ORDER :

1. Leave granted.

2. This appeal is directed against the judgment and order dated May 07, 2024 [impugned order] passed by a learned Judge of the High Court at Calcutta.

3. While disposing of a criminal appeal [Crl. Appeal No.222 of 2001] under Section 374(2), Code of Criminal Procedure, 1973 carried by the appellants from the relevant Sessions Court's judgment of conviction for commission of offences punishable under Section 307 read with Section 34 of the INDIAN PENAL CODE , 1860 [IPC] and order on sentence whereby they were sentenced to seven years of rigorous imprisonment plus fine of Rs.500/- each, the High Court, for the reasons assigned in the impugned order, was of the view that the conviction of the appellants under Section 307 , IPC is not sustainable and as a consequence, the High Court set aside the conviction under Section 307 , IPC; however, it convicted the appellants under Section 326 , IPC read with Section 34 thereof and sentenced them to three years' rigorous imprisonment.

4. Notice was issued on the special leave petition, out of which this appeal arises, as to whether the High Court should have convicted the appellants under Section 324 , IPC instead of Section 326 thereof.

5. We have heard learned counsel appearing for the parties and perused the evidence on record.

6. There is evidence on record attributing the injuries inflicted on the victim (PW-9) to the appellants. For infliction of injury, bamboo sticks and a 'battam', i.e., a wooden log, were used as the weapons of offence by the appellants. The victim suffered a head injury, whereupon he was taken to the local primary health center. Two stitches were administered by the doctor at such centre. The victim himself deposed that he did not name the appellants as his assailants before the said doctor. The victim was later on referred to the sub-divisional hospital; there also, he did not disclose to the doctor attending on him (PW-11) that the appellants were the assailants. It appears from the evidence of PW-11 that the victim had disclosed of having suffered the head injury as a result of physical assault.

7. Considering the nature of evidence tendered before the relevant Sessions Court, it is not too clear as to what were the sizes of the weapons of offence and how heavy they were; also, it is unclear as to whether they were instruments which, used as weapons of offence, were likely to cause death. Thus, it is doubtful as to whether such weapons would constitute "dangerous weapons" within the meaning of Section 326 , IPC.

8. There being such doubt as to whether the weapons used were dangerous, conviction of the appellants under Section 326 , IPC cannot, therefore, be sustained and benefit of lesser offence seems to be justified on facts and in the circumstances.

9. We are of the considered view that there was sufficient material on record for which the High Court would have been justified if, instead of Section 326 , IPC, it were to proceed to convict the appellants for the offence punishable under Section 325 thereof.

10. PW-11 had testified that as a result of the injury suffered by the victim, he had to be hospitalized; while the victim was admitted on 31st August, 1994, he was discharged after for more than 20 (twenty) days' hospitalization on 22nd September, 1994. One can reasonably presume that as a result of the hurt suffered by the victim, he was in bodily pain for all these days and unable to follow his ordinary pursuits. In view of Section 320 , IPC, the same answers the eighth kind of hurt and constituting 'grievous hurt' as it does, the appellants cannot escape conviction