The testimony of an injured witness is generally considered reliable, and the principle of common intention under Section 34 of the Indian Penal Code was applied to establish the guilt of the accused.

JUDGMENT :

1. The Appellants who were the accused in Sessions Case No. 29 of 2007 have questioned the legality of the conviction and sentence imposed by learned Additional Sessions Judge, Akola vide judgment dated 05.12.2018. By the impugned judgment learned Sessions Judge, Akola has held the Appellants guilty of offence punishable under Section 326 read with 34 of the Indian Penal Code and sentenced them to undergo Rigorous Imprisonment for a period of two years and to pay fine of Rs. 1000/- each , in default to undergo simple Imprisonment for one month.

2. It is the case of the prosecution that on 11.05.2005 at 12.30 am, the Appellants Pravin and Yashwant (hereinafter referred to as ‘accused Nos. 1 and 2’ respectively) in furtherance of the common intention, caused grievous hurt to P.W.3 Chandrakant Mourya by means of a dangerous weapon. The said incident was preceded by a quarrel between Sunil, the nephew of the injured and one Pankaj, wherein the injured had intervened. The accusation against the accused are that at about 12.00 to 12.30 am accused no. 1 accompanied by accused no.2 went to the court yard of the injured (P.W.3) and assaulted him with a sword. It is the case of the Prosecution that the accused no. 2 assaulted P.W.3 Chandrakant Mourya by kicks and blows on his private part. As a result of the assault right thumb of the injured was severed and he received injuries on the other parts of the body. P.W.1 - Chandan Thakur, P.W.2 Haridas Dhore and P.W.4 Anil Moyrua took the injured to the Civil Hospital, Akola.

3. P.W.1 Chandan Thakur lodged the First Information Report at Exhibit 39 pursuant to which Crime No. 362/05 came to be registered against the accused for offence under Section 307 read with 34 of the Indian Penal Code. In the Course of investigation, the statement of the injured and other witnesses were recorded, spot Panchnama was conducted and the incriminating material found at the spot was attached under Panchnama at Exhibit. 51. The sword being the weapon of offence was recovered at the instance of accused no.1 and seized, under Panchanama (Exhibit 49) under Section 27 of the Indian Evidence Act, 1872. The clothes of the accused as well as of the injured were seized under the seizure Panchanama. The incriminating material was sent for chemical analysis at Nagpur. Upon completion of investigation charge-sheet was filed before learned Judicial Magistrate First Class, Akola. Since the offence was exclusively triable by the Court of Sessions, the case was committed to the Sessions Court, Akola.

4. The charge was framed against accused for the offence punishable under Section 307 read with Section 34 of Indian Penal Code and Section 4 and 27 of the Arms Act. The accused pleaded not guilty and claimed to be tried.

5. The prosecution examined the injured and the other material witnesses. The statements of the accused were recorded under Section 313 of the Code of Criminal Procedure. The defence of the accused was that of total denial.

6. Upon considering the evidence on record and basically relying upon the evidence of the injured witness and other corroborative evidence, the learned Judge held that the accused with common intention caused grievous hurt to P.W.3 Chandrakant Mourya by means of dangerous weapon. Learned Judge held that the injuries were not sufficient to cause death in the ordinary course of nature and as such offence under Section 307 of the Indian Penal Code is not made out. Learned Judge therefore held the accused guilty of offence under Section 326 read with 34 of the Indian Penal Code and sentenced them as stated above. Learned Judge acquitted the accused of offence under Section 4 and 25 of the Arms Act holding that the Prosecution had not adduced evidence to prove prohibition of possession of swords and knife in the area where the offence was committed. Being aggrieved by the conviction and sentence, the accused have preferred this appeal under Section 374(2) of the Code of Criminal Procedure.