JUDGEMENT

This criminal appeal has been preferred against the judgment of conviction and sentence passed on 16.2.2006 by First Additional Sessions Judge, Damoh, in Sessions Trial No.77/1998 holding the appellant guilty of the offence of Section 324 (on two counts) of IPC and sentencing him to one year rigorous imprisonment and fine of Rs.1,000/- under each count and to undergo additional rigorous imprisonment of one month for each default of payment of fine.

2 . Brief facts of prosecution case are that on 28.2.1998 appellant Ram Kumar along with his brother Shyam Kumar (co-accused before the trial court) was assaulting and abusing Jeevan Mishra, who is the nephew of complainant Vishnu Mishra; Laxmi Prasad, the younger brother of Vishnu Mishra, tried to intervene but appellant Ram Kumar caused injuries to Jeevan Mishra with an axe carried in his hand and this resulted into injuries in the fingers of left hand, right thigh and back of Jeevan Mishra; Laxmi Prasad Mishra, who tried to intervene, was also attacked by appellant with axe on account of which he sustained injury on right side of his chest; complainant Vishnu Mishra asked the assailants to stop the abuses and the assault but Shyam Kumar caused him injury with axe resulting into cut wound on the right side of his head; the matter was reported by complainant Vishnu Mishra to Batiyagarh police station; all the injured were medically examined and their dying declarations were recorded; matter was investigated and charge-sheet was filed under Section 307/34 of IPC; the trial followed, in which appellant was convicted for the aforesaid offence while Shyam Kumar, who had also faced trial, was acquitted.

3. The grounds raised in this criminal appeal are that the impugned judgment is contrary to the facts of the case and the law applicable; the oral evidence is not supported with medical evidence; there is complete absence of corroboration from independent witnesses; the interested witnesses have given testimony full of contradictions, omissions and improvements; appellant is a first offender facing trial for last eight years, therefore he should be given the benefit of Section 360 of Cr.P.C. It is, therefore, prayed that the criminal appeal should be allowed and the appellant should be acquitted.

4. At the stage of final arguments, only the State submitted arguments while the appellant remained absent.

5. Record of the trial court has been perused.

6. In this case three persons from the complainant’s side are claimed to have suffered injuries and all three of them have been examined as prosecution witnesses. They are Jeevan Mishra (PW/3), Laxmi Prasad Mishra (PW4) and Vishnu Prasad Mishra (PW/9). Dr. O.P. Dubey (PW/1) was posted in District Hospital Damoh, who examined the injured Vishnu Prasad radio-logically and found fracture in his right parietal bone. Dr. K.L. Adarsh (PW/2) was posted in Primary Health Center Batiya Garh, who had medically examined all the three injured persons and prepared their MLC report. Dr. A.K. Tiwari (PW/6) is the Surgeon who prepared the query report marked as Ex.P/22 and Dr. Vijay Kumar Choudhary (PW/8) was another Surgeon posted in District Hospital Damoh, who gave treatment to injured Vishnu Prasad Mishra. Khoob Singh (PW5) and Komal Singh (PW12) are the independent witnesses who have been examined by the prosecution in support of its case. Ganesh Prasad Tiwari (PW/7) is the Patwari who prepared the Najri Naksha, while Balwan Singh (PW/10), Virendra Bahadur (PW/11) and Ramnath Singh (PW/13) are seizure/arrest witnesses. Defence too has examined Dr. K.L. Adarsh (DW-1) to prove the injuries caused to appellant and his companion Shyam Kumar in the incident. Ex.P/1 to P/26 and Ex.D/1 to D/2(c) are the documentary evidence produced by the two sides.

7. According to prosecution, the incident occurred on 28.02.1998, in which three injured victim sustained injuries from the prosecution side. Dr. K.L. Adarsh (DW/1) has t