Amogsidha Bhima Pujari vs The State of Maharashtra

Vishnu Sahai, J.—The appellant aggrieved by the Judgment and order dated 16.6.1994, passed by the Vth Additional Sessions Judge, Solapur, in Sessions Case No. 229 of 1991, convicting and sentencing him to undergo RI for life, for an offence u/s 302 IPC, has come up in appeal before us.

In short, the prosecution runs as under :-

On 25.11.1991, the deceased Dhondiba Yellu Karve was grazing cattle of Ravsaheb Mahimkar, P.W. 6, in the land of the latter situated within the limits of village Antroli, Taluka South Solapur, District Solapur. At about 12 noon, the appellant reprimanded Dhondiba for grazing the cattle in his field. On this score, there was a quarrel between the appellant and Dhondiba and during the course of the same, the appellant gave three blows with axe; the first on the hand of Dhondiba, the second on the left leg and the third on the upper side of the left thigh. It is alleged that hearing the cries of Dhondiba, a large number of people, including Jagannath P.W. 4, collected there. Jagannath questioned Dhondiba as to who had assaulted him and on that Dhondiba told him that it was the appellant who had assaulted him with an axe.

Jagannath in his evidence stated that he had seen the appellant giving an axe blow on the left leg of Dhondiba.

It is alleged that when Jagannath asked Dhondiba the reason for the appellant assaulting him, he replied that since his cattle had grazed in the land of the appellant, he was assaulted by him.

Thereafter, Jagannath went and informed Ravsaheb Mahimkar, A jeep was arranged for and on the said jeep, Dhondiba who was in a precariously injured condition, was taken to police station Mandrup.

Evidence of PSO Ramchandra Mohite P.W. 7, shows that on 25.5.1991, at about 2 p.m. Dhondiba was brought in a jeep at the Mandrup police station.

Since Dhondiba was precariously injured, Ramchandra Mohite gave a yadi for his medical examination to the Medical Officer of Primary Health Centre, Mandrup.

However, as Dhondiba was hovering between life and death, it was thought proper at Primary Health Centre, Mandrup, to refer him to Civil Hospital, Solapur.

Injuries of Dhondiba were medically examined by Dr. Guruppa Nakamote P.W. 11, the same day at Civil Hospital, Solapur. Dr. Nakamote found that he had sustained two injuries namely :-

(1) Cut injuries on left ankle region, posterior aspect bleeding plus involving fracture of tibia fibula.

(2) Incised wound on left buttock region, lateral aspect 3" x 6" bone deep with pelvic bone fracture bleeding plus.

Evidence of Ramchandra Mohite P.W. 7 shows that on coming to know that Dhondiba had been sent to Civil Hospital Solapur, he issued a yadi to ASI Bhagwan Nimbalkar P.W. 13 to record his FIR. Evidence of ASI Nimbalkar P.W. 13 shows that on receiving the yadi, he proceeded to Dr. Nakamote P.W. 11 and enquired from him whether Dhondiba was in a position to make a statement and on receiving a reply in the affirmative proceeded to record the same. Statement of Dhondiba is Exhibit 45 and bears endorsement of Dr. Nakamote to the effect that Dhondiba was in a fit condition to make the said statement.

Evidence of Ramchandra Mohite P.W. 7 further shows that ASI Nimbalkar P.W. 13 gave him Dhondiba''s statement Exhibit 45 and on the basis of the same, he registered C.R. No. 12 of 1991 u/s 326/504 of IPC and Section 135 of the B. P. Act. On Dhondiba''s death which took place on the date of incident itself it was converted to Section 302 IPC.

Investigation was conducted in the usual manner. On the date of the incident itself i.e. 25.5.1991, Ramchandra Mohite asked PHC Nabilal Shaikh P.W. 8 to proceed to the scene of the offence. He went there and attached the blood stained earth and plain earth under a panchanama.

