The judgment establishes the principle that evidence such as victim testimony, medical reports, and material evidence can be crucial in establishing guilt in assault cases.

A.M. Badar, J.

By this appeal, the appellant/convicted accused is challenging the judgment and order dated 10th July 2009 passed by the learned Additional Sessions Judge, Greater Mumbai, in Sessions Case No. 263 of 2009 thereby convicting him of the offence punishable under Section 326 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for five years and to pay fine of Rs. 1,000/-, in default, to undergo simple imprisonment for 1 month.

2. Briefly stated, it is the case of the prosecution that the appellant/accused and injured PW5 Vinod Yadav were friends. The appellant/accused used to reside in the vicinity of the flour mill where injured PW5 Vinod Yadav was working. The incident allegedly took place on 31st December 2008 at about 4 p.m. in the house located at Galli No. 15, Shri Sai Dalit Seva Samiti, Andheri. As the appellant/accused Ujwal Paris and injured PW5 Vinod Yadav were friends, on that day, they indulged in a booze session. During the course of drinking liquor, injured PW5 Vinod Yadav questioned the appellant/accused Ujwal Paris as to why he had beaten his parents prior to two or three days. Upon that, the appellant/accused Ujwal Paris started quarrelling with injured Vinod Yadav. During the course of that quarrel, the appellant/accused Ujwal Paris took one spade from the bathroom of the house and gave blow thereof on head of injured PW5 Vinod Yadav. Because of that blow, injured Vinod Yadav sustained bleeding injury and he was taken to Cooper hospital by his brother.

3. PW1 Sangeeta Wakure was neighbour of the appellant/accused Ujwal Paris. On the basis of information received from mother of the appellant/accused, she lodged report Exhibit 8A of the incident with Police Station MIDC which has resulted in registration of Crime No. 807 of 2008 under Section 307 of the Indian Penal Code against the appellant/accused.

4. During the course of investigation, the Investigating Officer inspected the spot of the incident which was house of the appellant/accused. Spot panchnama was drawn. Clothes of injured PW5 Vinod Yadav, so also that of the appellant/accused, came to be seized. Weapon of the offence came to be seized. Statement of witnesses were recorded and after routine investigation, the appellant/accused was charge-sheeted for the offence punishable under Section 307 of the Indian Penal Code.

5. In the course of trial, the prosecution has examined in all seven witnesses. Informant Sangeeta Wakure is examined as PW1. Panch witnesses to seizure of the iron spade is examined as PW2 . He is Kisan Babu Pawar. Panch witness to seizure of clothes of the informant is examined as PW3. He is Raju Gautam. Panch witness to seizure of clothes of the appellant/accused is examined as PW4. He is Jitu Babu Singh. Injured Vinod Yadav is examined as PW5. PW6 Dr. Saifullah is the Resident Medical Officer of Cooper hospital where injured PW5 Vinod Yadav came to be treated medically. PW7 Sarla Vasave, A.P.I. M.I.D.C. Police Station, is the Investigating Officer.

6. The defence of the appellant/accused was that of total denial. It was tried to be brought on record that in the booze session, the injured fell down under influence of the liquor and sustained head injury.

7. After hearing the parties, by the impugned judgment and order, the learned trial court was pleased to acquit the appellant/accused of the offence punishable under Section 307 of the Indian Penal Code by holding that the appellant/accused had not attempted to commit murder of PW5 Vinod Yadav. However, he was convicted of the offence punishable under Section 326 of the Indian Penal Code and came to be sentenced as indicated in the opening paragraph of the judgment.

8. I have heard Ms. Nasreen Ayubi, the learned advocate appearing for the appellant/accused. She vehemently argued that evidence of PW5 Vinod Yadav goes to show that he along with the appellant/accused had consumed lot of liquor on the day of the incident and there was quarrel between th