JUDGMENT Heard. 2. Appeal is admitted on 8th October 2012. 3. In Sessions Trial No. 43 of 2011, the appellant is convicted for offence punishable under Section 307 of IPC, directed to undergo rigorous imprisonment for seven years, and to fine of Rs. 8,000/-, in default, to undergo simple imprisonment for three months. Out of the amount of fine imposed, amount of Rs. 5,000/- was directed to be paid to the informant Alishanbee (PW 1) towards compensation, by the learned Additional Sessions Judge, Jalgaon, by order dated 29-82012. The appellant is in custody as his bail application was rejected in Sessions Case. However, no such bail application moved before this Court. 4. On 9-11-2010, at around 77.30 a.m., when PW 1 Alishanbee was brooming the courtyard, the neighbours, Arman Tadavi, his wife Samina Tadavi, his sister Madina Tadavi, his mother Nanda Tadavi, his sister Halma Tadavi, and the appellant - accused Dagadu arrived at the house / courtyard of the informant. They had altercation on trivial issue. They thrashed the informant. The appellant Dagadu had axe, he inflicted and gave blow of axe which hit at the left side chick of the informant, suffering bleeding injury at her mandible bone which was cut in its character. Other accused were allegedly instigating the appellant to ensure elimination of the informant. 5. Crime No. 172/2010 was registered at Raver Police Station, for offences under Sections 143, 147, 148, 307, 504, 506, read with Section 149 of Indian Penal Code, on 9-11-2010. PW 3 Raju Tadavi was at the spot. However, he did not support the prosecution. Daughter of PW 1 Alishanbee, namely, Rizwana witnessed the events; she was 10 years old; she indeed has supported narration of PW 1. the victim Alishanbee. Since the nature of injuries of Alishanbee was grievous, her statement was recorded by PW 2 Dilip Gangave, Naib Tahsildar, which is at Exhibit 44, while the FIR of PW 1 is at Exhibit 40. PW 7 Dr. Kailash Khairnar had examined the victim and has deposed that mandible of the informant was adversely affected; size of injury was 7 cm X 4 cm X 3 cm and nature of injuries was grievous. Medical certificate to that effect is tendered at Exhibit 67. PW 8 Dr. Pankaj Saindani has examined the informant when the injuries were sutured. Kailash Khairnar had examined the victim and has deposed that mandible of the informant was adversely affected; size of injury was 7 cm X 4 cm X 3 cm and nature of injuries was grievous. Medical certificate to that effect is tendered at Exhibit 67. PW 8 Dr. Pankaj Saindani has examined the informant when the injuries were sutured. He also referred to the injuries, however, did not carry X-rays in respect of the injuries. The transfer medical certificate signed by him is at Exhibit 72. Considering her condition, she was referred to Aurangabad. She was subsequently discharged. 6. In order to prove guilt against the accused, the prosecution examined as many as 13 witnesses, which are mentioned below: PWI Alishanbee Usman Tadavi Complainant - injured. PW2 Dilip Gulabrao Gangave Naib Tahsildar - Recorded statement of complainant. PW3 Raju GuIzar Tadavi Panch to spot panchanama - Turned hostile PW4 Sherkhan Bahadur Tadavi Agricultural Labour PW5 Rizwana Usman Tadavi Daughter of the complainant - Eye witness PW6 Abdul RafikAbdul Rehman Panch to seizure of clothes of accused-Turned hostile. PW7 Dr. Kailash Kashinath Khairnar Medical Officer - examined the injured and gave treatment. PW8 Dr. Pankaj Uttamrao Saindani Medical Officer - examined the injured - referred the injured to Aurangabad. PW9 Shrikrishna Laxman Patil Panch to seizure panchanama of Article A i.e. axe PW10 Niyamant Mansur Tadavi A villager - visited the place of incident upon information by husband of the injured-Turned hostile. PW11 Nijam Ramjan Tadavi Neighhour - Turned hostile PW12 Shrikrishna Haribhau [namdar Judicial Magistrate (Fc.), Raver-recorded statements of three witnesses. PW 13 Uttam AnandaJadhav, PSI Investigating Officer 7. PW 1 Alishanbee has stated, she sustained bleeding injury clue to axe blow by appellant and fell clown. Thereafter, accused ran away. She has stated that her daughter Rizwana witnessed the incident her husband was not at house; when he was called, he took the injured Alishanbee to Rural Hospital, Raver, in rickshaw. On the same day, her statement was recorded by the Judicial Magistrate. Saree and Shawl worn by her at the time of incident were seized by Police. She has identified the weapon Article A axe before the court. She has also identified the accused before the court. 8. PW 2 Dilip Gangave, Naib Tahsildar has stated in his evidence that on oral directions of Tahsildar, he recorded statement of Alishanbee. Exhibit 44. Saree and Shawl worn by her at the time of incident were seized by Police. She has identified the weapon Article A axe before the court. She has also identified the accused before the court. 