Gohil, J. -- 1. State of Madhya Pradesh has preferred this appeal under section 378 CrPC against the judgment dated 8.5.1997 in Sessions Trial No. 452/96 passed by Second Additional Sessions Judge, Mhow, Indore, challenging the acquittal of the respondent under section 307, IPC and instead conviction under section 324, IPC and sentenced to the period of already undergone which was around one year.

2. As per prosecution story, the incident took place on 23.5.1996 at about 3.00 p.m. when complainant Roop Singh was present at his house. Accused Roop Singh came there and started abusing. Complainant came out from his house and asked accused that whey he is abusing. Thereupon accused who was carrying Darata (a sharp edged weapon) in his hand, assaulted on the complainant and gave 5-6 Darata blows. As a result of these assaults the injured received as many as five incised wounds on the different parts of the body. The matter was reported, crime was registered. The matter was investigated and charge-sheet was filed.

3. During trial, Roop Singh (PW 1) and Sajanbai (PW 2) supported the prosecution story. The story was narrated by Roop Singh to Sajanbai. Though the others have not supported the prosecution version, but the statement of Roop Singh (PW 1) is supported by medical evidence of Dr. Shankarlal Paliwal (PW 4). The doctor has clearly stated that the injury No. 1 was dangerous to life and likely to cause death. Even after the aforesaid evidence the trial Court acquitted the respondent from the charge under section 307, IPC and instead convicted him under section 304, IPC and released him on undergone jail sentence, against which the State has preferred this appeal after taking leave from this Court.

4. We have heard the learned counsel for the parties. Learned counsel for the appellant submitted that the trial Court has committed illegality in not convicting the respondent under section 307, IPC and discarding the medical evidence of Dr. Paliwal (PW 4). In reply, learned counsel for the respondent submitted that in this appeal the respondent was directed to be released on bail but he being a poor person could not furnish the bail, therefore, he remained in custody for more than 3 years and 7-1/2 months. Therefore, even if the conviction is altered from section 324 to 307, IPC, considering the circumstances he be released on undergone jail sentence.

5. After considering the rival contentions we have perused the evidence on record. We are conscious of this fact that we are hearing this appeal against acquital. It is true that the trial Court has not properly considered the medical evidence. Dr. Paliwal (PW 4) has clearly stated that injury No. 1 was an incised wound over the left side on the chest, which was 7 cm x 3 cm. deep and it was a case of air leak from the wound and, therefore, the injuries could have been dangerous to life. Considering the aforesaid evidence on record, the reasons assigned for acquittal under section 307 and instead conviction under section 324, IPC do not appear to be jus and proper. Thus, this appeal is allowed. The judgment of the trial Court is set aside. Looking to the ocular as well as medical evidence the respondent is convicted under section 307, IPC.

6. So far as the question of sentence is concerned, as submitted by the counsel for the respondent that the respondent is a poor person. He has already suffered jail sentence of more than three and half years and he was not involved in any other criminal activities; the incident took place on 23.5.1996; he has already suffered agony of criminal proceeding for more than 10 years and there is no report about misuse of the bail period. Thus, we direct that his jail sentence for the aforesaid conviction shall be the period already suffered in custody, which is around three and half years. Respondent is now on bail. Therefore, his personal bond b discharged.

7. The appeal is allowed as indicated above.