JUDGMENT : V.M. DESHPANDE, J. 1. By the present appeal, the appellant is challenging the judgment and order of conviction passed by learned Additional Sessions Judge, Nagpur in Sessions Trial No. 383/2014 for which the Court below has convicted the appellant for the offence punishable under Section 326 of the Indian Penal Code and directed that he shall suffer rigorous imprisonment for 6 years and pay a fine of Rs. 5,000/- in default, to suffer simple imprisonment for 6 months. 2. A.P.I. Rajesh Puri (PW-6) lastly received case diary of Crime No. 131/2014 and filed chargesheet before the Court of law for an offence punishable under Section 302 of the IPC. The learned Magistrate committed the case to the Court of Sessions. 3. After committal, the learned Additional Sessions Judge framed the charge against the appellant that he committed murder of one Sukhram Jagan Ramteke on 24.05.2014 by means of an iron rod. Therefore, charge was framed for an offence punishable under Section 302 of the ICP. Appellant denied the charge and claimed for his trial. In order to bring home guilt of the appellant for the said charge, the prosecution has examined in all 16 witness and also relied upon various documents, which were proved in due course of time by the trial Court. After appreciation of the entire prosecution case, the Court below acquitted the appellant of the offence under Section 302 of the IPC however found that the appellant has committed an offence under Section 326 of the IPC and therefore passed the impugned judgment and order. 4. Though the appellant is acquitted of the offence punishable under Section 302 of the IPC, the State chose not to prefer any appeal against the said order of acquittal and therefore the finding recorded by the Court below acquitting the appellant of the offence punishable under Section 302 of the IPC has attained finality. 5. The prosecution case as it was unfurled during the course of trial is stated hereunder: (i) Shivshankar Khedekar (PW-13) on 24.05.2015 was attached to Police Station, Yashodhara Nagar, Nagpur as Night Duty Officer. At 9.00 p.m. he received information that one person is assaulted at Dhammadeep Nagar and is admitted in Mayo Hospital. On getting the said information, he sent Head Constable, Prakash to Mayo Hospital for inquiry. At 9.00 p.m. he received information that one person is assaulted at Dhammadeep Nagar and is admitted in Mayo Hospital. On getting the said information, he sent Head Constable, Prakash to Mayo Hospital for inquiry. The Head Constable went to Mayo Hospital and after returning, informed Shivshankar (PW-13) that he has recorded statement of the injured Sukhram. On the basis of the said statement, an offence was registered for an offence punishable under Sections 324 and 326 of the IPC vide Crime No. 131/2014 against the present appellant. (ii) The statement on the basis of which the offence was registered, is statement of Shanta Sukhram Ramteke. It is at Exh.45. In her statement, she has stated that her husband Sukhram, a Painter by profession came to the house at 6.30 in the evening. In the night hours at 8.30 p.m. he was sitting on a heap of sand in front of house of Sadhna Wahane. At that time, appellant a resident of neighbourhood, on account of previous quarrel gave blow of iron rod on his head, resulting into injuries to the head of her husband. It is also stated in the FIR that for treatment, the injured was taken to Mayo Hospital. (iii) The printed FIR is at Exh.46. It shows that offence is registered on the day of occurrence itself at 23.30 hrs. against the appellant. (iv) After registration of crime, Shivshankar (PW-3) visited the spot of incident and in presence of pancha, he prepared spot panchanama, Exh.50. He also seized the weapon from the spot of occurrence itself. Thereafter, he handed over the investigation to Kamlakar Gadime (PW-14). (v) After receipt of case diary, Kamlakar (PW-14) went to Mayo Hospital. He seized clothes of he injured from his wife Shanta, which were stained with blood, under seizure panchanama, Exh.71. He also arrested appellant at 00.05 hrs. of 26.05.2014. Arrest panchanama is at Exh.85. He also seized clothes of accused under seizure panchanama, Exh.72. He also referred accused for collecting his blood sample. (vi) On 03.06.2014, he went to Mayo Hospital and inquired about mental condition of the injured Sukhram as to whether he is in a position to give statement under requisition given by him to the Doctor which is at Exh.66. After obtaining opinion from the Doctor that the patient is in a position to give statement, he recorded the statement and it is at Exh.86. After obtaining opinion from the Doctor that the patient is in a position to give statement, he recorded the statement and it is at Exh.86. (vii) He also sent requisition to the Executive Magistrate for recording of statement of injured. Accordingly, Laxmi Vairagade (PW-3), Naib Tahsildar, recorded statement of injured at Exh.55. (viii) On 01.07.2014, information was received by this investigating officer about the death of Sukhram. Therefore, a Merg was registered vide Merg No. 43/2014 (Exh.90 and 91). The investigation