Bulk of the investigation was conducted by P.W. 14 PSI Tanajirao Bhise. On the night of the incident itself, he recorded statement of Jagannath and the next day, the statement of Mahimkar P.W. 6. On the night of the incident, at about 10 p. m. he arrested the appellant. On 27.5.1991, the appellant showed his willingness to get the weapon of assault recovered. The said information was reduced in writing under a panchanama Exhibit 20. Thereafter, along with the appellant public panchas, out of whom P.W. 3 Shivaji Koli was examined, PSI Bhise proceed to Village Antroli, wherein in his field, after removing some dry leaves the appellant took out a blood stained axe. The said recovery was made and a panchanama. During the course of investigation, PSI Bhise was handed over the blood-stained dhoti and banian of the appellant, by the wife of the appellant.

The last phase of the investigation was conducted by PSI Parshuram Mane P.W. 10. His evidence shows that PSI Bhise handed over the investigation to him on 30.5.1991.

PSI Mane sent the blood-stained articles to the Chemical Analyst, through constable Ahmed Sayed P.W. 9. Finally, after completing the investigation, he submitted the charge-sheet on 31.7,1991.

Going backwards, the autopsy on the body of the deceased was conducted by Dr. Subhashchandra Sardar P.W. 5. Dr. Sardar found five ante-mortem injuries on the corpse. Three of them namely injuries No. 1, 2 and 3 have been described as incised wounds and were situated on the buttock region, left leg and left palmer region and two of them namely injuries No. 4 and 5 have been described as cuts (gaping present) on the left thigh.

Dr. Sardar found fracture of lower third tibia and fibula of the left leg; fracture of pelvis on the left side; and dislocation on the left ankle joint.

In the opinion of Dr. Sardar, injuries No. 1 and 2 were fatal because important blood vessels and nerves were cut and were sufficient in the ordinary course of nature to cause death. He opined that the deceased died on account of trauma and haemorrhage as a result of amputation of left 1/3rd leg and injury to femoral artery.

During cross-examination, Dr. Sardar stated that had the femoral artery not been cut, the deceased would not have died.

The case was committed to the Court of Sessions in the usual manner. In the trial Court, the appellant was charged for offences punishable under Sections 302 IPC, 37(1) and 135 of B. P. Act. To the said charges, he pleaded not guilty and claimed to be tried.

During trial, in all the prosecution examined 14 witnesses. The mainstay of the prosecution evidence was the FIR which was tendered as dying declaration of the deceased. Dhondiba and the evidence of ocular witness Jagannath P.W. 4.

In defence, no witness was examined.

The learned trial Judge believed the evidence adduced by the prosecution and convicted and sentenced the appellant in the manner stated above.

We have heard Mr. M. A. Chaudhary for the appellant and Mrs. J.S. Pawar, Additional Public Prosecutor for the respondent- State of Maharashtra. We have perused the depositions of the prosecution witnesses; the material exhibits tendered and proved by the prosecution; the statement of the appellant recorded u/s 313 Cr. P.C. and the impugned Judgment.

After thoughtfully reflecting over the matter, we are of the Judgment that this appeal deserves to be partly allowed and partly dismissed. In our view, the trial Judge was in error in convicting the appellant for an offence u/s 302 IPC and instead should have convicting him for an offence u/s 304(2) IPC.

The first question is whether the involvement of the appellant in the incident has been established beyond the pale of reasonable doubt. In our Judgment, answer to that question is in the affirmative.

10A. As mentioned earlier, the sheet-anchor of the prosecution evidence is the statement of the deceased Dhondiba, which was recorded prior to his death in Civil Hospital Solapur, by ASI Nimbalkar and since he died thereafter, it would be admissible u/s 32 of the Indian Evidence Act, as a dying declaration and the ocular account furnished by Jagannath Karve, P.W. 4.

