K. U. Chandiwal, J. - (1.) The appellant impugns conviction recorded in Sessions Case No. 87/2011 by learned Extra Joint Ad hoc Additional Sessions Judge, Nanded, for offense under Section 307 of IPC, directing to suffer rigorous imprisonment for five years and to pay fine of Rs. 2,000/-; in default, to suffer simple imprisonment for six months; for offense under Section 452 of IPC, to suffer rigorous imprisonment for one year and to pay fine of Rs. 1000/-; in default, simple imprisonment for three months, for offense under Section 4 read with Section 25 of Arms Act, to suffer rigorous imprisonment for three months. All sentences were directed to run concurrently. PW No. 3 Smt. Anita wife of injured Nihalsing lodged report to Police Station, Nanded, that the appellant knew her husband, being from same area of Punjab, and used to visit her house and consume liquor. He used to accompany her husband even at Toys Vending shop/cart. Since her husband had substantial earning in the week, appellant demanded money in the night of 1st of July, 2010. Her husband did not budge, and accede to the demand. Resultantly, appellant felt outraged and annoyed. Altercation ensued, and he assaulted her husband (PW No. 1 Nihalsing) with sword, giving several blows with an intent to kill. She screamed and yelled for assistance. Her husband was removed to Civil Hospital in an auto rickshaw in injured, unconscious condition. Based on her FIR, vide Crime No. 235/2010, investigation was carried. The sword with bloodstains was taken charge under Panchnama. The material in the house was seen scattered, demonstrating scuffle. The injured (PW No. 1) was hospitalized for 26 days, most of the time he was unconscious. His statement under Section 161 Cr.P.C. was recorded on 28.7.2010. It was under observation and presence of Medical Officer. Appellant was searched and arrested from Gurudwara. Muddemal was sent to the office of Chemical Analyzer. Chargesheet was filed against the accused/appellant before the learned Judicial Magistrate, First Class, Nanded, who committed the same to the Sessions Court. Charge below Exh. 4 was explained to the accused in vernacular. He denied the same. His defense is of total denial.
(2.) PW No. 3 Anita is wife of the injured. PW No. 1 Nihalsing is injured. PW No. 2 Dr. Mohini Patil had examined the injured. PW No. 4 Shivram Ausekar acted as a Panch for spot panchnama (Exh. 20). He has identified the sword (Art. A). PW No. 5 Dr. Atish Gujrathi had treated the injured Nihalsing. He found Nihalsing not in a position to communicate. He was disoriented, suffered multiple injuries, cutthroat injuries. Second injury was on right ear. There was contused lacerated wound behind the ear; one of the injury was at right arm. Another injury was at elbow and wrist. He proved that Nihalsing was indoor patient from 2nd July, 2010 to 28th July, 2010. The discharge card is Exh. 24. Original case papers were brought in the Court; copies are at Exh. 25. According to him, nature of injuries was such grave, if not treated in time, there was danger to the life of Nihalsing. PW No. 6 Ravindrersingh Dhumne, API, Nanded, carried investigation in Crime No. 235/2010.
(3.) Shri Ashtekar, learned Counsel (appointed) for the appellant submits that the evidence of the wife of injured is scanty, not to be believed. She gave age of the appellant as 20 years while the appellant is 50 years old. She quoted the time of accused intruding between 6 to 7 p.m. while PW No. 1 says that accused came at the house at 4 p.m. He says, there was no previous enmity, no proof of money transaction and, hence, no motive to kill Nihalsing. The incident has taken place at 5 a.m. on 2.7.2010, while patient is admitted in the hospital at 8.20 a.m. There was no notification issued and produced under Arms Act and, consequently, there could not be a conviction for offense of possession or carrying of arms.;