thereafter was taken over by Rajesh Puri (PW-16). He sent the dead body for post mortem. He also added Section 302 of IPC and after completion of investigation, sent the said to the Court of law. 6. I have heard Mr. Bhangde, learned counsel for the appellant and Mr. Rao, learned A.P.P. for the State. According to the learned counsel for appellant, though the appellant was rightly acquitted of the offence under Section 302 of the IPC, the Court below has committed mistake in convicting the appellant for the offence punishable under Section 326 of the IPC. According to him, the prosecution initially tried to suppress the grievous injuries which were appearing on the person of the appellant, which are clearly brought on record. He submits that perusal of Exh.113, the injury certificate of the appellant shows that he was also recipient of various injuries grievous in nature and therefore the Court below ought not to have convicted him for the offence punishable under Section 326 of the IPC. It is also submitted by him that the Doctor, who gave fitness certificate to Laxmi (PW-3) who has recorded statement of the deceased, admitted in his cross-examination that he is unaware as to what was stated by the deceased during the recording of dying declaration by the Naib Tahsildar. He, therefore, submitted that the appeal be allowed. 7. Per contra, learned A.P.P. would submit that in the present case, there are four eye witnesses and two statements of Sukhram which came to be treated as dying declarations, which clearly attribute the finger of guilt towards the appellant as assailant. He submitted that there is a consistency in the evidence of prosecution witnesses and their evidence stand duly corroborated by medical evidence. Therefore, the conviction need not be upheld. He submitted that there is a consistency in the evidence of prosecution witnesses and their evidence stand duly corroborated by medical evidence. Therefore, the conviction need not be upheld. He placed reliance on the authoritative pronouncement of the Hon'ble Apex Court in Thathanna and Others vs. State of Andhra Pradesh, AIR 1994 SC 652 and prays for dismissal of the appeal. 8. After hearing learned counsel for the appellant and learned A.P.P. for State and after evaluating the entire prosecution case once again, on re-appreciation of the entire prosecution case, I find that the present appeal is required to be dismissed by maintaining the order of conviction and order of sentence. 9. The incident has occurred on 24.05.2014 in between 8.30 to 9.00 O'clock. Crime is registered on the basis of statement of Shanta Ramteke (PW-1). Her statement is at Exh.45. The printed FIR is at Exh.46 and it discloses that the offence was registered initially for an offence under Sections 326 and 324 of the IPC vide Crime No. 131/2014 at 23.30 hrs. In the oral report, there are specific accusations against the present appellant that he is the person who has given blows on the head of Sukhram by means of “Sabbal” a large iron bar. From this, it is clear that not only the report was given by the wife of the injured to Police Station promptly but her report specifically contains name of appellant and overt act done by him. Thus, false implication of appellant at the behest of the prosecution is completely ruled out. 10. Dr. Manik Gedam (PW-15), was Unit Head of Surgery Unit, IGMC Hospital, Nagpur. As per his evidence, Sukhram was admitted in Ward No. 2 for surgery as he was having head injury. The treatment given to Sukhram was written on bead-head ticket, which he produced before the Court in the nature of its certified copy, Exh.98. His evidence would shows that Sukhram was having lacerated injury, one of 5 X 3 cm. on left temporal partial region, lacerated wound 3 X 1 cm. on left side of forehead and left eye was blackened. The patient was unconscious while admitting in the hospital. CT scan of the patient was suggestive of subdural bleed with linear un-displaced fracture of pitrous part of left temporal bone with airflued level spheroid hemo sinus and the patient was treated for head injury. 11. on left side of forehead and left eye was blackened. The patient was unconscious while admitting in the hospital. CT scan of the patient was suggestive of subdural bleed with linear un-displaced fracture of pitrous part of left temporal bone with airflued level spheroid hemo sinus and the patient was treated for head injury. 11. From the prosecution case, it is clear that Sukhram was indoor patient from 24.05.2014 till 05.06.2014. As per evidence of Shanta, Sukhram was discharged on 05.06.2014. However, since his health was deteriorating, he was again required to be hospitalized on 09.06.2014 and he remained indoor patient in the hospital till his death till 30.06.2014. 12. The injury certificate is on record at Exh.63. The said is proved by Dr. Mulchand Gedam (PW-7). He noticed following injuries: (i) Lacerated wound of 3 cm X 2 cm X 1 cm over left parital region of skull. (ii) Lacerated would with evidence of black eye of 3 cm x 2 cm x 1 cm, over right eyebrow. The post mortem report is at Exh.57. The same is proved by Dr. Chaitanya Tingne (PW-4). As per the Autopsy Surgeon's opinion, clinical and post mortem finding are consistent with the death due to septicemia associated with head injury. Since there is no appeal filed on behalf of the State, this Court is not expected to record any finding regarding the cause of death. 