As a matter of fact, after the decision of the Apex Court rendered in the case of Khushal Rao Vs. The State of Bombay, the settled law is that conviction can be recorded/sustained on an uncorroborated dying declaration, provided it inspires confidence. In the instant case, we make no bones in observing that the dying declaration of Dhondiba recorded at the Civil Hospital, Solapur by ASI Nimbalkar P.W. 13 inspires implicit confidence and is a truthful document. In the dying declaration itself, there is endorsement of Dr. Nakamote P.W. 11 to the effect that Dhondiba was in a fit condition to make the same. The manner of the incident as unfolded in the dying declaration namely that as a sequel to the quarrel, between the appellant and Dhondiba, on the question that the cattle of the latter had grazed in the land of the former, the former assaulted the latter thrice with an axe, once each on hand, left leg and left thigh, is corroborated by the medical evidence to which we have referred to in paragraphs 3 and 7 of Judgment. Both Dr. Nakamote and Dr. Sardar found incised injuries on the said parts of the body of Dhondiba. Dr. Sardar, the autopsy surgeon, has categorically stated that injuries of the deceased could be caused by the axe shown to him (the axe recovered on the pointing out of the appellant).

There is no evidence to indicate that at the time when dying declaration of Dhondiba was recorded, he was not in a fit mental condition to make the statement. We find that in the cross-examination neither any question has been put to this effect to Dr. Nakamote nor to ASI Nimbalkar. At. any rate, in our view sound common sense says that the speech faculty of the deceased who had only received injuries on the left palmer surface, left leg and left thigh would not have been impaired as of result of the injuries inflicted on him.

The place of incident as set out in the dying declaration is corroborated by the circumstance that on the same, PHC Nabilal Shaikh P.W. 8, oh the date of the incident itself, found blood-stained earth. On the said earth, the Chemical Analyst found blood of the blood group of the deceased namely AB. It may be mentioned that blood group of the appellant was B.

In our view, the instant was one of those cases, where on the dying declaration of the deceased itself, the involvement of the appellant in the incident could have been said to be established.

We may mention that the learned Counsel for the appellant did not challenge the involvement of the appellant, but we have gone into this exercise because no conviction can be recorded/sustained on a concession made by the counsel of the appellant. The burden in a criminal case is always on the prosecution to establish the guilt of the accused beyond the pale of reasonable doubt.

10B. Fortunately, in this case there is plurality of evidence in the form of statement of Jagannath Karve P.W. 4. From his evidence, it appears that he is an wholly natural witness of the incident. In his statement he stated that at the time of the incident, he was on the field of Beldar, where he was grazing cattle and heard shouts of Dhondiba who was also known as "Anna" and on hearing the same, reached the place where the appellant was assaulting Dhondiba. He saw him assaulting Dhondiba with an axe on the left leg. He further stated that Dhondiba told him that since he had grazed his cattle in the land of the appellant, the appellant assaulted him. The manner of incident as given by him is also in conformity with the medical evidence.

We find that this witness had no rancour or malice against the appellant and in the absence of the same, we are not prepared to accept that without any reason or rhyme, he would have falsely implicated the appellant.

In our view, his testimony inspires implicit confidence and also by itself is sufficient to prove the involvement of the appellant in the incident.

Apart from the above, tremendous assurance is forthcoming to the prosecution case, by the circumstance that two days after the incident i.e. on 27-5-1991, a blood stained axe which was concealed below dry leaves, was recovered on the pointing out of the appellant in the presence of public panchas, out. of whom one namely Shivaji Koli P.W. 3. has been examined by the prosecution. We have gone through the testimony of Shivaji Koli and the police witness PSI Tanajirao Bhise P.W. 14 and find that their evidence inspires implicit confidence.

It is significant to point out that Shivaji Koli is an independent witness, having no axe to grind against the appellant and in that view of the matter, unless the recovery would not have been genuine, he would not have falsely deposed about it.

It is true that PSI Tariajirao Bhise is a police witness but way back in the year 1956, the Supreme Court, in the case of Aher Raja Khima Vs. The State of Saurashtra, held in para 40 that the presumption that a person acts honestly applies equally to a Police Officer and it is not a sound rule of appreciation of evidence to approach the testimony of a police witness with distrust. We find no blemish in the evidence of PSI Bhise.

