(1) THIS appeal has come to this court on special leave granted by this court against conviction of the appellant under S. 326 Indian Penal Code who is sentenced to undergo imprisonment for four years. The leave was granted on the question of sentence and on the question of offence.

(2) THE injuries suffered by the complainant which have been reproduced in the judgment of the High court show that there were three lacerated wounds and one contusion. One of the injuries that is injury No. 1 on X-ray examination was found to be grievous as there was a fracture. It appears that the prosecution allegation was that a spade (phawra) was used as an instrument for an offence and taking a spade as a sharp-edged weapon the conviction of the appellant was maintained under S. 326 IPC.

(3) IT could not be doubted that the injuries in the nature of lacerated wound or contusion could not be caused by an impact of a sharpedged weapon on the human body. Such injuries are only possible by the use of a hard and blunt object. May be that the spade was the instrument of an offence but it might have been used in a manner in which the hard and blunt part of it came in contact with th