JUDGMENT : The appellant/accused has challenged his conviction for the offence punishable under Section 307 of IPC and sentence of rigorous imprisonment for 5 years and fine of Rs.5000/-in default simple imprisonment for 6 months imposed by Ad-hoc Additional Sessions Judge-2, Chandrapur in Sessions Case No. 110/2006 decided on 15.6.2007. 2. It is not disputed that complainant Anusaya (PW5) is a married woman having a son and a daughter from her husband. It is also not disputed that the appellant is also married having a wife and children. It is further not disputed that both PW5 Anusaya and the appellant were residing at village Saikheda. 3. According to the prosecution PW5 Anusaya is the wife of the appellant. They had shifted to village Waigaon just before the incident dated 1.9.12006. On 1.9.2006 PW5 Anusaya and the appellant were staying at the house of Gurudeo Shrirame. Around 4 a.m. the appellant told PW Anusaya that they have to go to Nagpur in search of work and asked her to collect the luggage. PW Anusaya replied that they would go in the morning. Thereupon the appellant took out an axe and assaulted her on her hand and head because of which she sustained bleeding injuries. She raised alarm and shouted. The neighbours rushed there, snatched away the axe from the appellant and took PW5 Anusaya to the hospital at Bramhapuri. She was admitted in Rural Hospital at Bramhapuri. Dr. Jotsna Mhaskar, Medical Officer, Rural Hospital, Bramhapuri (PW4) examined her and found four incised wounds on frontal area, on parietal region, on paritooccipital region and on left elbow. She also found fracture of elbow joint. On the same day, Dr. Jotsna Mhaskar examined the appellant and found one lacerated wound on parietal region and contusion at the same area. Accordingly Dr. Jotsna Mhaskar issued injury certificates Exhs. 23 and 26 respectively. The statement of PW Anusaya (Exh.29) was recorded. Her blood stained clothes were seized. The blood stained clothes of the accused as well as axe was also seized. On the basis of the statement of PW Anusaya, Crime No. 81/2006 under Section 326 of IPC was registered against the appellant at P.S. Bramhapuri. After necessary investigation, charge sheet under Section 307 of IPC was filed against the appellant. 4. The blood stained clothes of the accused as well as axe was also seized. On the basis of the statement of PW Anusaya, Crime No. 81/2006 under Section 326 of IPC was registered against the appellant at P.S. Bramhapuri. After necessary investigation, charge sheet under Section 307 of IPC was filed against the appellant. 4. The defence of the appellant as disclosed from the written statement of the appellant at Exh.47 is that PW5 Anusaya is not his wife. She was driven out by her husband because of her loose character. The appellant used to go to her occasionally and used to have sex with her on payment, as his wife was continuously sick. On the day of incident the appellant had gone to village Waigaon, he paid Rs.200/-to PW Anusaya, stayed with her and had sex with her. Around 3 a.m. she asked him to accompany her to Nagpur and marry with her at Arya Bhawan. He refused the proposal and started leaving the house because of which she was enraged. She lifted the axe and hit it on his head. The appellant tried to save himself from the blow, but the helve of the axe hit against his head and he was injured. She again assaulted him with the axe. Thereupon the appellant snatched away the axe from her and hit her with the axe in order to enable himself to go out. Thereupon he went to the Police Station. However, the Police made him to sit in the Police Station and did not listen to him. 5. The prosecution examined 7 witnesses including PW5 Anusaya Vitthal Mangar, PW2 Kavdu Somaji Nannaware, PW4 Dr. Jotsna Mhaskar and PW7 PSI Girsawale. 6. After considering the evidence on record, the trial Court held it was the appellant who was the author of the injuries on the person of the PW Anusaya. The trial Court accordingly convicted and sentenced the appellant as stated above. The said conviction and sentence is under challenge. 7. I have heard Shri A.S. Band, Advocate holding for Shri R.M.Daga, Advocate for the appellant and Shri K.S. Dhote, APP for the State. With their assistance I have also gone through the record and proceedings of the trial. 8. The evidence of PW5 Anusaya shows that the appellant is her third husband. They were residents of the same village Saikheda. Thereafter they moved from village to village. With their assistance I have also gone through the record and proceedings of the trial. 8. The evidence of PW5 Anusaya shows that the appellant is her third husband. They were residents of the same village Saikheda. Thereafter they moved from village to village. The incident took place at village Waigaon where they were lastly staying. She was doing labour work, but the appellant was not doing any work. At about 3 a.m. the appellant told her that they would go to Nagpur for work. She asked the appellant to wait till morning, but the accused insisted for going immediately. The appellant took out an axe from the roof and gave blow on the head of Anusaya. She shouted. She sustained three injuries on head and left hand. The neighbours including Kavdu (PW2) , Shrirame, his sister and other persons rushed. Kavdu snatched away the axe from the appellant. PW Anusaya and the appellant were brought first to Bramhapuri Police Station. Thereafter Anusaya was taken to the hospital and admitted there. 