On refusal to vacate the house by Bhajan Singh, the accused assaulted him with axe, resulting into injuries on his head, left eye and face.(29.07.2020) This criminal appeal u/s 374(2) Cr.P.C. has been filed by the appellant being aggrieved by the judgment dated 30.04.1998 passed by learned Second Additional Sessions Judge, Jabalpur in Session Trial No. 544/1995 convicting the appellant for the offence punishable u/s 324 IPC and sentenced to undergo RI for 1 year with fine of Rs. 1,000/- also with default stipulation.Thereafter, on intervention of Bedi Lal (PW-6), Milan Singh (PW-5) and Gopal, the accused ran away from the spot.An FIR was registered on the same day for the offence punishable under Section 307 IPC.Medical Examination of the injured/complainant Bhajan Lal was also conducted by the police 2 Cr.A. No. 1308/1998 and performed by Dr. Girish Bajpai (PW-2).After completing all other formalities, the police filed the charge-sheet.The learned trial Court has framed the charge of Section 307 IPC against the appellant.The appellant abjured his guilt, hence, the Court proceeded with trial.The learned trial Court did not find the appellant guilty for the offence of Section 307 IPC but found sufficient evidence to convict him in lesser offence i.e. Section 324 IPC and passed the sentence as aforesaid.Learned amicus curiae for the appellant submits that the learned Trial Court erred in passing the judgment of conviction whereas the appellant did not commit any offence and also there is no evidence available on record against him.The learned trial Court overlooked the fact that the evidence of the complainant Bhajan Lal (PW4) is unreliable and contrary to the FIR, police statement as well as medical evidence.Furthermore, his evidence is also not corroborated with the evidence of any other independent witness.The injury was sustained to Bhajan Lal due to falling down.He further submits that while recording the conviction against the present appellant, the learned trial Court did not consider the evidence in proper manner.There are material contradictions and omissions in the statement of prosecution witnesses, therefore, it prima facie appears that the appellant was falsely implicated in the present case by the complainant with malafide intention.The prosecution has also failed to produce the seized axe before the Court which was alleged to be 3 Cr.A. No. 1308/1998 seized from the possession of appellant.Apart from that, the learned Court also erred in not giving the benefit of probation to the appellant as per Section 360 of Cr.P.C being first offender.In this regard, he also relied on the judgment of the Hon'ble Apex Court in the case of Dilbag Singh Vs.With the aforesaid submissions, learned amicus curiae prays for allowing this appeal.With the aforesaid submissions, he prays for dismissal of this appeal.5. Heard both the parties and perused the record.On perusal of MLC report of complainant as well as statement of Dr. Girish Bajpai (PW-2), there were four injuries found which were 4 Cr.A. No. 1308/1998 simple in nature.The relevant paras of statement of Dr. Girish Bajpai (PW-2) are also quoted as under: -1- ^^&& eSus mldk ijh{k.k fd;k Fkk rFkk eSus ijh{k.k esa fuEufyf[kr pksVsa ikbZ %& 1- ,d dVk gqvk ?kko] lh/kh vka[k ds mij 2 ls-eh- x vk/kk ls-eh- lkbZt dk Fkk ftlls [kwu cg jgk Fkk] 2- ,d dVk gqvk ?kko] tks fd nkfgus xky ij 2 ls-eh- x 1 x 1 vkdkj dk Fkk A 3- ,d dVk gqvk ?kko] tks fd ck;sa vksj gksaB ij Fkk tks vanj ls ckgj dh vksj fudy jgk Fkk A mldk vkdkj 4 x 2 peM+h rd xgjk vFkkZr xky rd fudy x;k Fkk xky dh mij lrg ls fupyh lrg rd fudy x;k Fkk A vkj ikj 4- ,d dVk gqvk pksV tks fd ck;ha vka[k ds mij 2 x ls-eh- 2 x 2 lsa-eh- vkdkj dh Fkh A 2- ;g lHkh pksVas fdlh l[r ,oa /kkj/kkj oLrq ls igqpkbZ xbZ Fkh pksVsa mipkj ds 2 ls 4 ?kaVs dh vof/k ds vanj igqp a kbZ gS izxfr lHkh pksVa sa lk/kkj.k Fkh----------AFurther, in his cross examination, Dr. Girish Bajpai ( PW-2) specifically stated as under :-mijksDr pksVsa mipkj ds pkj ?kaVs iwoZ dh ugha gks ldrh A u'ks dh gkyr es ckj ckj uqdhyh oLrq ij ckj ckj fxjus ls ;g pksVas vk ldrh gS----------AIt is true, doctor Girish Bajpai has opined that due to intoxication and fallen down upon some pointed article, said injuries could be sustained but in the cross examination of complainant (Bhajan Lal), the appellant/accused did not give any suggestion in this regard so it can not be said that victim was fallen down in some pointed article and sustained injuries or at the time of incident he was intoxicated.Therefore, it is apparent that the injuries found on the person of the complainant were caused with hard and sharp object, however same were simple in nature.Cr.A. No. 1308/1998Now the next question for consideration is whether the appellant/accused inflicted injury to victim Bhajan Lal (PW-4) ?During trial, the learned trial Court has recorded the statement of six prosecution witnesses so also of accused under Section 313 of Cr.P.C. In examination in chief, the complainant- Bhajan Lal (P.W.-4) stated that when he was in the house of elder brother of his father (Bade Pita Ji), the accused was telling to the son of his father's elder brother to vacate the house.Then, the complainant requested the accused not to ask to vacate the house in rainy season.Thereafter, the accused assaulted him with axe.He further stated that after first assault, he became unconscious for three hours.Thereafter, he along with Bedi Lal, Milan Singh and Gopal Singh went to the police station to register the FIR.He also stated that he was sent to Victoria Hospital, Jabalpur, and thereafter was referred to Medical College, Jabalpur, where he was admitted for 7-8 days, The FIR was lodged promptly.In his cross examination, he admitted his relation of being maternal uncle of the accused.He narrated a different version than that of his chief examination saying that the accused was telling to his elder mother (Badi Maa) to vacate the house.He also admitted that the disputed house is in the name of mother of accused.Thus, some discrepancies are found in his statement and also on the point of his relation with the accused but it is well settled principle of law that it is difficult for witness to depose exact version of incident revealing every minute detail of incident.Cr.A. No. 1308/1998 The complainant is found stable on the point that the accused assaulted him with axe on the dispute arose from vacating the house.Further, according to the complainant, when the quarrel was going on, Milan Singh, Bedi Lal and Gopal Singh intervened and saved his life.Milan Singh was examined as PW-5 but he has turned hostile.He stated that he saw the complainant in injured condition in front of the house of Bedi Lal.He stated that when they reached Police Station, the accused was already there.In cross examination, Milan Singh has denied the fact that the accused assaulted the complainant with an axe in his presence.He has also denied the fact of intervention with Bedi Lal as well as seizure of axe from the possession of accused.He has also turned hostile and not supported the case of prosecution.He has denied all the facts put forth by the prosecution.Gopal Singh who was also said to have seen the incident, has not been examined by the prosecution.Such a witness comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone.the accused did not challenge his presence on the spot and the statement of the complainant and Milan Singh show that some quarrel took place between the complainant and accused due to dispute of house which belongs to mother of accused.The complainant did not want to vacate the same in rainy season.There is some family relation between the accused and complainant, hence, it can be presumed that the quarrel had taken place for the house and the accused hurt the complainant.

Sections cited: Section 324 in The Indian Penal Code, Section 307 in The Indian Penal Code