The court determined that the conviction under Section 307 was unwarranted, affirming instead a conviction under Section 325 for voluntarily causing grievous hurt.

JUDGMENT :

PREM NARAYAN SINGH, J.

The present appeal has been filed on behalf of the appellant under Section 374 being disgruntled by the order dated 14.03.2023 passed in Sessions Trial No. 110/2021, whereby the appellant has been convicted for the offence under Section 307 of the INDIAN PENAL CODE , 1860 (hereinafter referred as to 'IPC') for 5 years with fine of Rs.25,000/- and default stipulation and acquitted the appellant for the offence under Section 294 of IPC.

02. The Prosecution case in a nutshell is that on 01.02.2021 at about 5:30 in the evening, the complainant-Anokchand @ Praveen and his elder brother went to the market, where after completing work, his elder brother was ought to sit on motorcycle, at the same time, accused Babu @ Babulal came with stick (lathi) and started to abuse his elder brother Trilok, on stopping him, accused Babu @ Babulal said, “you made home at my land, I will kill you”. Thereafter, with intention to kill, accused assaulted Trilok on the head and left hand. Due to which, blooding was started and Trilok, elder brother of the complainant, fell down. Accused fled away from the spot. The incident was seen by some relative and nearby the persons. They admitted him in the hospital. An FIR was lodged by the complainant bearing Crime No. 25/2021 for the offence punishable under Sections 294 & 307 of IPC at Police Station Balakwada, District Khargone.

03. In turn, after completion of investigation, charge-sheet was filed and the case was committed to the Session Judge and thereafter, appellant was charged for offence under Sections 307 & 294 of IPC. He abjured his guilt and took a plea that he had been falsely implicated in the present crime and prayed for trial.

04. In order to bring home the charges, the prosecution has adduced as many as 09 witnesses namely the Anokchand @ Praveen @ Aanya, complainanat (PW-1), Trilok, injured (PW-2), Sanjay (PW- 3), Meetharam (PW-4), Dr. Chandresh Dixit, Medical Officer (PW- 5), Laxmansingh Rathore, ASI (PW-6), Kailash Patidar (PW-7), Dr. Animesh Damani, Consulting Plastic Surgeon (PW-8) and Varun Tiwari (PW-9). On behalf of defence, 02 witnesses namely Gulabchand Patel (DW-1) and Gokul Patel (DW-2) were produced.

05. Learned trial Court, on appreciation of the evidence and argument adduced by the parties, pronounced the impugned judgment on 14.03.2023 and finally concluded the case and convicted the appellant for commission of the said offence under the provisions of Section 307 of IPC while acquitted him from the charges under Section 294 of IPC.

06. Learned counsel for the appellant submits that the appellant is innocent and the learned trial Court has convicted the appellant wrongly without considering the evidence available on record. Counsel for the appellant further submits that the appellant has not caused any fatal injury to the injured because there is nothing on record to show that the injured has received serious injury. Only one blow was given by the appellant. It is further submitted that there are material contradictions and omissions in the statements of the prosecution witnesses but the learned trial Court has erred in ignoring the same and in convicting the appellant. It is further submitted that there was previous enmity between the parties, the incident hadhappened all of a sudden, there is no knowledge and intention or motive to assault the injured, no deadly weapon was carrying by the accused, hence, the offence shall not travel more than the offence under Section 335 of IPC, but the learned trial Court has wrongly conv