Bombay High Court
Bhimsinh S/O Amarsingh Thakur vs The State Of Maharashtra on 14 June, 2017
Bench: V.L. Achliya
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
CRIMINAL APPEAL NO. 784 OF 2015
Bhimsinh s/o Amarsingh Thakur,
age 23 years, occu. Nil,
r/o Shahunagar, Tq. Nanded,
Dist.Nanded. ..APPELLANT.
VERSUS
The State of Maharashtra. ..RESPONDENT.
...
Advocate for Appellant : Mr.Shinde Ashish B.
APP for Respondents/State: Mr.G.O. Wattamwar.
...
CORAM : V.L. ACHLIYA, J.
13/14th JUNE, 2017.
ORAL JUDGMENT :
This appeal is directed against the judgment and
order dated 01.01.2015 passed in Sessions Case
No.66/2014 by the Sessions Judge, Nanded whereby, the
appellant has been held guilty of the offence punishable
under Section 307 of IPC and sentenced to suffer R.I. for
10 years and to pay a fine of Rs.1000/-. Being aggrieved,
the appellant has preferred this appeal.
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2. Before adverting to appreciate submissions
advanced, it is necessary to consider few facts leading to
prosecution of the appellant and filing of appeal. The
appellant was subjected to trial to face charge under
Section 307, 506 of IPC and section 4 r.w. Section 25 of
the Arms Act.
3. On 20.03.2014, Ashabai Harichandra Telang -
complainant (P.W.3) visited the Police Station, Air Port,
Nanded and reported that at about 19.30 Hrs. while she
was present in her house, she heard shouts outside her
house. She, therefore, came out of house to see as what
happened. She saw the appellant - accused standing in
front of house of Savitri Kadam (P.W.2) - the injured.
Accused was telling her that he wants to marry with her
daughter Archana Kadam (P.W.5). He was quarreling
and harassing Archana. When Savitri (P.W.2) asked the
accused not to touch her daughter Archana, the accused
assaulted Savitri over right side of her chest with the
help of sword in his hand and caused bleeding injury.
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When she tried to intervene and save Savitri, the accused
caught her arm and pushed her. He left the place by
giving threat to see all of them. It is further stated that
accused ran away from the spot. She further informed
that she along with other persons brought injured Savitri
to Vithai Hospital. On the basis of the complaint lodged
by Ashabai Telang (P.W.3), offence punishable under
sections 307, 506 of IPC and Section 4 r.w. Section 25 of
the Arms Act came to be registered as against the
accused. Suryakant Jagdale (P.W.10) Police Inspector
attached to Police Station Airport conducted the
investigation. He visited the spot of incident and made
panchanama and collected the plain earth and earth
mixed with blood from the spot and also obtained the
scrapping of the blood stains from the wall of staircase
and surrounding area where the incident occurred. He
also obtained scrapping of blood which was found on the
door. He seized clothes of Savitri soaked with blood. He
arrested the accused and secured his remand. During
the custody, accused made voluntary disclosure to show
the place where he concealed the sword used in
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commission of offence. He recorded memorandum
statement of accused in presence of panchas and later
on, seized the sword used in the commission of offence,
which was found to be concealed in the bushes in
Shahunagar locality. He recorded statements of the
witnesses which include Rani Hardipsingh Maire (P.W.4).
Further investigation was conducted by Sanjay Pise
(P.W.9). He recorded statements of witnesses which
include Savitribai Sambhaji Kadam (P.W.2), Shivkanta
Sambhaji Kadam and Archana Sambhaji Kadam
(P.W.5). He forwarded Muddemaal property to Chemical
Analyzer. On conclusion of investigation, he filed charge-
sheet against the accused.
4. In order to prove its case, prosecution has
examined ten witnesses and further proved certain
documents. The accused has not entered into defence.
The defence of the accused appears to be of total denial
and false implication at the instance of Savitribai and her
daughter Archana. On conclusion of trial, learned
Sessions Judge, Nanded has found the accused guilty of
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offence punishable under Section 307 of IPC and
awarded sentence as stated above. Being aggrieved,
appellant has preferred this appeal.
5. I have heard the submissions advanced by Mr.A.B.
Shinde, learned Counsel appearing for the appellant and
the learned APP appearing for the respondent - State
and, further perused record and proceedings.