13. The limited question that this Court is expected to answer in the present appeal is whether the appellant is the author of the injuries on the head of Sukhram by means of iron rod. 14. From the evidence of Shanta Ramteke (PW-1) from the recitals of the FIR, it is clear that she is not an eye witness. She received intimation about the assault on her husband by one Sadhna Wahane (PW-6). According to the prosecution, assault was witnessed by Shivaji Gajbhiye (PW-5), Arvind Gajbhiye (PW-9) and Shefali Gedam (PW-11) in addition to the eye witness account that was deposed before the Court by Smt. Sadhna Wahane (PW-6). Perusal of the examination in chief of the evidence of this eye witness corroborates with the judgment on the point that they heard voice of appellant-Suresh and his wife and thereafter Suresh came out of his house with a large iron rod in his hand. Perusal of the examination in chief of the evidence of this eye witness corroborates with the judgment on the point that they heard voice of appellant-Suresh and his wife and thereafter Suresh came out of his house with a large iron rod in his hand. They thought he might be going towards the lane, however, instead of going to lane, he turned back and gave blows on the head of Sukhram. The evidence of these eye witnesses is consistent on all material points and especially to the core of the prosecution case that the appellant gave assault on the head of the injured Sukhram. It has also come in their evidence that the appellant used to engage in selling of liquor illegally which was objected by the residents of the locality including the injured Sukhram and preciously in the prosecution case, that is the motive attributed for making assault by the appellant on Sukhram. 15. In addition to the eye witness account, in the present case, there is an evidence in the nature of previous statement of injured which was recorded by Laxmi (PW-3), a Naib Tahsildar. She received requisition from the police to record statement. It is at Exh.54. Accordingly, she went to the hospital. At that time, Yogesh Mankar (PW-8), was a Junior Resident in Department of Surgery. He gave opinion, after examining the patient that he is in a position to give his statement and thereafter the statement was recorded by Laxmi. The said statement is at Exh.55. Similarly, Exh.86 is the statement recorded by Kamlakar Gadime (PW-14). The recitals of both these previous statements are not at variance in respect of assault on Sukhram, the mode, the weapon, the reason and the name of assailant. 16. The investigating officer also sent the clothes of the appellant to chemical analyser. As per Exh.31, the blood group of deceased was determined as “O” and as per chemical analyser's report Exh.32, human blood of having blood group “O” was found on the clothes of the appellant. Thus, even the scientific evidence also corroborates the prosecution. 17. Insofar as submission of learned counsel for the appellant about injury to the appellant is concerned, in my view, though Exh.113 shows that the appellant received injuries, the defence completely failed to prove it on record that there was a scuffle in between the appellant and Sukhram. Thus, even the scientific evidence also corroborates the prosecution. 17. Insofar as submission of learned counsel for the appellant about injury to the appellant is concerned, in my view, though Exh.113 shows that the appellant received injuries, the defence completely failed to prove it on record that there was a scuffle in between the appellant and Sukhram. If that be so, the injuries appearing on his person are not the result of any scuffle. On the contrary, prosecution witnesses are saying that before the appellant stepped outside his house, they heard altercation between him and his wife. At page no. 81 of the paper book, when Arvind (PW-9) was cross-examined, it was suggested by the defence counsel that after the incident involving appellant, Arvind, Rahul, Suraj, Akash and Ravindra at Niranjan Kirana but it was denied by the witness. Thus, it is clear that the appellant might have received the injuries in different incident, totally unconnected with the incident in which Sukhram was assaulted in front of house of Sadhna (PW-6) situated near Vishwashanti Buddha Vihar, Dhammadeep Nagar. Whereas, even according to the suggestion given to Arvind (PW-9), the appellant was assaulted near Niranjan Kirana an altogether different place. Therefore, submission of learned counsel for the appellant that the appellant cannot be convicted since he also received injuries, is not having any force and is of no assistance to the appellant. 18. In view of the aforesaid, I have no hesitation in my mind to record a stamp of approval to the impugned judgment and order dated 01.02.2018 passed by Additional Sessions Judge-5, Nagpur in Sessions Trial No. 383/2014. Resultantly, appeal is dismissed.