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2012 DIGILAW 489 (BOM)

Vishnu S/o Deorao Walve v. State of Maharashtra

2012-03-02

ABHAY M.THIPSAY

body2012
Judgment 1. This appeal is directed against the judgment and order delivered by the II Additional Sessions Judge, Ambajogai, in Sessions Case No. 27 of 1999, convicting the appellant, who was the sole accused in the said case, of an offence punishable under Section 326 of the Indian Penal Code and sentencing him to suffer Rigorous Imprisonment for five years and also to pay a fine of Rs. 1,000/-, in default, to suffer rigorous imprisonment for three months. The allegation against the appellant in the said case was that he had and Section 324 of the Indian Penal Code; but, upon considering the evidence adduced before him during the trial, the learned II Additional Sessions Judge, Ambajogai, held that the offence committed by the appellant was one punishable under Section 326 of the Indian Penal Code and not punishable under Section 307 of the Indian Penal Code. He also held that the charge, in respect of an offence punishable under Section 324 of the Indian Penal Code, was not proved, and acquitted the appellant of the said charge. Being aggrieved by the order of conviction and sentence imposed by the learned II Additional Sessions Judge, the appellant has approached this Court by filing the present appeal. 2. The prosecution case, as was put-forth before the trial Court, may, in brief, be stated as under :- One Shantabai (P.W. 1) had been deserted by her husband, who had contracted another marriage. Shantabai had a son Vijay (P.W. 2) from her marriage. Due to desertion by her husband, Shantabai started living in her parental house situated at Conductor's colony at Parali. She developed intimacy with one Vijaykumar Joshi (P.W. 4) and started residing as his wife. Vijaykumar Joshi, later, got affected by tuberculosis and perhaps, therefore, was not able to maintain Shantabai properly. Shantabai started working in Ashvini hotel for earning livelihood. The appellant Vishnu was working as a Waiter in the said hotel at the material time. He sometimes used to leave Shantabai at her residence in the night time. The appellant started expecting Shantabai to keep sexual relations with him and started insisting on the same. However, as Shantabai refused to keep any such relations, quarrels frequently used to take place between them. Shantabai then shifted her residence at Snehanagar locality. She occupied the premises of one Shaikh Gafoor on tenancy basis, where she started living with her son. The appellant started expecting Shantabai to keep sexual relations with him and started insisting on the same. However, as Shantabai refused to keep any such relations, quarrels frequently used to take place between them. Shantabai then shifted her residence at Snehanagar locality. She occupied the premises of one Shaikh Gafoor on tenancy basis, where she started living with her son. That, on 11.08.1998, at about 8 p.m. to 8.30 p.m., Vijaykumar Joshi came to Shantabai's house. While he was there, the appellant also came there. There was some exchange of words between Vijaykumar and the appellant, and Vijaykumar had asked the appellant, as to why he had come there. That, at that time, the appellant took out a knife and inflicted two blows upon Vijaykumar, on his chest. The appellant was about to inflict another blow, but as Shantabai and her son Vijay intervened, he could not do so. The appellant then ran away. Vijaykumarhad sustained bleeding injuries and had fallen down. Shantabai went to Police Station and reported the matter. P.S.I. Budhwant (PW-9), who was on duty there, immediately arrived on the scene and removed Vijaykumar to Rural hospital, Parali. The statement of Vijaykumar was recorded, which was treated as the First Information Report (Exhibit 24) and a case in respect of the above-mentioned offences was registered. Investigation was carried out. Spot panchanama (Exhibit-22) was drawn. Blood stained clothes of Vijaykumar Joshi were taken charge of. On the next date at about 7.00 p.m., the appellant was apprehended. The weapon of assault -a knife -was recovered from his possession. A blood stained shirt was also recovered from the person of the appellant. On completion of investigation, report under Section 173(2) (i) of the Code of Criminal Procedure, was forwarded to the Judicial Magistrate, First Class, Parali, pursuant to which the appellant was prosecuted and convicted, as aforesaid. 