6. Learned Counsel for the appellant assailed the
impugned judgment and order passed by the trial Court
with contention that there is no cogent, convincing and
reliable evidence to sustain the conviction. He submits
that the conviction is wholly based upon testimony of
interested witness Savitribai (P.W.2) the injured and her
daughter Archana (P.W.5). The independent witnesses
which includ Ashabai (P.W.3) complainant, have not
supported the case of prosecution and declared hostile.
Savitribai was against marriage of appellant - accused
with her daughter Archana and carrying grudge against
the appellant. He further submits that Archana has
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deposed at the instance of her mother - Savitri. In this
background, it is contended that in absence of
corroboration to the testimony of Savitribai through
independent witness, conviction is not sustainable in law
and liable to be set aside.
7. He further submits that no offence punishable
under Section 307 of IPC is made out against the
accused. By referring the injury certificate (Exh.39), the
learned Counsel submits that as per injury certificate,
the injury caused to Savitribai (P.W.2) found to be
simple in nature. He, therefore, submits that in the facts
and circumstances of the case and evidence on record,
the conviction of appellant for the offence punishable
under Section 307 of IPC is not justified.
8. By referring the overall evidence, learned Counsel
submits that no inference can be drawn that accused
had attempted to kill Savitribai (P.W.2). It is pointe dout
that Archana (P.W.5) has deposed that accused was
trying to assault her. In order to protect her from
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accused, her mother Savitri came in front of her and
sustained the injury. He, therefore, submits that by no
stretch of imagination it can be said that accused
attempted to cause the death of Savitribai. In this
background the learned Counsel contended that the act
of accused can be termed as voluntarily causing hurt,
which may invite penalty for committing offence
punishable under Section 324 of IPC.
9. On the other hand, learned APP supported the
judgment and order passed by the trial Court and
submitted that Savitribai (P.W.2) the injured has
sustained grievous hurt caused by means of sword.
She was assaulted by accused on the vital part of her
body i.e. over chest. The injury caused proved to be
grievous in nature. Looking to the nature of the injury
and seriousness, the injured was required to be shifted
to J.J. Hospital, Mumbai where she was required to
undergo extensive treatment for a period of more than
one month as an indoor patient. In this background,
learned APP submits that the injury caused to injured
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Savitribai can well be termed as a grievous hurt within
the meaning of section 320 of IPC. He further submits
that carrying and possessing sword by accused at the
time of incident itself reflects that accused went to the
house of injured Savitribai with an intention to assault
Archana the daughter of Savitribai. He further submits
that the evidence of Savitribai (P.W.2) and Archana
(P.W.5) inspires full confidence. Nothing is elicited
through their cross-examination so as to discard or
disbelieve their testimonies. He further submits that the
testimony of Savitribai (P.W.2) finds due corroboration
from Archana (P.W.5) and other evidence such as seizure
of sword, detection of blood as that of the group of
injured on the spot as well as the sword used in
commission of offence. He submits that the injury
certificate as referred and relied upon by the appellant
cannot be treated as final opinion given as to nature of
injury caused to Savitri (P.W.2). The injury certificate
was issued on 19.03.2014 on the basis of preliminary
observations made by medical officer without opening the
injury and examining the same. The evidence on record
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shows that the injured had sustained serious injury over
chest. Due to seriousness of injury and complications
the injured was sent to J.J. Hospital, Mumai. Only due
to timely treatment, the injured was survived.
Otherwise, death of injured was eminent on account of
injury sustained by her. He submits that the impugned
judgment and order is well reasoned and calls for no
interference in exercise of appellate jurisdiction.
10. In order to appreciate the submissions advanced, I
have perused the record and proceedings and closely
scrutinized the oral and documentary evidence adduced
by prosecution to prove its case. As discussed, the
prosecution has come out with a case that accused
intended to marry Archana (P.W.5) daughter of Savitribai
(P.W.2). It has been brought on record that accused had
affair with Archana. Some time prior to the incident,
accused as well as Archana went to Shirdi and stayed
there for 2 to 3 days. Savitribai (P.W.2) was against
marriage of her daughter with accused. On the day of
the incident, accused went to the house of Archana to
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force her to marry with him. When Savitri (P.W.2)
refused to perform marriage of her daughter with the
accused, it appears that the accused caught the hands of
Archana to forcibly take her away. When Savitri
intervened, the accused assaulted her with the help of
sword in his hand.