It is significant to point out that the axe was sent to the Chemical Analyst who found blood group of AB (blood group of the deceased) on it.

In our view, the learned trial Judge was wholly justified in holding the involvement of the appellant in the incident as established beyond any shadow of doubt.

This leaves us with one question namely the offence made out and this is the bone of contention between the counsel for the parties.

Whereas, Mr. A.M. Chaudhary learned Counsel for the appellant strenuously urged that even if the prosecution case is accepted in entirety, no case beyond that stipulated by Section 304(2) IPC would be made out. Mrs. J.S. Pawar, Additional Public Prosecutor with her customary tenacity urged that there cannot be even an iota of doubt that the offence made out would only be one u/s 302 IPC.

We now, propose to examine this highly contentious question.

Mrs. Pawar urged that in the instant case, the ratio laid down by the Supreme Court in the time-honoured decision of Virsa Singh Vs. The State of Punjab, , would apply on all fours. She urged that the substance of the ratio as laid down by the Apex Court, in para 12 of the said decision, is that for an offence to fall within the ambit of clause thirdly of Section 300 IPC, the injuries caused should be those intended, in contra-distinction to being accidental, and they, as per the medical evidence should be sufficient in the ordinary course of nature to cause death.

Mrs. Pawar urged that in as much as the autopsy surgeon Dr. Sardar, candidly stated that the injury Nos. 1 and 2 of the deceased were fatal and sufficient in the ordinary course of nature to cause death, and there being nothing to indicate that they were accidental, this is a tailor-made illustration of the application of clause thirdly of Section 300 IPC.

We must frankly admit that on the first blush, the submission canvassed by Mrs. Pawar appeared to be pregnant with merit but, a deeper scrutiny reminded us of the time-honoured saying that first impression, are often deceptive.

In our view, the offence would only fall in the ambit of Section 304(2) IPC.

We find in the instant case that autopsy surgeon Dr. Sardar in his cross-examination has candidly stated that had the femoral artery of the deceased been not ruptured, he would not have died. This admission was not. challenged by any cross-examination on the part of the Public Prosecutor or sought to be probed by the learned trial Judge. This being the position, the said admission of Dr. Sardar, which appears to be in consonance with common sense has to be accepted by us.

16A. Clause thirdly of Section 300 IPC provides that culpable homicide would be murder if the act by which death is caused "is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death."

The Supreme Court in Virsa Singh Vs. The State of Punjab, , has held that an essential ingredient for the application of clause thirdly is, that there should be an intention to inflict the bodily injury which has been inflicted.

That intention, is not only in respect of the external injury which has been inflicted but, also in relation to the internal injury inflicted.

We feel in the instant case that though it could be said that the appellant intended inflicting the external injury with an axe on the left thigh of the deceased, for there is nothing in evidence to show that it was accidental, but it cannot be said with reasonable certainty, that he intended causing the internal injury which involved the rupture of the femoral artery; an artery which was beneath the said external injury. That being the position, in our Judgment clause thirdly would have no application. What can be said is that when the appellant assaulted the deceased on his left thigh, he had the knowledge contemplated by clause thirdly of Section 299 IPC that he was likely to cause death of the deceased and that being so, he would only be guilty for an offence u/s 304(1) IPC,

In this connection, it would be pertinent to refer to the three decision of the Supreme Court, namely those reported in : -

(i) Laxman Kalu Nikalje Vs. The State of Maharashtra, .

(ii) Harjinder Singh alias Jinda Vs. Delhi Administration, .

(iii) Gokul Parashram Patil Vs. State of Maharashtra, .

