Crl.A. 390/2002 BEFORE THE HON’BLE MR. JUSTICE HRISHIKESH ROY Aggrieved by the judgment and order dated 5.10.2002 in Sessions Case No. 205/200 1 rendered by the learned Sessions Judge, Sonitpur at Tezpur, whereby the appell ant has been convicted under Section 326/341 IPC and have been sentenced to 3 ye ars rigorous imprisonment and also to pay a fine of Rs.500/- and in default to u ndergo R.I for 1 month and further sentence of R.I. for 3 months for conviction under Section 341 IPC, the present Appeal has been filed. 2. Heard Mr. KK Phukan, learned counsel appearing for the appellant . Also heard Mr. BB Gogoi, learned Addl. Public Prosecutor who represents the S tate. 3. On 21.3.2001 an F.I.R. was lodged in the Biswanath Chariali poli ce station by Kamal Bormudoi (PW 1) with the information that on 21.3.2001 at ab out 7:30 a.m., the appellant wrongfully restrained the brother of the informant, Khirodhar Bormudoi on the road and inflicted several dao blows on his said brot her. Accordingly Biswanath Chariali PS Case No. 49/2001 was registered and the p olice arrested the accused and charged him under Section 341/326/307/506 IPC. As one of the offence was exclusively triable by the learned Sessions Court, the l earned Judicial Magistrate 1st Class, committed the case to the Court of the lea rned Sessions Judge. 4. In course of trial 9 witnesses were presented for the prosecutio n but the defence did not produce any witness. 5. 4 prosecution witnesses i.e. PW.3, P.W.4, PW.6 & P.W.8 were decl ared hostile witnesses and accordingly the evidence of the injured witness P.W.2 and evidence of the informant PW.1 are relevant for considering the legality of the conviction. 6. From the evidence given by the PW.7 Dr. B Sarmah who was the Sen ior Medical Officer at the Biswanath Chariali Civil Hospital on 21.3.2001, the d ay of the incident, the following injuries were found on the victim : 1. One sharp cut injury in the forehead (5 cm x 0.5 cm x 1 cm). 2. Another sharp cut injury with right wrist just extending upto the palm ( 7.5 cm x 0.5 x 1 cm). 3. One small sharp cut injury with right ring finger. 4. One sharp cut injury with middle of the abdomen which is superficial (7 cm x 0.25 cm x 0.5 cm) 5. Another sharp cut injury on the left elbow joint on the external surface (5 cm x 0.5 cm x 0.5 cm). 6. One sharp cut injury with middle part outer aspect of the right thigh (7 .5 cm x 1 cm x 0.5 cm). 7. By referring to the above injuries, Mr. Phukan, learned counsel contends that the injuries were considered by the doctor to be simple and not gr ievous injuries and therefore the conviction of the appellant under Section 326 is unjustified. The learned counsel refers the definition of grievous hurt giv en in Section 326 and submits that since the injuries suffered by the victim wer e simple injuries and the offending weapon (’dao’) could not be produced in Cour t although allegedly seized by the police, the conviction should be converted to one under Section 324 instead of Section 326, because of the simple nature of i njuries. 8. It is also contended on behalf of the appellant that since the e vidence of the injured victim is not corroborated by any of the other witnesses including the eye witnesses (PW.6), the conviction of the appellant is not susta inable. 9. The injured witness (PW.2) Khirodhar Bormudoi in his evidence ha d given a cogent picture of the assault made by the accused. The witness clearly stated that ’dao’ blows were inflicted on his forehead, hand, left elbow joint, stomach and right thigh. The injuries mentioned by the witness are all corrobor ated by the evidence on injuries recorded on the victim, by the doctor who treat ed him as an indoor patient from 21.3.2001 to 27.3.2001 in the Biswanath Charial i Civil Hospital. Therefore I am of the considered opinion that the conviction f or the attack can be sustained solely on the basis of the evidence of the injure d victim, as the same is to be found to be trustworthy and is corroborated by th e medical evidence. 10. However the nature of the injuries do not suggests that the vict im suffered any grievous injuries within the definition of Section 326 of the IP C. The doctor too has opined that the injuries are simple in nature. In such sit uation, it appears to be a case of simple hurt punishable under Section 324 of t he IPC. 11. Having concluded thus, the conviction of the appellant is ordere d to be converted from one under Section 326 to one under Section 324 of the IPC . The impugned conviction is modified accordingly. Sentence is also interfered w ith and the accused is sentenced to undergo R.I for 3 months for his conviction for an offence under Section 324 IPC instead of Section 326. The sentence of fin e is sustained. 12. Interference with the conviction of the appellant under Section 341 IPC is not found justified. However the Court below has sentenced the appell ant to 3 months R.I, although the maximum punishment prescribed for conviction u nder Section 341 is 1 month only. In such circumstances the punishment for convi ction under Section 341 is converted to 1 month instead of 3 months. 13. As the appellant is on bail, 60 days time is granted to the appe llant to surrender before the Court of the learned Sub-Divisional Judicial Magis trate, Biswanath Chariali to serve out the remaining part of his sentence. The t ime spent in jail before bail was granted to him be set off. Both sentences to r un concurrently. 14. The Appeal stands partially allowed to the extent indicated abov e. 15. The LCRs be returned forthwith.