11. In order to establish its case, the prosecution has
examined ten witnesses which include Savitribai (P.W.2),
Archana (P.W.5). Besides Savitribai (P.W.2), Archana
(P.W.5), prosecution has examined Asha (P.W.3) the
complainant and eye witness to the incident. However,
she has not supported the case of the prosecution and
declared hostile. Besides said witnesses, prosecution
has examined Rani Hardeepsingh Maire (P.W.4) an
independent witness to incident. She has also not
supported the case of the prosecution and declared
hostile. In order to corroborate the testimony of
Savitribai, prosecution has examined Dr.Umesh Kolekar
(P.W.6) Medical Officer attached to Vithai Hospital,
Nanded and Dr.Dilip Gaware (P.W.8) Medical Officer
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attached to J.J. Hospital, Mumbai, who examined and
treated Savitribai. Besides the said witnesses,
prosecution has examined Santosh Tahkur (P.W.1)
Panch witness to spot and seizure panchanamas and
Police Constable Avadhut Kalne (P.W.7) who carried
Muddemaal property to the Forensic Laboratory and
Assistant Police Inspector Sanjay Pise (P.W.9) and Police
Inspector Suryakant Jagdale (P.W.10), the Investigating
Officer. Thus, if we consider the overall evidence as
adduced by the prosecution, then the conviction of
accused is mainly based upon the testimonies of
Savitribai (P.W.2), Archana (P.W.5), Dr.Umesh Kolekar
(P.W.6), Dr.Dilip Gaware (P.W.8) and recovery of weapon
used in commission of offence at the instance of accused.
12. Savitribai (P.W.2) has testified before the Court as
per Exh.22. She has deposed that on 19.3.2014 at 7.30
p.m., when she came out of her house after hearing
shouts, she heard accused demanding gold ring from her
daughter and telling her to marry with him. Accused
also told her that he wants to marry with her daughter
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Archana, to which she refused. Thereupon, the accused
assaulted her with sword on the upper right side of her
chest. She was initially taken to Vithai Hospital, Nanded
and later on, shifted to J.J. Hospital, Mumbai and
discharged after one month. She identified the sword i.e.
Article "A" as the same sword which was used by the
accused in assaulting her. She further identified the
sari, blouse i.e. Articles "B" and "C" as same clothes,
which were on her body at the time of incident and
seized by police. She further deposed that at the time of
incident, the accused was wearing green T-shirt and
identified the Article "D" as same "T" shirt.
13. It has been brought on record through her cross-
examination that at the time of incident, there were
about 20 - 25 tenants residing in the same building
belonging to Asha (P.W.3). She has admitted that her
daughter Archana had gone to Shirdi and stayed for 3 - 4
days and accused had also gone to Shirdi and stayed for
2 - 3 days. It is further brought on record that before the
incident, she had verbally told accused not to chase her
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daughter, who used to follow her while she was going to
school. It is brought on record that at the time of
incident, 50 - 60 persons were residing in the building
and incident was occurred on the steps of staircase going
towards upper floor. It is also brought on record that
when she raised shouts the neighbours ran away
towards their houses seeing sword in the hand of
accused. It is further brought on record that she rushed
to room of one of tenants after she was assaulted by
accused. Thus, if we consider the testimony of Savitribai
(P.W.2), there is nothing to show that she had cooked a
false story to falsely implicate the accused. The
testimony of witnesses appears to be natural and
truthful and same can be safely accepted to form basis to
prove guilt of accused even in absence of corroboration.
14. If we consider the testimony of Savitri (P.W.2) in the
light of other evidence, then her testimony finds due
corroboration from other evidence on record. Archana
(P.W.5) has duly corroborated the testimony of Savitri.
She has deposed that on 19.3.2014 at about 7.30 p.m.,
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the accused came to her house and demanded gold ring.
When she refused to give him gold ring, the accused
started quarreling with her. When her mother i.e. Savitri
(P.W.2) came out of house, the accused told her that he
wants to marry with her. Her mother refused to marry
her with accused. She further deposed that her mother
wanted the accused not to touch her. She further
deposed that accused assaulted her mother with sword
on the right side of her chest. On receiving the blow, her
mother fell down. There was profuse bleeding from the
injury. Her mother was taken to Vithai Hospital and
later on shifted to J.J. Hospital, Bombay. Accused left
the place by giving threats. She further deposed that her
mother remained admitted in J.J. Hospital, Mumbai for
one month. She identified the sword article "A" as the
same used in the commission of offence i.e. assault on
her mother. Through her cross-examination, it is
brought on record that accused was quarreling with her
and as her mother thought that accused would assault
her, her mother Savitri pushed her aside and at that
time, her mother sustained blow of sword on her chest.