3. In order to establish the case against the appellant (hereinafter referred to as `the accused'), the prosecution examined nine witnesses during the trial. Some of them have already been referred to, while narrating the prosecution case. The remaining witnesses are as follows :- Shaikh Yunus (P.W.3) is a panch in respect of spot panchanama (Exhibit-22). His evidence shows that the spot panchanama was drawn on 12.08.1998 at about 7.00 to 8.00 p.m.. Nothing was seized during the said panchanama. The evidence of this witness is, therefore, not significant. The remaining witnesses are as follows :- Shaikh Yunus (P.W.3) is a panch in respect of spot panchanama (Exhibit-22). His evidence shows that the spot panchanama was drawn on 12.08.1998 at about 7.00 to 8.00 p.m.. Nothing was seized during the said panchanama. The evidence of this witness is, therefore, not significant. The fifth witness Raghunath Maske is also a panch, who is supposed to have acted as such, in connection with the arrest of the accused. He, however, did not support the case of the prosecution and was declared hostile. Though the learned A.P.P. was permitted to put questions in the nature of cross examination to this witness, nothing useful to the prosecution could be elicited pursuant to such questioning. Thus, the prosecution case that the weapon of assault viz.:-the knife (Article 1) was recovered from the possession of the accused on his arrest, is not supported by this witness. The sixth witness-Rajendra Oza, is the another panch, who is supposed to have acted as such, in connection with the arrest of the accused. Even this witness has not supported the case of the prosecution and inspite of declaring him hostile and putting questions in the nature of cross examination to him, the learned A.P.P. was unable to get anything that would advance the prosecution case against the accused, from this witness. The seventh witness Dr. Paras Mandlecha was attached to Rural hospital, Parali at the material time. He is the one, who had examined the injured Vijaykumar Joshi at the said hospital at about 9.25 p.m. on 11.08.1998. He has described the injuries sustained by Vijaykumar Joshi in his evidence. He has given his opinion that the injuries could be caused by sharp edged, hard and blunt object. According to him, the injuries were serious in nature and could be possible by use of knife. The certificate in respect of the injuries, issued by him, was tendered in evidence and marked at Exhibit-30. The eighth witness Smt. Shaikh Bibikhuteja is the wife of Shaikh Gafoor, the landlord of Shantabai at the material time. He was also residing just by the side of the room rented to Shantabai alongwith his wife Bibikhuteja. This witness is supposed to have witnessed the incident of assault partially. The eighth witness Smt. Shaikh Bibikhuteja is the wife of Shaikh Gafoor, the landlord of Shantabai at the material time. He was also residing just by the side of the room rented to Shantabai alongwith his wife Bibikhuteja. This witness is supposed to have witnessed the incident of assault partially. The ninth witness, as already seen, is Adinath Budhwant, P.S.I. attached to Parali City Police Station at the material time, who is the Investigating Officer in the matter. 4. I have heard Mr. N.B. Jadhav, the learned advocate for the accused. I have heard Mr. T.S. Lodhe, the learned A.P.P. for the State. I have the trial and the impugned judgment. 5. It is contended by the learned advocate for the accused that the impugned judgment is not proper or legal. He submitted that the evidence adduced by the prosecution was not satisfactory and that, the prosecution had examined only interested witnesses on whom reliance ought not to have been placed. He submitted that the evidence indicated that at the time of incident, it was dark and that, therefore, there was possibility of the witnesses having noticed the assailant. He also submitted that there were several discrepancies in the evidence of the witnesses to the incident and therefore, there existed a doubt about the truth of the version of the prosecution. He submitted that, therefore, the accused should have been given the benefit of doubt and should have been acquitted. 6. Mr. Lodhe, the learned Additional Public Prosecutor for the respondent / State, on the other hand, submitted that the evidence adduced by the prosecution was quite convincing, consistent and reliable. He submitted that the appreciation of evidence, as done by the trial Court, is proper and legal. He therefore, submitted cria207.01 7. In her evidence, Shantabai stated that she had married one Uttam Bakre about 10 years before the incident, but that, the said Uttam Bakre had contracted another marriage and deserted her. That, Vijay was born to her from said Uttam Bakre. That, then she was acquainted with Vijaykumar Joshi while she was residing at conductors colony, Parali; and that, she then started residing with him as his wife. That, Vijaykumar started suffering from illness since about a year prior to the incident. As regards the actual incident, Shantabai narrates that, that it took place in the rented accommodation belonging to Shaikh Gafoor. That, Vijaykumar started suffering from illness since about a year prior to the incident. As regards the actual incident, Shantabai narrates that, that it took place in the rented accommodation belonging to Shaikh Gafoor. That, at that time Vijaykumar was living separately, and that, he had not come to Shantabai for a period of about six to seven months due to his illness. Shantabai, therefore, had to work in a hotel -Hotel Ashwini -having a permit room. That, the accused was working there as a Waiter and he sometimes used to accompany Shantabai to leave her at her residence. That, the accused then started expecting Shantabai to keep sexual relations with him and started insisting on the same, but as Shantabai did not accept this, quarrels started taking place between