Crl.A. 214/2007 BEFORE HON\BLE MR JUSTICE B D AGARWAL The appellant herein stands convicted under section 324/ 326/ 341/ 307 of the I ndian Penal Code, vide impugned judgment and order dated 29.08.2007, passed by l earned Assistant Sessions Judge No. 2, Cachar, Silchar in Sessions Case No. 62 of 2005. After convicting the appellant, various sentences have been awarded to him , maximum being 7 (seven) years rigorous imprisonment with fine of Rs. 5000 /- for conviction u/s 307 IPC and for conviction under section 326 of the IPC, the appellant has been sentenced to 5 (five) years rigorous imprisonment with f ine of Rs.2000/- . 2. Being aggrieved with the conviction and sentence, the accused has prefer red this appeal. 3. I have heard Mr. MH Rajbarbhuiyan, learned senior counsel for the Appell ant. Also heard Mr. K Munir, learned Addl.P.P. for the State. Also perused the i mpugned judgment. 4. From the oral evidence of the witnesses, it is apparent that both the ac cused and the victim are immediate neighbors and they are also distantly related . Not only that, they have land dispute and one counter FIR was also lodged by t he accused / appellant against the victim ( PW-1), alleging that he had committe d rape upon the daughter of the accused. Amidst this background, the appellant h erein restrained the victim on the way and assaulted him with a dao. 5. The incident took place in the afternoon of 26.07.2003 just few meters a way from the house of the victim. The wife of the informant herself is the eye-w itness. Besides this, PW-6 had also witnessed the assault. Since the accused was known to them, being their neighbor, there was no confusion about the identity of the assailant. As per the medical report, the following injuries were noticed upon the person of the injured by the Doctor: (i) Incised injury over left shoulder measuring ( 3x1x1) cm 3. (ii) Incised injury between the right finger and little finger extending from the palmar surface to the dorcem of hand measuring ( 5 x 1x 1) cm 3. (iii)Incised injury over upper part of back right side ( 10 x1/4 x1/4 ) cm ( iv)Inability to extend the right little finger due to exterior tendon cut. 6. In the opinion of the doctor, injury Nos. (i), (ii) and (iii) were simpl e but the injury No. (iv) was grievous in nature. The doctor further opined tha t the injuries were fresh and might have been caused by a sharp cutting weapon. Apparently, no injury was inflicted on any vital organ of the body. Besides this , when the wife of the victim intervened, the accused left the scene. Had the ap pellant any intention of committing murder of PW-1, he had ample opportunity to inflict a fatal blow since the injured was going on a scooter. I am also of th e view that when the accused was prevented / obstructed by the wife of PW-1, the appellant could have also assaulted the victim’s wife, having failed to kill he r husband. However, no such step was taken by the appellant. Besides this, the i njured was released from the hospital on the same night. For these reasons, I a m not persuaded to affirm the conviction of the appellant under section 307 of t he IPC. 7. I have already noted earlier that according to the doctor, injury No. iv was grievous in nature. Besides this, heavy sharp weapon was used in the assaul t. Hence, the conviction of the appellant under section 326 of the IPC is hereby maintained. I am of the considered opinion that if a person is convicted for a major offence, there is no need to convict him for a minor offence of identical nature. Hence, the conviction of the appellant under section 324 of the IPC is hereby set aside. However, the conviction of the appellant under section 341 of the IPC is hereby affirmed, since PW-1 was assaulted by restraining him on the road. 8. With regard to the quantum of sentence, Mr. Rajbharbhuiyan submitted tha t the appellant is suffering from cardiology ailments and as per the doctor’s re port, the appellant is also suffering from ’Lumbago - sciatica syndrome’ and the appellant is under continuous treatment in jail and also in the government hos pital. Documents of his medical treatment have been annexed with the Misc case N o.567 of 2008. In view of the above substantive sentence for conviction under se ction 326 of the IPC is reduced to 4 years. However, fine amount is enhanced to Rs.20,000/- from Rs. 2,000/- .At the same time, fine amount Rs. 100/-for convict ion under section 341 of the IPC is maintained. 9. In the result, the appeal stands dismissed. However, the appellant is he reby acquitted from the offence under section 307 of the IPC. At the same time, the conviction under section 324 IPC is merged with conviction 326 of the IPC. T he sentence is also modified to the extent that the appellant shall undergo rigo rous imprisonment for 4(four) years and pay fine of Rs. 20,000/- for his convict ion under section 326 of the IPC. In default of payment of fine, the appellant shall undergo further rigorous imprisonment for 2(two) months. The appellant sha ll also pay a fine of Rs.100/- for conviction under section 341 of the IPC and, in default, he will undergo simple imprisonment for 9 ( nine) days, as awarded b y the learned Trial Court. 10. In the event of deposit of fine amounts, the court shall pay a sum of Rs .15,000/- ( Rupees fifteen thousand) to the injured as compensation, after prope r identification and obtaining receipt, and rest of the amount shall be deposite d in the treasure. 11. The Registry is directed to return the LCR with a copy of this judgment. On receipt of the Judgment, the learned Trial court shall issue modified custo dy warrant immediately.