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15. Besides the testimony of Archana (P.W.5) the sole
eye witness, there is other evidence in the nature of
corroboration to the testimony of Savitribai. Dr.Umesh
Kolekar (P.W.6) Physician attached to Vithai Hospital has
duly corroborated testimony of Savitri as to injury
sustained by her in assault made on her on 19.3.2014.
He has categorically deposed that on 19.3.2014,
Savitribai (P.W.2) was brought to Vithai hospital with
injury on upper right side of her chest. He further
deposed that the said injured was referred to Dr.Shrikant
Zanwar and later on, to Dr. Gulati as it required surgical
intervention. She was kept overnight under observation
and later on, advised to take her to Mumbai for expert
treatment as major damage found to be caused to the
vessels. The testimony of the injured Savitri further
finds corroboration through the testimony of Dr. Dilip
Gaware, (P.W.8) Medical Officer, attached to J.J.
Hospital, Mumbai. He categorically deposed that on
21.03.2014, Savitribai was brought from Nanded to J.J.
Hospital with history of assault by sharp object made on
19.3.2014. At the time of admission, she found to have
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sutured wound approximately 10 cm in length over right
side of her chest. She was then referred to Surgical
Department for further treatment. She remained
admitted as indoor patient w.e.f. 21.03.2014 to
20.04.2014 and treated by Surgery unit headed by
Dr.Rushad Udwadiya.
16. Besides oral testimonies of above referred
witnesses, there is corroboration to testimony of Savitri
(P.W.2) in the form of seizure of clothes, seizure of
weapon used in the commission of offence at the
instance of accused. The injured as well as eye witness
have identified the sword i.e. Article "A" as the same
weapon was used in commission of offence. The report of
Chemical Analyzer reveals that on the sword, human
blood of group "A" was detected. Similarly, on the
clothes of injured Savitribai i.e. blouse and sari, human
blood of group "A" as that of injured was detected. The
blood found on the spot, was also found to be human
blood of group "A". Thus, there is ample corroboration to
the testimony of Savitribai (P.W.2) as to mateerial facts
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deposed by her. I have, therefore, no hesitation to
observe that the prosecution has proved its case beyond
reasonable doubt to prove the complicity of accused in
commission of offence of assault on Savitribai (P.W.2).
17. I am not inclined to accept the contention of the
learned Counsel for the appellant that in absence of
corroboration to the testimony of Savitribai (P.W.2)
through independent witness, the accused deserves to be
acquitted. In my view, the evidence of Savitribai is such
that it requires no corroboration from independent
witness. The testimony of Savitribai inspires full
confidence. Apart from this, her testimony finds due
corroboration from other evidence.
18. In fact, the prosecution had examined two
independent witnesses. However, they have not
supported the case of the prosecution. Only for the
reason that independent witnesses have not supported
the testimony of injured, the testimony of Savitri, her
testimony cannot be brushed aside. In my view, the
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testimony of Savitribai and Archana are such that it
inspires full confidence and can be safely accepted
without corroboration from independent witness. In this
view, the reasons and findings recorded by the trial
Court are fully in consonance with the evidence adduced
by prosecution as well as based upon due appreciation of
evidence. Hence, calls for no interference in exercise of
appellate jurisdiction.
19. The next question which poses for consideration is
whether the act of the accused can be termed as an
attempt to commit murder punishable under Section 307
of IPC.
20. Learned Counsel for the appellant has strenuously
contended that the injury caused to Savitri, the injured
cannot be termed as an injury, sufficient in ordinary
course to cause the death of any person. He submits
that as per the report of injury at Exh.39, the injury
found on the body of injured Savitribai described as
simple injury. He has contended that only for the reason
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that the injured was lying admitted in the hospital for a
period of more than twenty days itself not sufficient to
draw conclusion that injury was grievous in nature and
may have resulted fatal if it would not have been treated
immediately.
21. In my view, no much weightage can be given to the
injury report at Exh.39. If we consider report at Exh.39,
then the nature of injury described as sutured wound
with approximately 10 cm in length on right side of
chest caused by sharp weapon. The certificate appears
to be given on the basis of superficial examination of the
injury. The sutured wound was not opened before
issuing certificate. There is ample evidence to show
that the injury which was caused to the injured was
grievous and serious in nature. If the treatment would
not have been provided immediately after the incident to
the injured then the injury caused to the injured may
have resulted into her death. Dr. Kolekar (P.W.6) has
categorically deposed that Dr. Gulati, the Surgeon was
called in the hospital as the case was found to be
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requiring surgical intervention. He deposed that Dr.