them frequently. That, due to the harassment of the accused, Shantabai changed the accommodation and went to reside in the house of Gafoor at Snehnagar locality, where the incident in question took place. Shantabai states that on that day at about 7 p.m., she, Vijay (P.W.2), landlord Shaikh Gafoor and his wife Shaikh Bibikhuteja (PW-8) were sitting at the door of the rented premises and that, at about 8.30 p.m., Vijaykumar Joshi (PW-4) came there. That, thereafter, Shantabai and her son Vijay alongwith said Vijaykumar, went inside their own rented room. That, immediately thereafter, the accused arrived there. Vikaykumar asked the accused as to why he had come there and the accused also asked Vijaykumar as to why Vijaykumar had come there. That, the accused took out a knife and inflicted two blows by that knife on the chest of Vijaykumar. Vijaykumar then shouted as `Melo Melo" (“HINDI”) That, when Shantabai had tried to intervene, the accused assaulted her also by the knife, causing injury on her arm. Shantabai's son Vijay (PW-2) also received an injury on the middle finger of his left hand. That, after the assault, the accused ran away from that place. 8. Shantabai has then stated about going to the police station and informing police about the incident. According to her, police came there and took injured Vijaykumar to Parali Rural hospital for medical treatment. That, after giving primary medical aid to him, Vijaykumar was referred to S.R.T.R. Medical college and hospital at Ambejogai. Even Shantabai was treated medically in Rural hospital, Parali. According to her, police came there and took injured Vijaykumar to Parali Rural hospital for medical treatment. That, after giving primary medical aid to him, Vijaykumar was referred to S.R.T.R. Medical college and hospital at Ambejogai. Even Shantabai was treated medically in Rural hospital, Parali. Shantabai identified the accused as the same person, who had assaulted Vijaykumar and had caused injury to her. She also stated that Vijaykumar had been treated as an indoor patient for about eight to nine days. 9. Shantabai was extensively cross examined, but her version remained unshattered. In the cross examination, suggestions were given to her that Vijaykumar Joshi was having his wife and that, he was staying with her wife, which suggestions were accepted as true, by her. Certain other suggestions to the effect that her family members desire that she should reside with Uttam were given to her but, she had denied such suggestions as not true. It was suggested to her, that she was driven out of her house at conductor's colony by the family members of Vijaykumar Joshi, but she denied the said suggestion. It was also suggested, that her husband Uttam Bakre did not like her illicit connection with Vijaykumar Joshi and that the cause of quarrel between her and her husband was the illicit relations, etc. All these suggestions -which have been denied -were with respect to aspects, which do not seem to be important or significant at all. 10. Shantabai's evidence was sought to be attacked on the ground that though she claimed that the accused had made certain sexual advances towards her, she had not complained about the same to the police. Shantabai however, stated that she had informed the proprietor of Ashwini hotel about such behaviour of the accused. I am unable to hold that failure of Shantabai to lodge a report against the accused with respect to the advances made by him falsifies her version that the accused was expecting that Shantabai should keep sexual relations with him. It was extremely embarrassing to give much publicity to any such incident and apparently, she hoped to tackle the matter by reporting it to the Proprietor of Ashwini hotel. 11. The evidence of Shantabai's son Vijay (PW-2) is also consistent with the evidence of Shantabai. Vijay has also stated about Vijaykumar's visit to their residence and about the fact that thereafter the accused also arrived there. 11. The evidence of Shantabai's son Vijay (PW-2) is also consistent with the evidence of Shantabai. Vijay has also stated about Vijaykumar's visit to their residence and about the fact that thereafter the accused also arrived there. He has stated that when Vijaykumar asked the accused about the cause of his arrival, the accused took out a knife and gave two blows to Vijaykumar on his chest. He also speaks about Shantabai and he himself receiving injuries when they tried to intervene and prevent the accused from inflicting further blows to Vijaykumar. Though this witness was cross examined, his testimony has not been shattered at all. 12. In his evidence, the injured Vijaykumar stated that he had gone to the house of Shantabai on 11.08.1998 at about 8.30 p.m. and that, at that time, one boy, by name Vishnu, came there. He also stated that Vishnu stabbed him over his chest by giving two blows of knife. He also speaks of Shantabai and her son Vijay having attempted to ward off further blow, which the accused attempted to give to him. He also stated that he sustained bleeding injuries and that, his shirt as well as sweater were stained with blood. That, Vishnu then ran away and Shantabai went to the police, etc. He also stated that the police Jeep arrived there and then he was removed to hospital. That, he was medically treated and then referred to Ambejogai Medical Government hospital. 