scan examination was also done. According to C. T. Scan report, on the back side of his head, there was a large sub dural haematoma with haemorrhage. Externally there was a lacerated wound on his left parietal region of skull measuring 4 cm x 0. 8 cm. There was no bleeding. According to his report (Ex. P/7) there was also a comminuted fracture of the left parietal bone. He performed an operation of craniology with evacuation of the sub dural haematoma. About 100 c. c. of blood was removed. In his opinion, the injury was dangerous to life. ( 3. ) AFTER investigation, charge sheet was filed and case was put up for trial against the present accused, co-accused Sonu and Banti @ Shailendra.

( 4. ) THE accused persons abjured their guilt and pleaded false implication. ( 5. ) TRIAL Court mainly relying on the evidence of PW-1 Chhotu @ Firoz khan (injured), PW-2 Vipin Mishra, PW-3 Vinod Kumar and PW-6 Dr. Kutubuddin Ali held the appellant guilty of the offence under Section 307 of the Indian Penal Code. However, finding the evidence of injured and other eyewitnesses inconsistent with the medical evidence, acquitted other accused persons.

( 6. ) LEARNED counsel for the appellant submitted that the evidence of injured PW-1 Chhotu @ Firoz Khan and other eyewitnesses PW-2 Vipin mishra and PW-3 Vinod Kumar was not reliable. There was material inconsistency between their evidence and the evidence of PW-6 dr. Kutubuddin Ali. The appellant was, therefore, entitled to be acquitted. He further submitted that in any case the conviction of the appellant under section 307 was not correct. At the worst, he could be held liable for the offence under Section 325 of the Indian Penal Code. Per contra, learned counsel for the State justified the judgment of the trial Court by adopting the reasonings of the learned trial Judge.

( 7. ) I have carefully considered the submissions made by the learned counsel for both the sides and perused the impugned judgment and evidence on record.

( 8. ) ON perusal of the evidence of injured Chhotu @ Firoz Khan, it is found that while he was going on the motorcycle appellant met him in the Shabri nagar near Jain Temple and after stopping him inflicted a blow by a cricket stump on his head. Though it is also stated by him that other accused also assaulted him by means of iron rod and fists and kicks, but on medical examination by Dr. Kutubuddin Ali (PW-6), except one injury on head, no other injury was found on his body. It is also found in his evidence that 10-12 days prior to the occurrence his friend Vipin had given a cut by his motorcycle to appellant, therefore, there had occurred an altercation on that day, therefore, accused persons entertained grudge. Except this trivial altercation, there was no animus between them. Chhotu @ Firoz Khan also admitted that on the report by Jitendra he was facing 107 Cr. P. C. proceeding and on his report Jitendra was also facing similar proceedings. He admitted that where the incident occurred, there was a playgroun