The appellants have been convicted for the offence punishable under Section 326 read with Section 34 of the Indian Penal Code and they are sentenced to suffer rigorous imprisonment for three years each and to pay a fine of Rs.1,000/- each, in default to suffer rigorous imprisonment for six months.

2. The appellants were chargesheeted for the offence punishable under Section 307 read with Section 34 of the Indian Penal Code. However, the learned trial Judge found them guilty of the offence punishable under Section 326 read with Section 34 of the Indian Penal Code.

3. Learned Senior Counsel Shri Anil Mardikar has submitted that the appellants do not agitate all the points raised by them in appeal. It is submitted that since the description of the weapon, which caused fracture to P.W.1 and the fracture of skull bone of outer table of parietal temporal region of P.W.2 has not come on record, it was not correct on the part of the learned trial Judge to record conviction under Section 326 of the Indian Penal Code. My attention was brought to the provision of Section 326 of the Indian Penal Code, which reads as under :

"326. Voluntarily causing grievous hurt by dangerous weapons or means Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with (imprisonment for life), or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

4. Learned Senior Counsel Shri Anil Mardikar has contended that the prosecution was under obligation to establish that the weapon was either an instrument of shooting, stabbing or cutting or an instrument which, used as a weapon of assault, was likely to cause death. It is submitted that the alleged iron pipe has not been seized and therefore, description of the said iron pipe has not come on record. According to learned Senior Counsel Shri Anil Mardikar, it is, therefore, difficult to say whether it was likely to cause death or otherwise if used as weapon of assault. It may be stated here that the appellants had used weapons - one stick and one iron pipe. Stick was a bamboo stick and description of iron pipe has not come on record. P.W.1 Kisan Bundele was not able to identify the stick. It appears that iron pipe was not produced before the trial Court. P.W.2-Dipak Bundele has not stated anything about description of the weapon. It appears that neither stick nor iron pipe was shown to P.W.1 and P.W.2. It appears from the record and proceedings that iron pipe was not seized during the course of investigation. P.W.6-Bhagwansing Susadkar has also stated about seizure of stick. He has not stated anything about the iron pipe. It indicates that iron pipe was not seized during the course of investigation. I, therefore, agree with the learned Senior Counsel Shri Anil Mardikar that in the absence of iron pipe itself or the description of iron pipe, it could not have been possible for the learned trial Judge to decide as to whether it was lethal weapon. The injuries, however, were of grievous nature because both the witnesses had suffered fractures. In my considered opinion, therefore, conviction should have been recorded under Section 325 read with Section 34 of the Indian Penal Code and not under Section 326 read with Section 34 of the Indian Penal Code.

5. The learned Senior Counsel Shri Anil Mardikar has submitted that as far as sentence is concerned, this Court may take into consideration the date of incident and the date of final disposal of the appeal. It was submitted tha