13. In cross examination, an admission to the effect that it was totally dark at the time of incident, was elicited from him. He also admitted in cross examination, that he did not know the name of the assailant, who stabbed him. It seems that this witness was rather reluctant to implicate the accused as the assailant. However, he did state about the incident of assault, the time and the date of the incident. He also maintained that a boy by name Vishnu had come to house and that, the said Vishnu was the assailant. 14. Smt. Bibikhujteja (PW-8) has also spoken about the incident. According to her, her husband, she herself, Shantabai and Shantabai's son Vijay were sitting infront of the house and after arrival of Vijaykumar, Shantabai and Vijay went inside the rented room occupied by Shantabai and that, this witness and her husband went to room occupied by them. 14. Smt. Bibikhujteja (PW-8) has also spoken about the incident. According to her, her husband, she herself, Shantabai and Shantabai's son Vijay were sitting infront of the house and after arrival of Vijaykumar, Shantabai and Vijay went inside the rented room occupied by Shantabai and that, this witness and her husband went to room occupied by them. That, thereafter she heard the voice of Vijaykumar Joshi and then, she heard his cries as `Melo-Melo' (“HINDI”). That, when she and her husband therefore, came out of house, Shantabai and Vijay had also come out of the house and that, at that time, Shantabai disclosed that `Vishnu' had come and assaulted Vijaykumar by a knife. She then states that on going inside the room occupied by Shantabai, she noticed that Vijaykumar was lying there, having bleeding injuries over his chest. According to her, she then asked Shantabai as to why Vishnu had assaulted Vijaykumar, on which she explained that Vishnu -the accused -wanted to keep sexual relations with the assailant and that was the cause behind the assault. In cross examination, this witness admitted that at the time of incident, the electricity supply was off and that, it was dark. The suggestion that no such incident had taken place, or that Shantabai did not disclose anything to her, was, however, denied by this witness. 15. When the evidence of Shantabai and Vijay is considered in the light of the evidence of Vijaykumar himself and Bibikhuteja, it leaves no manner of doubt that the incident, as alleged by them, indeed, took place. As a matter of fact, that Vijaykumar was assaulted at the said place and at the same time, is not at all in dispute. The dispute sought to be raised is about the identity of the accused as the offender. Now, Shantabai and her son Vijay, both knew the accused and have clearly given his name as the assailant. Vijaykumar has also said that the boy, by name Vishnu, had come and that, Vishnu was the assailant. Inspite of the categorical statement made by Shantabai and Vijay, it is urged that their evidence implicating the accused ought not to have been believed, by referring to the evidence of Vijaykumar and Bibikhuteja. I am not impressed by the arguments advanced in that regard. Inspite of the categorical statement made by Shantabai and Vijay, it is urged that their evidence implicating the accused ought not to have been believed, by referring to the evidence of Vijaykumar and Bibikhuteja. I am not impressed by the arguments advanced in that regard. Though it does appear that, the electricity was off at that time and though, obviously, there was no proper or sufficient light, it is impossible to hold that it was totally dark and as such, the witnesses could not have seen, who the offender was. The incident had taken place in the house and it is impossible to hold that the inmates of the house would be in the room, totally without any sort of light. Moreover, the witnesses Shantabai and Vijay have not been questioned in the cross examination, as to how, despite there being darkness, they could identify the assailant. From the evidence, it is clear that not only the accused had arrived in the house, he had also some discussion with Vijaykumar and Shantabai's son Vijay. Under these circumstances, the question of Shantabai or Vijay not having noticed who was the offender, cannot be accepted. 16. Shantabai immediately reported the matter to the police and the police arrived on the scene. The name of the accused as the assailant was disclosed to the police immediately. There would be hardly any opportunity, much less any reason, for Shantabai or Vijay, or to the injured Vijaykumar, to implicate the accused falsely. It is true, that from the evidence of Vijaykumar, he seems to be reluctant to implicate the accused, and has put forth the story only half heartedly, by mentioning about the incident, and by mentioning that, the boy by name `Vishnu' had come to the house, but avoiding to categorically state, that the said Vishnu was the accused before the Court. There could be various reasons for Vijaykumar's reluctance to categorically state so, but certainly, because of that, the testimony of Shantabai and Vijaykumar can not be disbelieved. 