JUDGMENT - S.G. MAHAJAN, J.:---In Session Trial No. 393/95, the learned 6th Additional Sessions Judge, Nagpur, convicted accused No. 1 Ashok s/o Nagorao Chaudhari and No. 2 Bhagwan s/o Anandrao Manohare both, of the offence under section 307 read with section 34 I.P.C. and sentenced each of them to suffer R.I. for five years and to pay a fine of Rs. 500/- or in default to suffer R.I. for two months more. Out of the above said two accused, only accused No. 1 Ashok has challenged the order of conviction and sentence. He is the appellant in this appeal.

2.The case of the prosecution was as under :---

(A) Prior to the incident in this case, the accused used to game on play cards in the locality of complainant Raju Pyarelal Basdwar named Vasant Nagar Hutment, Dharampeth. On the earlier occasions, the complainant had prohibited the accused persons from gaming. In spite of his protests, the accused used to play. Due to the objection of the complainant, the accused got annoyed. The incident in this case took place on 21-9-1994 at about 3.00 to 3.15 p.m. At that time, the accused persons along with some others were gaming on play cards in the above said locality. Complainant Raju asked them not to game. Accused No.1 Ashok, who is the present appellant, took out the gupti (cane sword) and delivered its blow on the chest of the complainant. Accused No. 2 Bhagwan also gave a blow of blade of spear on the armpit of the complainant. The complainant sustained bleeding injuries. His wife Rekha, one Mayabai and Parasram took him in a rickshaw to Police Station Sitabuldi. From there, he was removed to Government Medical College Hospital by police. P.S.I. Jafar Syed, who was on duty as a Day Officer in Police Station Sitabuldi, immediately went to Medical College Hospital and issued a requisition to C.M.O. seeking permission to record the statement of the complainant. The Medical Officer examined the complainant and endorsed on the requisition that the complainant was fit for statement. P.S.I. Jafar Syed thereupon recorded the statement of the complainant in presence of C.M.O., Medical College Hospital, Nagpur, which is the F.I.R. (Exhibit 34) in this case. P.S.I. Jafar Syed then came to Police Station and registered the crime under section 307 read with section 34 I.P.C. The investigation was then handed over by him to P.S.I. Thakre.

(B) P.S.I. Thakre proceeded to the spot and drew the spot panchanama. During the preparation of the spot panchanama, he seized the plain earth and earth stained with blood from the spot. During the investigation, he also seized the baniyan of the complainant stained with blood, which was produced by the complainant's wife. During the process of further investigation, the accused were arrested. The gupti (cane sword) was recovered from the house of accused No. 1 Ashok on 4-10-1994 in consequence of the information given by him, on memorandum. So also the blade of spear was recovered on 8-10-1994 from the house of accused No. 2 Bhagwan at his instance, that is in consequence of the information given by him, on memorandum.

(C)On admission of complainant Raju in the Government Medical College Hospital, Nagpur, on 21-9-1994 at 4.35 p.m., he was medically examined by Dr. Agrawal. Dr. Agrawal found the following injuries on the person of complainant Raju :---

(1) Stab---left para-sternal lower third 2.5 x 5 cm, edges sharp, angles acute.

(2) Stab---left axilla ½ x ½ cm, rounded, edges contused.

(3) Laceration upper lip right, 1 x ½cm, associated with swelling.

X ray of chest and abdomen was advised.

In the opinion of Dr. Agrawal the injuries were fresh and injury No. (1) was dangerous to life. They were possible with sharp edged weapon.

(D)The property was sent to the Chemical Analyzer and the report of Chemical Analyser was received.

(E)On completion of the investigation, the accused persons stood charge-sheeted.

3.The learned Chief Judicial Magistrate, Nagpur, committed the case to the Court of Session for the trial of the accused

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