1 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL JURISDICTION CRIMINAL APPEAL NO.1245 OF 2007 Hasin Abdul Hamid Shaikh .. appellant -versus The State of Maharashtra .. Respondents. Mr. Khan Abdul Wahab for the Appellant. Mrs P.P. Bhosale, APP for the State. CORAM: V. M. KANADE, J. DATED: 23rd March, 2010 P.C. 1. Heard learned counsel, appearing on behalf of the appellant. He stated that the appellant has been convicted by the Sessions Court, for the offence punishable under section 307 of the Indian Penal Code. The prosecution has examined PW-1, who is the complainant and the person who is injured in the said incident. His wife is P.W.10. 2. I have perused evidence of the complainant and his wife PW-10 and both these witnesses have categorically stated that the appellant had assaulted P.W.1 with the sword. The Doctors PW-13, PW-16, PW-17, in the evidence have stated that the following injuries were found on his person. 2 i) CLW below right knee joint 5 x 1 cm bone deep bleeding present. ii) CLW below right knee joint 3 x 1 cm mussle deep bleeding present iii) On shin 0.5 x 0.5 cm skin deep. iv) CLW zigag at right parietal region 10 x 0.5 x 0.5 cm skin deep bleeding present. 3. Learned counsel, appearing on behalf of appellant submitted that the offence under section 307 of the Indian Penal Code was not made out by the prosecution since the injuries which were found on the person of the complainant could not be stated to be the injuries which could have resulted into the death of the complainant. He submitted that the Sessions Court had erred in awarding the sentence and convicting the appellant under section 307 and 324 of the Indian Penal Code. 4. I find there is some substance in the submission of learned counsel for the appellant. The prosecution initially examined PW-13 Dr. Smt. Meenakshi Kulkarni. She has stated in her evidence that the head injuries are simple in nature and thereafter the prosecution examined one Dr.Shashank Patil- PW-16, who stated that the injury Nos 1 to 3 were simple in nature. The prosecution, therefore, examined one Dr. Amin Shailendra Shah, who has also stated that the injury Nos l & 2 are not simple in nature. He also stated that those injuries would not affect the life of person. 3 5. Taking into consideration the evidence of these three Doctors, therefore, in my view, it cannot be said the offence under section 307 of the Indian Penal Code was attracted. Firstly the said injuries are not to vital organs of the body. Secondly there was no fracture and thirdly two Doctors have given their opinion that the said injuries are simple in nature. The Trial Court, therefore, in my view erred in convicting the appellant for the offence punishable under section 307 of the Indian Penal Code. 6. However, in my view, there is sufficient material on record to indicate that the appellant assaulted the complainant and caused the said injuries in view of the statement of PW-1 and PW-10. Their statements have been corroborated by three Doctors PW-13 and 16 and PW-17. All the Doctors have given opinion that the said injuries will be caused by sword, therefore, in my view the Trial Court was justified in convicting the accused for the offence under section 324 of the Indian Penal Code. In the result, the appeal is partly allowed. The conviction of the appellant under section 307 of the Indian Penal Code is set aside. The conviction under section 324 of the Indian Penal Code is confirmed. The maximum sentence for the offence under section 324 of the IPC is three years. The sentence awarded by the Sessions Court for the offence punishable under section 324 of IPC ie two years and under section 506 of IPC ie for two years. The Appellant, therefore, be 4 released forthwith since he has already undergone the sentence of two years unless he is required in any other case. The appeal is accordingly disposed of. ( V.M. KANADE, J.)