17. Even otherwise, the other evidence strongly supports the story of Shantabai and Vijay. There is no doubt that the first information report came to be lodged on the same day within an hour or so. There is no doubt that Vijaykumar was removed to the hospital by the police immediately. 17. Even otherwise, the other evidence strongly supports the story of Shantabai and Vijay. There is no doubt that the first information report came to be lodged on the same day within an hour or so. There is no doubt that Vijaykumar was removed to the hospital by the police immediately. There is no denial of the fact that the accused was working with Shantabai in the hotel and that, he used to drop Shantabai at her house during late hours. 18. There is also other evidence against the accused. That is in the form of recovery of blood stained clothes and more importantly, recovery of a knife having stains of blood on its blade. True, the panch witnesses have not supported the theory of recovery of knife from the possession of the accused, but considering the evidence of Investigating Officer-Adinath Budhwant-(PW-9), I see no reason to doubt this aspect of the prosecution case. The evidence of Investigating Officer shows that all the necessary steps in the investigation were promptly taken by him and the investigation does not seem to be suffering from any taint and vice. Moreover, the theory of recovery of knife from the person of the accused is quite consistent with the rest of the circumstances that had been sufficiently proved. 19. Mr. N.B. Jadhav, the learned advocate for the accused contended that the story put forth by Shantabai is unbelievable. According to him, looking to the character of Shantabai, who admitted extra marital relations, it would not be proper to place reliance on her testimony. I am unable to agree with the learned Advocate. It is obvious that Shantabai, who had been deserted by husband, needed some support and was therefore, residing with Vijaykumar Joshi as his wife. Because of that, it can not be assumed that she might have made false allegations of an assault against the accused. It is also submitted that the accused was hardly of 19 years at the time of incident and Shantabai's son was of about 15 years; and it was highly unlikely, the accused would express a desire to keep sexual relations with a woman, who was of much more age than his. There is no substance in this contention also. It is also submitted that the accused was hardly of 19 years at the time of incident and Shantabai's son was of about 15 years; and it was highly unlikely, the accused would express a desire to keep sexual relations with a woman, who was of much more age than his. There is no substance in this contention also. Since Shantabai had been deserted by her husband and since she was having extra marital relations with Vijaykumar, and since she was also forced to work in a Permit Room for her survival, it was quiet likely that the accused sensed the vulnerability of Shantabai and wanted to take advantage of the same. 20. After going through the impugned judgment, I find that the learned Judge has properly appreciated the evidence and has come to the correct conclusion. On an independent re-appraisal of the evidence by this Court, this Court also comes to the same conclusion. 21. The learned Additional Sessions Judge had, even after being satisfied that the accused was the assailant, considered whether, the offence committed by him, would be one punishable under Section 307 of the Indian Penal Code. The learned Judge observed that the evidence did not show the requisite mensrea, on the part of the accused to hold him guilty of an offence punishable under Section 307 of the Indian Penal Code. This conclusion of the learned Judge also appears to be correct. On considering the evidence in that regard, this Court also comes to the conclusion that, the offence committed by the accused would not be one punishable under Section 307 of the Indian Penal Code. 22. The only question, is whether the accused could be held guilty of the offence punishable under Section 326 of the Indian Penal Code or whether, the offence committed by him would be one punishable under Section 324 of the Indian Penal Code. The learned Judge concluded that the offence would be one punishable under Section 326 on the basis that the grievous hurt was caused to Vijaykumar. In that regard, he relied upon the evidence of Dr. Paras Mandlecha (PW-7), who opined that the injuries caused to Vijaykumar were sufficient to cause the death in case timely aid was not given. The learned Judge concluded that the offence would be one punishable under Section 326 on the basis that the grievous hurt was caused to Vijaykumar. In that regard, he relied upon the evidence of Dr. Paras Mandlecha (PW-7), who opined that the injuries caused to Vijaykumar were sufficient to cause the death in case timely aid was not given. The injuries sustained by Vijaykumar were as follows :- (1) Incised wound, present on left side of chest 1/2 inch lateral to mammary glands, spindle in shape, horizontal in direction, size 1 1/2" X 1/2". (2) Incised penetrating wound, present on left side of chest, at 8th inter-costal space. Horizontal in direction size 