We now propose analysing each of the said decisions

17A. In Laxman Kalu Nikalje Vs. The State of Maharashtra, , the appellant had assaulted the deceased with a knife on the chest resulting in an injury which was below the outer 1/3rd region of clavicle and penetrating into the chest cavity. The said injury was described by the doctor as sufficient in the ordinary course of nature to cause death. Before the Supreme Court, the submission made by Mrs. Pawar, namely that inasmuch as the said injury was sufficient in the ordinary course of nature to cause death, clause thirdly of Section 300 IPC, would have application, was canvassed. Hidaytullah, Chief Justice (as he then was) repelled the said . submission in para 11 and observed that for application of clause thirdly, there should not merely be an intention to inflict the external inflicted but also to cause the internal injury caused. The learned Chief Justice observed that no intention could be fastened to the appellant to cause rupture of auxiliary artery. Consequently, the Chief Justice felt that the case would not fall in the dragnet of clause thirdly of Section 300 IPC but, under clause thirdly of Section 299 IPC, the breach of which is punishable u/s 304(2) IPC. His Lordship felt that when the appellant assaulted the deceased on the chest region, it could be reasonably inferred that he had the knowledge that he could rupture the auxiliary artery. Hence, the conviction of the appellant u/s 302 IPC was set aside and instead he was convicted and sentenced to undergo 7 years RI u/s 304(2) IPC.

17B. In Harjinder Singh alias Jinda Vs. Delhi Administration, , pursuant to a knife assault by the appellant a stab-wound bearing dimensions of 1"x 1/4" x depth on left thigh upper and below inguinal ligament was caused to the deceased. On internal examination, femoral artery was found to be damaged. The same argument which was canvassed before the Apex Court in Laxman Kalu Nikalje Vs. The State of Maharashtra, was canvassed on behalf of the prosecution namely that inasmuch as the injury inflicted was sufficient in the ordinary course of nature to cause death, according to the medical witness, the offence would fall within the ambit of clause thirdly of Section 300 IPC.

Repelling the argument, the Supreme Court in para 9 observed that on the facts of the case, it could not be said with any definitiveness that the appellant aimed the blow on this part of the thigh knowing that it would rupture artery. It felt that on the facts of the case, only an offence u/s 304 Part. I IPC was made out and consequently, converted the conviction of the appellant from Section 302 IPC to that u/s 304 Part I IPC and sentenced him to undergo seven years RI.

17C. In Gokul Parashram Patil Vs. State of Maharashtra, , as a sequel to the assault with a knife, near the clavicle region, superior vanacava was cut and again the argument canvassed in AIR 1968 SC 1320, (supra) that inasmuch as the said injury, was sufficient in the ordinary course of nature to cause death, conviction of the appellant had been correctly recorded by the High Court u/s 302 IPC was canvassed from the side of the prosecution. Rejecting the said argument and relying upon Laxman Kalu Nikalje Vs. The State of Maharashtra, and Harjinder Singh alias Jinda Vs. Delhi Administration, , A. D. Khosal, J. speaking for the Court, took the same view as in Laxman Kalu Nikalje Vs. The State of Maharashtra, and held that there was no intention to inflict the internal injury leading to the rupture of superior vanacava and consequently, converted the conviction of the appellant from Section 302 IPC to that u/s 304(2) IPC and sentenced him to undergo five years RI.

In the instant case, not only on account of the ratio laid down in the said cases of the Supreme Court would the offence fall in the ambit of Section 304(2) IPC but also on account of the peculiar circumstances in which the incident took place. The dying declaration of the deceased Dhondiba reveals that the assault on him by the appellant with an axe was a sequel of a sudden quarrel occasioned on account of his cattle grazing in the field of the appellant. It also shows that only three axe blows were given by the appellant and all three of them were on non-vital parts of the body, one each on palmer surface of hand, left leg and left thigh. In our view, these facts lead to the irresistible inference that the appellant did not want to commit the murder of the deceased. However, considering the fact that the weapon used by the appellant was an axe and the force with which it was used was such that extensive internal damage resulting in the fracture on left tibia fibula and amputation of the lower 1/3rd of left leg and rupture of femoral artery was the result, it could be reasonably inferred that the act of the appellant would fall within the clause thirdly of Section 299 IPC, breach of which is punishable u/s 304(2) IPC.