9. During cross-examination it was suggested to Anusaya that in the morning the appellant returned from attending nature’s call and at that time there was scuffle between the appellant and Kavdu (PW2) in which Kavdu gave a blow of stick on the head of the appellant. It was also suggested to her that in the said scuffle Anusaya fell down on the ground and sustained injury on her head. 10. During the course of cross-examination, it was also suggested to PW Anusaya that she asked the appellant to marry her, that the appellant refused to marry her and that Anusaya was, therefore, enraged. She lifted axe, gave blow of axe on the head of the appellant, the axe slipped and the helve of the axe hit the appellant and he fell down. The appellant was annoyed and he assaulted Anusaya by axe. 11. PW2 Kavdu deposed that the incident took place at the time of Pola festival in the morning at about 5 a.m. PW2 Kavdu came out of his house while brushing his teeth. He heard shouts of Anusaya. He immediately went to the place where Anusaya was living. He saw axe in the hands of the appellant. At that time Anandrao Shrirame, Kavdu’s sister Sulbha came there. Anusaya was lying in the pool of blood. He heard shouts of Anusaya. He immediately went to the place where Anusaya was living. He saw axe in the hands of the appellant. At that time Anandrao Shrirame, Kavdu’s sister Sulbha came there. Anusaya was lying in the pool of blood. When PW Kavdu entered the room, Anusaya and the appellant only were there. During cross-examination Kavdu stated that his house and that of Gurudeo Shrirame is adjoining. PW Kavdu admitted that on the day of incident the appellant and Anusaya had come to the house of Gurudeo Shrirame as guests. The appellant and Anusaya had stayed in a room which was cattle shed where bullock was tied. 12. The evidence of PW Kavdu shows that he reached on the spot after hearing shouts of Anusaya and he saw axe in the hands of the appellant. He did not see the appellant giving blows of axe to Anusaya. In such circumstances, he is not able to state what had happened before he rushed there. 13. One thing is certain that there was no relationship as husband and wife between the appellant and Anusaya. They had gone to village Waigaon only on the day of incident. It may further be noted that neither Anusaya nor PW Kavdu explained as to how the appellant sustained injuries. It is true that the injuries sustained by the appellant are very minor whereas the injuries sustained by Anusaya are grievous inasmuch as there were four incised wounds and a fracture of elbow joint. However, the version of Anusaya that in the early morning the appellant abruptly asked her to accompany him to Nagpur immediately in search of work appears to be highly improbable. It is further improbable that when she told the appellant to wait till morning, he was enraged and he at once took out the axe and assaulted her. There must be some other cause which is not disclosed by Anusaya for the assault by the accused on her. This cause is supplied by the appellant in his defence. He frankly admitted that he used to have sex with Anusaya on payment and on the date of incident he had gone to her at village Waigaon. He paid her and had sex with her. In the morning she asked him that he should marry her by going to Nagpur at Arya Bhawan to which he refused. He frankly admitted that he used to have sex with Anusaya on payment and on the date of incident he had gone to her at village Waigaon. He paid her and had sex with her. In the morning she asked him that he should marry her by going to Nagpur at Arya Bhawan to which he refused. Thereupon Anusaya was enraged and she tried to assault him with axe. He averted the blow and in that attempt sustained minor injuries. Thereafter he snatched the axe from her and assaulted her. This defence appears to be most probable. The learned trial Judge has not considered this aspect and has arrived at a wrong conclusion that for no reason the appellant tried to commit murder of Anusaya by assaulting her with axe. The conclusion drawn by the trial Court that the appellant committed an offence punishable under Section 307 of IPC is not supported by evidence on record and cannot be sustained. The learned trial Judge has taken much pains to discuss as to how the offence punishable under Section 307 IPC is established. However, the learned trial Judge misdirected himself by not properly appreciating the evidence. 14. The question is what offence, if any, has been committed by the appellant. From the circumstances of the case, it is apparent that the appellant exceeded his right of private defence in as much as he inflicted grievous injuries on Anusaya as compared to negligible injuries to him. Thus it is a case of exceeding the right of private defence punishable under Section 335 of IPC. 15. The appellant is in custody since the date of offence i.e. 1.9.2006. Considering the circumstances of the case, I am of the opinion that imprisonment already undergone by the appellant would be an adequate punishment to him. In the result, I pass the following order:- The appeal is partly allowed. The conviction of the appellant for the offence punishable under Section 307 of IPC is set aside and instead he is convicted for the offence punishable under Section 335 of IPC. He is sentenced to imprisonment already undergone. He be released forthwith if not required in any other matter. Appeal partly allowed.