Gulati shifted the injured into Operation Theater and
opened the bandage. After examining the injury, he
found that there was major damage to vessels. The
services of Vascular Surgeon was not available in Nanded
City, therefore, he advised to shift the patient to Mumbai
for expert treatment. He further deposed that Savitribai
was referred to J.J. Hospital, Mumbai. He has produced
on record the Medico Legal Case Papers in respect of
treatment given to Savitribai. The papers are at Exh.32.
It reveals from the papers produced at Exh.32 that on
opening the wound, there was heavy bleeding and it was
suspected that there was vascular injury and therefore,
the wound was sutured and the patient was referred to
Mumbai.
22. Dr. Dilip Gaware, C.M.O. attached to J.J. Hospital
(P.W.8), deposed that on 21.3.2014 Savitribai kadam was
brought to J.J. Hospital from Nanded. He examined her
clinically and found sutured wound over her right side
chest. He immediately referred patient for emergency
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surgical department for further treatment. Thus, the
injury certificate produced at Exh.39 which was issued
only on the basis of clinical examination is not sufficient
to accept the contention that the injury suffered was
simple injury. P.W.8 has deposed that Savitribai
remained as indoor patient w.e.f. 21.3.2014 till she was
discharged on 20.4.2014. She was under treatment and
care of Dr. Rushad Udawadiya, the Head of General
Surgery Department. He produced the report of Medico
Legal Case in respect of admission and treatment given
to injured, which are produced at Exh.38. He has
deposed that location of the injury was on vital organ of
body of the injured. Thus, the injury caused to the
injured Savitribai cannot be termed as a simple injury.
The fact that the injured was required to be shifted to
Mumbai for treatment itself reflects seriousness of the
injury caused to the injured. The period of
hospitalization of injured for more than one month has
not been undisputed. Thus, the evidence on record
sufficiently proves that the injury caused to the injured
Savitribai was grievous in nature.
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23. In order to term the act of the person as an act
amounting to attempt to murder punishable under
Section 307 of IPC, it is necessary for the prosecution to
establish two ingredients i.e. (a) an intention or
knowledge of committing murder; (b) the doing of an act
towards it. Thus, the intention or knowledge at the time
of incident is very relevant to assess as to whether the
accused intended to cause murder of the injured or the
intention was confined to inflict an injury. The injury
itself is not sufficient to infer the intention of a person.
The intention of the accused needs to be gathered on the
basis of the facts and circumstances of the case and
evidence brought on record.
24. The requisite ingredients of the offence u/s 307
of the Indian Penal Code are as under :
[i] that the death of a human being was
attempted;
[ii] that such death was attempted to be caused
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by, or in consequence of the act of the accused; and
[iii] that such act was done with the intention of
causing death; or that it was done with the
intention of causing such bodily injury as :
[a] the accused knew to be likely to cause
death; or
[b] was sufficient in the ordinary course of
nature to cause death, or that the accused
attempted to cause death by doing an act
known to him to be so imminently dangerous
that it must in all probabilities cause (a)
death, or (b) such bodily injury as is likely to
cause death, the accused having no excuse
for incurring the risk of causing such death or
injury.
25. Thus, if we consider the ingredients of offence u/s
307 of the Indian Penal Code, then one of the necessary
ingredients of offence is to be established that the
accused had acted with intention of causing death or
such bodily injury, which the accused knew or likely to
knew to cause death. Therefore, the nature of injury
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itself is not significant to draw the conclusion whether
the accused acted with intention to cause death. What is
important is the intention of accused in inflicting the
injury. The intention of a person being locked in his
mind, it is difficult to get any direct evidence to ascertain
the intention of person. Such intention is to be inferred
on the basis of over-all facts of the case and evidence as
adduced in the case. The intention to cause death can
be gathered generally on the basis of following
circumstances :
[i] Nature of the weapon used ;
[ii] Whether the weapon was carried out by
accused or was picked up from the spot ;
[iii] whether the blow is made on the vital
part of the body ;
[iv] force applied in causing injury ;
[v] whether the act was sudden ;
[vi] whether the incident occurred by-
chance or whether there was any
premeditation;
[vii] whether there was any prior enmity or
the injured was stranger ;
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[viii] whether there was sudden provocation ;
[ix] whether it was in the heat of passion ;
[x] whether the person inflicting injury has
taken undue advantage or acted in a cruel or
unusual manner ;
[xi] whether the accused dealt single blow or
several blows.
