1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO.906 OF 2008 The State of Maharashtra ...Appellant Vs. Prakash Jayendra Shete & 3 Ors. ...Respondents Mrs. M.M.Deshmukh, A.P.P for the State Mr. Ganesh Gole, Advocate for the Respondents CORAM : B.H. MARLAPALLE & SMT.ROSHAN DALVI, JJ. Dated : 1ST OCTOBER, 2009 P.C. : 1.We have heard Mrs. Deshmukh, learned A.P.P and Mr. Ganesh Gole, the learned Counsel for the Respondents. This is an Appeal filed under Section 377(1) of the Criminal Procedure Code, 1973 for enhancement of the sentence. 2.In Sessions Case No.28/2005 the Respondents came to be tried for the offences punishable under Section 307 and 504 read with Section 34 of the Indian Penal Code. The learned Ad-hoc Additional Sessions Judge, Ichalkaranji, District: Kolhapur by judgment and order dated 9 th May 2008 was pleased to acquit the Respondents for the 2 offence punishable under Section 504 read with Section 34 of the Indian Penal Code. However, the Respondents have been convicted for the offence punishable under Section 307 read with Section 34 of the Indian Penal Code and they have been sentenced to suffer R.I for 5 years and to pay a fine of Rs.3000/- each, in default to suffer further R.I for one year. 3.The learned A.P.P submitted that the assault by sickle by the accused No.1 was in fact aimed at the neck of P.W.4, the complainant, but he warded off the said assault and resultantly his right wrist was chopped off and therefore, this sentence of 5 years awarded by the trial Court is inadequate and not proportionate to the nature and seriousness of the crime. 4.We have perused the R & P and also the depositions of P.W.1, P.W.3 and P.W.4 along with the F.I.R filed by P.W.1 on 1 st January, 2003. We have also noted that P.W.4 immediately after incident, was taken to the CPR Hospital at Kolhapur and the severed palm was wrapped with a piece of cloth and was brought to CPR hospital. P.W.10 Dr. Bina Ruikar was the attending Doctor at CPR hospital, Kolhapur she had produced the M.L.C register before the trial Court at Exhibit-75. P.W.4 was reluctant in taking treatment at the said hospital and such an information was passed on to the CPR Police 3 Chowky. P.W.4 got himself discharged and therefore, the severed palm was taken along with him. On 3 rd January, 2003, P.W.4 was admitted to Aadhar Hospital at Kolhapur and P.W.5 Dr. Shailendra Navre treated him. He underwent a surgery to implant, though unsuccessful in implantation of the wrist and palm. He was discharged on 17 th January 2003 from the said hospital. It is not the case of the prosecution that P.W.4 was not in a condition to make any statement to the police and despite this the statement of P.W.4 was not recorded till 23 rd January, 2003 and in this statement for the first time P.W.4 came out with the allegation that the target of assault was his neck and not his palm or wrist. Mrs. Deshmukh has invited our attention to the depositions of the Investigating Officer, who stated before the Court that such a statement could not be recorded as the Doctors had informed that the patient was not in a position to make a statement. We have gone through the depositions of P.W.1 and P.W.3 who were, as per the prosecution case, the eye witness at the spot and we do not find any case to call for reconsideration of the reasons set out in support of the the sentence of 5 years awarded by the trial Court after holding the Respondents guilty of an offence punishable under Section 307 read with Section 34 of the Indian Penal Code. Hence, this Appeal must fail at the threshold. 4 5.Record and Proceedings be returned to the trial Court unless required in some other connected Appeal. [SMT.ROSHAN DALVI, J.] [B.H. MARLAPALLE, J.]