8. PW 2 Dilip Gangave, Naib Tahsildar has stated in his evidence that on oral directions of Tahsildar, he recorded statement of Alishanbee. Exhibit 44. He also obtained endorsement of Doctor before recording the statement and after recording the statement. The statement was read over to Alishanbee and a thumb impression was given on the statement by her. 9. PW 5 Rizwana, minor daughter of the complainant, has stated in her evidence that on the day of the incident, at about 7.30 a.m., she was washing utensils in front of her house. Her mother was sweeping Ota in front of her house. At that time, all the accused came in front of her house. She has stated that accused no.5 Nandabai gave fist blow to her mother; accused no.6 Halma gave slaps to her mother; accused no.3 Madina gave kick blow to her mother; accused no.2 Saminabai snatched hair of her mother; accused no. 1 Arman instigated the other accused. She has further stated that accused Nandabai and Arman caught hold hands of her mother and the appellant - accused Dagadu assaulted by axe on her mother's left cheek. Thereupon, her mother fell down and sustained bleeding injury due to assault. She has identified the accused as the same who assaulted her mother. She identified the weapon Article A axe and clothes on the person of complainant - injured. 10. PW7 Dr. Kailash Khairnar has stated, size of the injury was 7 cm X 4 cm X 3 cm. The injuries were grievous in nature, such injuries are possible with Article A - axe. According to him, due to such injuries, patient may go in shock and may die. He gave her first aid and referred her to Civil Hospital, Jalgaon, for further treatment. He has stated that Police recorded statement Exhibit 40 of injured Alishanbee in his presence, upon which he made his endorsement. He has stated that the Executive Magistrate also recorded statement Exhibit 44 in his presence, upon which also he made endorsement. 11. PW 9 Shrikrishna Patil, Panch witness, has proved seizure of axe. 12. He has stated that Police recorded statement Exhibit 40 of injured Alishanbee in his presence, upon which he made his endorsement. He has stated that the Executive Magistrate also recorded statement Exhibit 44 in his presence, upon which also he made endorsement. 11. PW 9 Shrikrishna Patil, Panch witness, has proved seizure of axe. 12. PW 12 Shrikrishna Inamdar Judicial Magistrate (F.C.), has recorded statements of three witnesses under Section 164 of Cr.P.C., namely, Rizwana Tadavi, Dagadu Tadavi and Nijam Tadavi. 13. PW 13 Uttam Jadhav. PSI Investigating Officer has stated in his evidence that he visited the spot of incidence, prepared spot panchanama of the spot which is at Exhibit 87. He recorded statement of witnesses, arrested the three accused. He seized clothes of accused Arman and prepare seizure panchanama Exhibit 88. Thereafter, he seized clothes of accused Madinabai and prepared seizure panchanama Exhibit 89. On 10-11-2010, he arrested the appellant - accused, seized clothes on the person of appellant – accused under Seizure Panchanama Exhibit 90. On 11-11-2010, accused - appellant made a statement that he had concealed the axe at the house of his father-in-law Usman. In pursuance of the memorandum statement Exhibit 67, accused appellant led the Police and Panchas at the spot and pointed out the axe used in the crime. Accordingly, the axe was seized under seizure panchanama Exhibit 77. He obtained blood samples of all the accused from Rural Hospital, Raver. He also collected blood sample of complainant Alishanbee. Clothes on the person of the complainant Alishanbee i.e. shawl and one saree were collected by Head Constable Pathan. which came to be handed over to him. He accordingly prepared clothes seizure panchanama Exhibit 91. He has further stated that on 19-11-2010, he made application before Judicial Magistrate (F.C.), Raver for recording statement of three witnesses viz. Rizwana, Dagadu and Nijam. On 21-11-2010, he sent all the seized articles in the crime along with requisition letter (Exhibit 92) with Head Constable Namdeo Sonawane to Chemical Analyser’s office at Nasik. Chemical Analyser's reports are at Exhibits 54 to 57. After completion of investigation, he filed charge sheet against the accused. 14. Mr. Joydeep Chatterji, learned Counsel for the appellant, submits, considering nature of injury indicated by PW 1 Alishanbee, supported by PW 7 Dr. Chemical Analyser's reports are at Exhibits 54 to 57. After completion of investigation, he filed charge sheet against the accused. 14. Mr. Joydeep Chatterji, learned Counsel for the appellant, submits, considering nature of injury indicated by PW 1 Alishanbee, supported by PW 7 Dr. Kailash Khairnar, it was a cut injury to mandible bone, which was incised wound on the left side of face over mandible bone, it will not be an injury of a grievous character to culminate into death of a person, if brutally assaulted. According to the learned Counsel, though PW 7 Dr. Kailash Khairnar stated character of injuries to be grievous, however, PW 8 Dr. Pankaj Saindani is silent on this point. Even PW 8 Dr. Pankaj Saindani is not in a position to say that the injury was sufficient in ordinary course to cause death. According to PW 7 Dr. Kailash Khairnar, the patient due to such injuries may go in shock and may die. 15. On analysis of evidence of above referred witnesses, I find, statement of PW 1 Alishanbee is fully corroborated by the evidence of PW 7 Dr. Kailash Khairnar and PW 8 Dr. Pankaj Saindani, Medical Officers, and also above referred eye witnesses. Since the tenor of cross examination was simple denial, it has lost its significance to be further looked into. 16. Chemical Analyser's report illustrate that there were blood stains on the apparels of the accused, including the axe which was taken charge under panchanama Exhibit . 