26. The circumstances mentioned above are some of
the circumstances and the list is not exhaustive. There
may be several other special circumstances depends
upon the facts and circumstances with reference
to particular case which needs to be taken into
consideration while drawing inference as to intention of
assault.
27. In order to prove the offence punishable u/s 307 of
the Indian Penal Code, it is incumbent upon the
prosecution to prove that the accused has attempted to
cause death of the injured. The word 'attempt' referred
in section 307 of the Indian Penal Code necessarily refers
in a sense as an intentional preparatory action which
fails in its object. The intention to cause the death can
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be gathered from the circumstances. It is not necessary
to constitute an offence u/s 307 of the Indian Penal
Code, the attack should result in an injury. An attempt
is itself sufficient if there is requisite intention. Thus, for
the purpose of assessing whether the act committed by
the accused amounts to an offence of attempt to commit
murder, the Court has to see whether the act irrespective
of its results, was done with intention or knowledge and
under circumstances mentioned in section 307 of the
Indian Penal Code.
28. Keeping in mind the above discussed broad
principles, I proceed to examine the submissions
advanced in the light of evidence adduced by the
prosecution. If, we consider the facts of the case, then
the case of the prosecution is that on the day of the
incident, the accused had visited house of injured and
found him quarreling with her daughter. He was asking
Archana (P.W.5) to give the golden ring. It has been
brought on record that the accused as well as Savitribai
were residing in same locality. It is also brought on
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record that earlier Archana as well as accused had gone
to Shirdi and they stayed there for 3 - 4 days. It is also
brought on record that the accused used to chase
Archana while she was going out of her house. When the
accused wSec. 307 and 326 of IPC as quarreling with
Archana, the injured was inside the house. She came
out of house after hearing quarrel going on outside her
house and saw the accused quarreling with her
daughter. She found the accused had caught the hands
of Archana. When she intervened, the accused told her
that he wants to marry with Archana. She refused to
marry her daughter with the accused. Archana (P.W.5)
deposed that her mother thought that the accused might
assault her (i.e. Archana), and therefore, she pushed her
aside and at that time her mother received blow of sword
on her chest, dealt by the accused. Thus, it can be safely
gathered that though the accused had visited the place
with sword in his hand, but he had no such intention to
assault Savitribai. It is during the course of quarrel, the
accused assaulted Savitribai. If, we consider the facts
as deposed by Archana, then her mother Savitribai
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suspected that the accused is going to assault her
daughter, she pushed her and in that process, came
ahead and sustained injury on her chest. In this view,
the inference can be drawn that the accused had no
intention to kill Savitribai. So also, it cannot be inferred
that the accused had sufficient knowledge that by doing
such act, it may result into death of Savitri. In this view,
I am of the opinion that the offence under section 307 of
IPC is not attracted. Looking to the overall facts of the
case and the evidence on record, it can be said that the
accused had committed an act of voluntarily causing
grievous hurt to the injured and thereby, committed an
offence punishable under Section 326 of IPC. There is
evidence to show that the injured had sustained grievous
hurt as defined under Section 320 of IPC. There is no
challenge to the evidence adduced by the prosecution
that the injured remained hospitalized as an indoor
patient from 19.03.2014 to 20.04.2014. Thus, the
injury, which was caused to the injured Savitribai,
sufficiently falls within the meaning of "grievous hurt" as
defined in section 320 of IPC, as the injured has suffered
784.15crapl
bodily pains and unable to follow her ordinary pursuits
for a period of more than twenty days. Thus, on due
consideration of evidence on record, I am of the view that
offence punishable under Section 326 of IPC has been
made out against the accused.
29. In view of above, the appeal filed by the appellant
deserves to be partly allowed to the extent of alteration of
conviction of appellant from section 307 of IPC to section
326 of IPC as well as modification of sentence. In the
result, I pass the following order:
: ORDER :
i) Criminal Appeal No.784 of 2015 is partly
allowed;
ii) The conviction of the appellant for the offence
punishable under Section 307 of IPC is altered from
sectioSec. 307 and 326 of IPC n 307 IPC to section
326 IPC. The sentence awarded to the accused to
suffer is modified. The appellant is sentenced to
undergo R.I. for five years and pay fine of
784.15crapl
Rs.1000/-, in default of payment of fine, to undergo
further R.I. for fifteen days, instead of sentence
awarded to undergo R.I. for ten years and fine of
Rs.1000/-
iii) Appeal is disposed of in above terms.
[ V.L. ACHLIYA, J ]
Kadam.
