( 1 ) THE present appeal is filed by the appellant - original accused No. 1. challenging the legality and validity of the judgment and order of conviction and sentence (hereinafter referred to as the impugned judgment and order ) passed by the learned Additional Sessions Judge, vadodara, in Sessions Case No. 159 of 1990 on 29th August, 1992, whereby the present appellant has been held guilty of the charge of offence punishable under Section 326 of the Indian Penal Code and sentenced to undergo five years simple imprisonment and to pay a fine of Rs. 5,000/-, in default of making payment of fine to undergo one year simple imprisonment. The learned trial judge has in exercise of powers vested with him under the provisions of Section 357 of the Code of Criminal Procedure, has ordered that upon depositing the amount of fine of Rs. 5,000/- by the appellant-accused, amount of Rs. 4,000/- to be paid to the injured-Gita towards compensation.

( 2 ) THE appellant has challenged the impugned judgment and order by raising various grounds as mentioned in paragraph 6 of the memo of appeal. Mr. Parikh, learned Counsel for the appellant has taken me through all these grounds and the oral as well as documentary evidence led during the course of trial by prosecution. To appreciate the rival side contentions that have been raised before this Court by mr. Parikh as well as by Mr. Bhate, the Court is inclined to state the case of prosecution in brief.

( 3 ) ACCORDING to prosecution, on 8th april, 1990, at about 10. 15 a. m. , injured-Gitaben Rasiklal Jaiswal was proceeding towards the pond of Village Raval for washing clothes. At that time, three accused persons chased victim-Gita and assaulted her with an intention to kill her or to cause serious injuries which may result into her death. It is also alleged that the present appellant had given blows with Dharia on three different parts of the body of injured-Gita, whereas the original accused Nos. 2 and 3 were instigating the accused No. 1. It is the say of prosecution that prior to the incident, a quarrel was taken place on a trifle issue for putting and igniting hearth which was used for cooking food and injured-Gita had used improper words during that quarrel. Thereafter, she had proceeded towards the village pond with her mother and her mother was carrying clothes for washing. When they were about to reach to the bank of pond, the victim-Gita was assaulted by the appellant.

( 4 ) THREE accused persons were prosecuted for the offence punishable under section 307 read with Section 34 of the indian Penal Code and after evaluating the evidence, the trial Judge has acquitted the original accused Nos. 2 and 3; as there was no legal or convincing evidence to show that they were sharing common intention with the appellant-original accused No. 1. But, the Trial Court found accused No. 1-present appellant is guilty of the charge of offence punishable under Section 326 of the indian Penal Code, meaning thereby the offence punishable under Section 307 is not made out but in view of the nature of injuries found on the body of injured, the accused can be convicted under Section 326 of the Indian Penal Code.

( 5 ) MR. PARIKH, learned Counsel appearing for the appellant has submitted that the impugned judgment and order is not sustainable, as there are certain infirmities in the evidence led by the prosecution and therefore the accused should be acquitted by this Court. He has also pointed out some inconsistency in the evidence of injured herself and her failure to identify the muddamal weapon that was used in the commission of offence. When the case of prosecution is that the muddamal Dharia blows were inflicted and injured herself is not able to identify that weapon then in that fact situation the accused could not have been linked with the crime, is one of the main submission. It is also argued that there is no consistency in the evidence as to the actual place of occurence. To develop this p