77. The shawl, saree of the informant had also blood stains. The blood stains were human in origin, however, its group could not be analyzed. There is no explanation of presence of human blood on the apparels of the accused - appellant at any stage. 17. The opinion of PW 7 Dr. Kailash Khairnar, Medical Officer, referred to above, illustrate that it was a grievous injury caused to the informant. 18. In Modi's Medical Jurisprudence, 21st Edition, the relevant portion can be seen at page 314 onwards. While dealing with injuries at the face, the author has observed, "Wounds of the face heal as a rule, rapidly owing to its great vascularity, but they are grievous if they are severe and cause permanent disfiguration or deformity". 19. In the instant case, unfortunately, there is no evidence, whether there was permanent disfiguration or deformity to the informant. While dealing with injuries at the face, the author has observed, "Wounds of the face heal as a rule, rapidly owing to its great vascularity, but they are grievous if they are severe and cause permanent disfiguration or deformity". 19. In the instant case, unfortunately, there is no evidence, whether there was permanent disfiguration or deformity to the informant. Though she was referred at Medical College & Hospital at Aurangabad. The use of axe by the accused is established and cut injury to mandible (inferior jaw) is also established by PW 7 Dr. Kailash Khairnar. It is said, the cut or fracture of mandible is often associated with loss of one or two teeth and becomes compound from laceration of the mucous membrane covering the gums. It is established position, a fracture of bone caused by direct violence can be judged from its position and the presence of a bruise or wound of the skin or subjacent tissues accompanying the fracture. 20. Though injury in the instant case is at left side cheek, however, considering its proximity to the neck region, particularly jugular vein or proximity to the temporal and parietal region, the impact could have been fatal to the informant. She has been fortunately saved. 21. The appellant has been convicted, as stated earlier, for offence under Section 307 of IPC. The pre-requisite for the same is the intention to kill or knowledge of death in terms of Section 307 of IPC. As stated above, the accused was armed with an axe, a deadly weapon, with sharp age; he knew consequences of its user, if inflicted and the object. The intention of the accused was apparently a guilt surfacing in his mind. 22. Though Mr. Chatterji, learned Counsel for the appellant, has repeatedly canvassed that there was a cut to the mandible bone and the nature of injuries does not indicate it to be a grievous in character, however, intention of the accused is paramount aspect in the matter and the consequences thereof could have been fatal in the light of very nature of injury and nearby area of human body. Considering these facts, I am not inclined to accept that there is no case against the accused - appellant. Consequently, conviction under Section 307 of IPC recorded against the appellant - accused is maintained. 23. Considering these facts, I am not inclined to accept that there is no case against the accused - appellant. Consequently, conviction under Section 307 of IPC recorded against the appellant - accused is maintained. 23. During the course of submissions, learned Counsel for the appellants has pointed that the appellant has no criminal record; he is a farmer and is neighbour of the informant. He submits, at the most, the case would fall within bracket of Section 326 of IPC and it would not attract an offence under Section 307 of IPC. However, as stated above, I do not agree to the same. But considering age of the appellant, the nature of injury, recovery of the informant, following order would meet ends of justice. 24. The accused - appellant is convicted for offence punishable under Section 307 of Indian Penal Code, to undergo rigorous imprisonment for 5 [Five] years. Instead of fine of Rs. 8,000/-, the appellant to pay fine of Rs. 20,000/- [Rupees twenty thousand I. in default. to undergo simple imprisonment for one month. If fine is deposited, an amount of Rs. 15,000/- Rupees fifteen thousand] be paid over to the informant, injured. Set off under Section 428 of the Code of Criminal Procedure be extended to the accused - appellant. 25. Appeal partly allowed to the extent above. Appeal partly allowed.