Before parting with the Judgment, we would be falling in our fairness if we do not refer to the three decisions of the Supreme Court cited by Mrs. Pawar. They are :-

(i) State of Andhra Pradesh Vs. Rayavarapu Punnayya and Another,

(ii) Bakhtawar and Another Vs. State of Haryana, and

(iii) Jaspal Singh Vs. State of Punjab,

We have gone through the aforesaid decisions and we find that they were rendered on the facts peculiar to them. In our view, they have no application to the instant case.

In State of Andhra Pradesh Vs. Rayavarapu Punnayya and Another, , the facts were that the deceased was dragged out from a passenger bus and thereafter, five accused persons with heavy sticks, assaulted him and inflicted on his person 16 injuries out of which 7 were grievous and had resulted in the internal damage enumerated below :-

Dislocation of distal end of proximal phalanx of left middle finger.

Fracture of right radius in its middle.

Dislocation of lower end of right ulna,

Fracture of lower end of right femur.

Fracture of medial malleolus of right tibia.

Fracture of lower 1/3 of right fibula.

Dislocation of lower end of left ulna.

The medical evidence was that the injuries suffered by the deceased were sufficient in the ordinary course of nature to cause death. There-was no cross-examination of medical witnesses. Relying upon Anda and Others Vs. The State of Rajasthan, , Sarkaria, J. inspite of the fact that the injuries were inflicted on non-vital parts of the body took the view that the case would fall squarely within the ambit of clause thirdly of Section 300 IPC.

In Bakhtawar and Another Vs. State of Haryana, , the facts were that the deceased while ploughing his land, had noticed the two appellants cutting bush from his jowari field and taking it to the land, which was in their possession and when the deceased asked the appellants, not to do so, the appellants assaulted him with sticks and blunt side of ganasi, resulting in 12 contused wounds on his person; the first ten were distributed between hands, legs abdomen left buttock and left side of chest, 11 and 12 were located on the head. Injuries 11 and 12 read thus :-

One contused mark 2" x 3/4" bone deep on the left parietal region of the scalp 4" above the pinna of the left ear. There was fracture of the left parietal bone and the injury was of grievous nature and caused by blunt weapon.

One contused mark 1 1/2" x ''/2" bone deep on the right parietal region of the scalp 2 '' /2" above the pinna of the right ear. There was fracture of the right parietal bone. The injury was of grievous nature and caused by blunt weapon.

On internal examination beneath injuries 11 and 12, the doctor found that there was fracture of left parietal bone and right parietal bone, and hence, in our view also, it was rightly stated by him that injuries were sufficient in the ordinary course of nature to cause death The Supreme Court relied on Virsa Singh Vs. The State of Punjab, and State of Andhra Pradesh Vs. Rayavarapu Punnayya and Another, and took the view that the case would only fall within the ambit of clause thirdly of Section 300 IPC.

In Jaspal Singh Vs. State of Punjab, , the facts were that the appellant Jaspal Singh had taken a loan of Rs. 1500/- from the deceased sometimes prior to the date of the incident. On 16-7-1983, at about 7.30 p. m. when the deceased along with others came to the market area where the appellant was running a restaurant and called the appellant and asked him to make repayment of the loan, the appellant got infuriated and inflicted two knife blows on the person of the deceased, one on groin and the other on his back behind chest, resulting in the following injuries :-

Stab wound 2 cm x 2.2 cm on the back of left side of chest, 2 cm below and 2 cm medial to inferior angle of left scapula oblique.

A stab wound 2 cm x 1cm x 8 cm on the front of right groin region in its middle 10 cm from the symphysis public, on dissection of wound, blood was found present in the underlying structure. Direction of the stab was upwards and medially, femoral artery and femoral vein corresponding to the stab were cut.

