The court modified the conviction from attempted murder under Section 307 to voluntary infliction of injury under Section 323 due to insufficient evidence of intent to kill.

JUDGMENT :

ABHAY S. WAGHWASE, J.

1. Conviction recorded for offence under Section 307 of the Indian Penal Code, 1860 (IPC) by the learned First Adhoc Additional Sessions Judge, Aurangabad, in Session Case No.246 of 2002, dated 07.01.2004 is hereby assailed by the appellant by filing instant appeal.

2. Informant PW-5 initially worked as an Agent in a credit society along with one Bharti. There used to be quarrel between both ladies. Informant was also required to quit job. On 18.01.2001, Dayanand Toshniwal brother of Bharti developed contact and issued threats if she troubles his sister Bharti. On 27.01.2001, informant received offer to work as Editor. On 14.04.2001, she received phone call from Sushant Patil and she was called in hotel at Akola with certificates and photographs and, then, she was told that they have to go to Nagpur to attend conference. In the said hotel she met with Sushant Patil, who was accompanied by one Rane. Sushant Patil also told informant that they have to go to Nagpur in the same night, however, they could not go.

On 18.04.2001, informant received phone call from Sushant Patil and she was again called at Akola in a hotel. There again she saw accused Rane with Sushant Patil. For attending conference they travelled in a car but it broke down and so further journey was called off.

On 20.04.2001, informant was called for attending the conference at Pune. She was taken by Sushant Patil and Rane in Ambassador car. After the vehicle crossed Karmad, Rane introduced himself and told that he is brother of Bharti and that he would finish her if she troubles his sister Bharti. She was beaten in the running car and hit with a heavy object causing bleeding injury and was then thrown out of the vehicle. She took lift from a truck driver and managed to reach CIDCO Police Station. Police took her to Ghat Hospital and reduced her complaint in writing Exhibit 20, on the basis of which crime was registered.

3. PW-9 Vyankat Andhale, who was entrusted with investigation collected evidence and charge-sheeted accused.

Both accused Jitendra and Deepak were tried by First Adhoc Additional Sessions Judge, Aurangabad by his judgment and order dated 07.01.2004 convicted appellant Jitendra alone for offence under Section 307 of IPC and sentenced him to suffer 5 years imprisonment and fine. Accused no.2 Deepak came to be acquitted.

Said judgment of conviction of appellant/accused no.1, is questioned in the instant appeal.

SUBMISSIONS

4. Appraising this court about the prosecution case and charge, learned counsel for the appellant pointed out that there is no convincing, truthful and reliable evidence on behalf of prosecution except testimony of PW-5 victim. According to him, complaint is motivated one, as complainant was on cross term with Bharti. Appellant who is brother of Bharti is therefore made a scapegoat. He pointed out that considering the informant’s evidence in it’s entirety her very conduct being abnormal creates doubt about veracity of her testimony in the court. He pointed out that it is surprising to found a lady visiting various hotels on mere phone calls. He also questions, whether she had any qualifications to work as an Editor of a newspaper. He pointed out that the lady readily visiting several places without knowing the person who allegedly called her. He pointed out that there is no distinct evidence about informant receiving any such calls or about she responding to the same. Learned counsel took this court through the testimony of PW-5 as well as her cross and pointed out that her version is not worthy of credence. He submits that informant claimed that she was hit with a heavy object and she did not specify the nature of article, but investigating machinery claims to have recovered hammer, of which there was no reference. Accouring to learned counsel, PW-5 claimed to have been thrown out of the moving car, but there are no abrasion or scratches on her person in spite of she was examined by medical expert. He also emp