1 1/2" X 1/2". In cross examination, this witness was questioned as to whether, he could give the depth of the wound that had been caused and he submitted that he had not measured the depth of the wounds, and therefore, was unable to give the same. A question was put to him, that unless the depth of wound would be known, no opinion as to the seriousness of the injuries and whether they were dangerous to life, could be given. This witness denied this suggestion, but it is difficult to accept the correctness of his denial. It is obvious that, superficial wounds, which would be only skin-deep would not be ordinarily held to be amounting to `grievous hurt' as contemplated under Section 320 of the Indian Penal Code. There is no satisfactory evidence that the hurt was such, so as to endanger the life of Vijaykumar Joshi. This is particularly significant, because the prosecution did not examine the doctor, who had treated Vijaykumar in the S.R.T.R. Medical Hospital at Ambajogai. Dr. Paras (PW-7) had only given primary treatment to Vijaykumar and thereafter Vijaykumar was shifted to S.R.T.R. Hospital, where he was admitted for eight to nine days and fully treated. The doctor who treated him would have been able to give the depth of the wounds, which had been sustained by Vijaykumar. In the absence of his evidence, it would be difficult to hold that the injuries caused to Vijaykumar amounted to `grievous hurt'. There is no other material on the basis of which such an inference can be drawn. The doctor who treated him would have been able to give the depth of the wounds, which had been sustained by Vijaykumar. In the absence of his evidence, it would be difficult to hold that the injuries caused to Vijaykumar amounted to `grievous hurt'. There is no other material on the basis of which such an inference can be drawn. As a matter of fact, it appears that the said Vijaykumar was weak and suffering from tuberculosis and the very fact that he could quickly recover and get discharged from hospital indicates that, in all probability, the injuries caused to him, were not such as would qualify to be called as `grievous hurt'. It is well settled that when there arises a doubt with respect to any particular aspect of the prosecution case, such doubt must be resolved in favour of the accused. The failure of the prosecution to bring satisfactory evidence about the nature of injuries ought to be weighed in favour of the accused and such benefit of doubt, which arises as to the nature of injuries, should be given to the accused. I am of the opinion that the offence committed by the accused would be one punishable under Section 324 of the Indian Penal Code and not punishable under Section 326 of the Indian Penal Code. 23. At this stage, I have heard Mr. N.B. Jadhav, the learned advocate for the accused and Mr. Lodhe, the learned A.P.P. on the question of sentence, in view of the findings of this Court that the offence would be one punishable under Section 324 of the Indian Penal Code. The learned advocate for the accused submits that the accused is now married and is the father of two minor children. He submits that he has to maintain his wife, two minor children and mother, who are residing with him. He tenders a copy of the B.P.L. card issued in favour of the accused, which shows that he is residing with his wife and children. 24. The incident had taken place more than 12 years back. The accused was on bail during the trial and even during the pendency of the appeal till he was arrested about a month back, pursuant to a non-bailable warrant issued by this Court. There is nothing to indicate that during these 13 years, he committed any other offence. 24. The incident had taken place more than 12 years back. The accused was on bail during the trial and even during the pendency of the appeal till he was arrested about a month back, pursuant to a non-bailable warrant issued by this Court. There is nothing to indicate that during these 13 years, he committed any other offence. He was only of 19 years at the time when the offence was committed. His position in life must have been altered considerably during this span of about 13 years. It would not be desirable to send him to prison for a long duration, as it would have a danger of weakening his ties and connection with his family members, which is certainly not desirable from any point of view. 25. Considering all the relevant aspects of the matter, in my opinion, it would be proper to take a lenient view of the matter, as regards the sentence. 26. In the circumstances, the appeal is partly allowed. 27. The conviction of the accused with respect to the offence punishable under Section 326 of the Indian Penal Code and the sentence imposed upon him by the trial Court is set aside. Instead, the accused is convicted of an offence punishable under Section 324 of the Indian Penal Code and is sentenced to suffer R.I. for one year and also to pay a fine of Rs. 5,000/-(Rs. Five Thousand only), in default, to suffer R.I. for six months. 28. The amount of fine imposed by the trial Court, if deposited earlier by the accused, be adjusted towards the fine that is now imposed upon the accused. 29. The appeal is disposed of, in the aforesaid terms.