An abrasion on 2.5 cm x 1 cm on the left side of forehead.

An abrasion 1 cm x 8 cm on the right side of nose.

Injury No. 2 had ruptured the femoral artery as well as the femoral vein & in the opinion of the doctor, the shock and haemorrhage caused by this injury was sufficient in the ordinary course of nature, to cause death of Devinder Pal Singh.

Before the Supreme Court, relying on Harjinder Singh alias Jinda Vs. Delhi Administration, , it was canvassed from the side of the appellant, that the offence would fall within the ambit of Section 304 IPC.

The Supreme Court repelled the said submission and in para 7 observed that the appellant had inflicted a stab wound on the chest of the deceased (back side) and another stab wound on his groin, the latter injury being 8 cm x deep pelvic vessels, and resulting in femoral vein and femoral artery being ruptured. It also observed that when Varinder Pal Singh P.W. 6 tried to intervene, the appellant also inflicted two knife blows on parts of his body as the deceased.

In para 7, the Supreme Court observed that the appellant intended committing an offence within the ambit of Section 302 IPC. It also held that "The intention of the person causing injury has to be gathered from a careful examination of all the facts and circumstances of each given case."

(emphasis supplied).

We feel that Jaspal Singh Vs. State of Punjab, would have no application in the facts of the present case. In the instant case, unlike Jaspal Singh Vs. State of Punjab, , wherein the evidence was that one of the knife blows was inflicted on the back side of the chest of the deceased, the definite ease of the prosecution is that the appellant inflicted all the three axe injuries on non-vital parts of the body of the deceased namely palmer surface, left leg and left thigh.

Again unlike Jaspal Singh Vs. State of Punjab, , no injured witness was assaulted on the back side of the chest with a knife by the appellant. On the facts before it, the Supreme Court felt that the intention was to commit the murder of the deceased.

We do not find any merit in Mrs. Pawar''s submission that the injuries on the palmer surface indicate that blows with axe must have been aimed on the vital parts of the body of the deceased like head, face or chest and the deceased in trying to save himself received injury on palmer surface. It should be borne in mind that neither the deceased nor Jagannath Karve P.W. 4 have stated that injuries inflicted on the palmer surface of the deceased were caused on the manner suggested by Mrs. Pawar.

25A. Mrs. Pawar''s submission is certainly ingenious but, is not backed by evidence. It is in the realm of conjecture and Courts decide cases on concrete evidence and not on conjecture. We accordingly reject it.

In view of the facts and reasons mentioned above, we feel that the authorities cited by Mrs. Pawar do not have bearing.

In our Judgment, for the reasons mentioned above, learned trial Judge erred in convicting the appellant for the offence u/s 302 IPC and only an offence u/s 304(2) IPC is made out against him.

The question is what should be the quantum of sentence which should be awarded to the appellant. Considering the circumstance that as a sequel to the axe assault launched by the appellant on the deceased apart from rupture of femoral artery, his left tibia and fibula were fractured and lower 1/3rd of left leg had to be amputated, we do not think that a sentence of five years RI (the sentence awarded in Gokul Parashram Patil Vs. State of Maharashtra, ) would meet the ends of justice. We feel that a sentence of seven years RI would meet the ends of justice.

In the result, this appeal is partly allowed and partly dismissed. Although, we acquit the appellant for the offence u/s 302 IPC and set aside his conviction and sentence of life imprisonment on that count, but we find him guilty for the offence u/s 304(2) IPC and sentence him to undergo seven years RI. The appellant is in jail, and shall only be released therefrom after he serves out his sentence.

Office is directed to inform the Superintendent of Jail wherein the appellant is detained and the trial Court about the operative part of our Judgment, within two weeks from today.

Before parting with the Judgment, we would like to record our appreciation for the extremely able assistance rendered to us by the learned Counsel for the parties in the disposal of this appeal.

In case an application is made for a certified copy of this Judgment, by the counsel for the parties, the same shall be issued within four weeks from today.