The gravity of the offense and the nature of injuries dictate appropriate sentencing while misidentification does not negate the appellant's guilt.

1. This appeal arises out of the judgment of conviction and order of sentence dated 29-5-1999 passed by the Sessions Judge, Rajnandgaon, in S.T. No. 187/98 convicting the accused / appellant under S.307 and S.333 of IPC and sentencing him to undergo R.I. for 5 years and to pay a fine of Rs. 500/- with default stipulation on each count.

2. As per prosecution case, on 3-6-1998 complainant Manilal, Head Constable, along with fellow constables had gone to the vicinity where the appellant was residing, in connection with enquiry in Crime No. 150/98 in relation to offence under S.354 of IPC, there he asked the accused / appellant to accompany him to police station, on which the appellant allegedly refused to go with him and caused injury on his thigh by a Gupti (sword - cane). Immediately after the incident at 11.50 p.m., FIR (Ex. P / 1) was lodged by Manilal, based on which offence under S.186, S.189, S.332, S.307, S.34 of IPC was registered against the appellant showing his name as Narendra Sweeper alias Ramesh Sweeper. The injured was got medically examined on 3-6-1998 by PW 6 Y. K. Tiwari vide Ex.P / 7 who noticed one incised wound of serious nature over right thigh. After completion of investigation charge - sheet was filed against the accused / appellant and two acquitted accused persons namely Uday alias Rajendra Sweeper and Anil S/o Chandrashekhar Ragde under S.186, S.189, S.332, S.307, S.34 of IPC. However, while framing charge the trial Court framed charge against the accused / appellant under S.333 & S.307 of IPC and against two accused persons under S.333/109 & 307/109 of IPC.

3. So as to hold the accused persons guilty, the prosecution examined as many as 11 witnesses. Statements of the accused persons were also recorded under S.313 of Cr. P.C. in which they denied the circumstances appearing against them in the prosecution case, pleaded innocence and false implication. In their defence, they examined one witness.

4. The trial Court after hearing counsel for the respective parties and considering the material available on record, by the impugned judgment while acquitting accused Uday alias Rajendra Sweeper and Anil S/o Chandrashekhar Ragde of all the charges levelled against them, convicted and sentenced the appellant as mentioned in para 1 of this judgment.

5. Learned counsel for the appellants submits as under :
(i) that the FIR was lodged against one Narendra Sweeper alias Ramesh Sweeper whereas name of the appellant is Narendra alias Raj S/o Ramesh Sweeper and as such, it appears that the appellant has been falsely implicated in this case.
(ii) that once on the same set of evidence, co - accused persons have been acquitted by the trial Court, giving similar treatment to the appellant he also ought to have been acquitted of the charges.
(iii) that the statement of PW 1 complainant has not been supported by PW 2 and therefore, veracity of the statement of PW 1 becomes doubtful. (iv) even otherwise, from perusal of the entire statement of PW 1 he does not appear to be a trustworthy witness.
(v) that considering the fact that the injury has been caused from backside, the possibility of assault being made on the complainant by some other person cannot be ruled out.
(vi) even if the prosecution case is taken as it is, offences under S.307 and S.333 of IPC are not made out against the appellant and at best, he can be held guilty under S.324 and S.332 of IPC and further, considering the fact that he has already remained in jail for about 105 days, the incident had taken place in the year 1998, at that time the appellant was 22 years of age, is a small employee of Municipal Corpo