IMPORTANT POINT
Where the sentence is imprisonment and fine, while awarding imprisonment in default of fine under section 65, Indian Penal Code must he read harmoniously with sections 30(1)(b) and 29 of Criminal Procedure Code, 1973.

JUDGMENT

V. Gopalaswami, J. - This revision is preferred against the judgment dated 27-10-1984 passed by the Second Additional Sessions Judge, Herhampur, in Criminal Appeal No. 66 of 1983 (8/83-G), confirming the order of the Judicial Magistrate, First Class, Bhanjanagar, in G.R. Case No. 217 of 1987, convicting the petitioner under section 326, I.P.C. and sentencing him there under to undergo rigorous imprisonment for one year, and to pay a fine of Rs. 500/-, in default, to undergo rigorous imprisonment for a further period of one, with a direction that out of the fine amount, if realised, an amount of Rs. 250/- be paid to P.W. 3 Balakrishna Bisoi.

2. On a proper consideration of the evidence of P. Ws. 1 to 4 and the evidence of the doctor (P.W. 5), both the courts below have come to a finding that the petitioner had voluntarily caused grievous hurt to Balakrishna Bisoi (P. W. 3) by giving a blow on his neck with a Kati and thereby rendered himself liable under section 326, I.P.C.

3. At the outset the learned Counsel for the petitioner contended that the prosecution has not satisfactorily proved that the injury caused on the person of P. W. 3 was grievous in nature and therefore, the petitioner is liable under section 324, I.P.C. and not under section 326, I.P C. That on account of the blow given by the petitioner with a Kati P.W. 3 sustained an incised wound on his neck, is not challenged at the time of hearing. Dr. Sahu (P.W. 5) deposed that on 7-6-1977, at about 9.30 P.M., he examined Balakrishna Bisoi (P.W. 3) and found an incised wound on the back of his neck and the age of the injury was within about half an hour from the time of his examination. So it is evident that the injured got himself examined by the doctor soon after the occurrence. The doctor opined that the injury noticed by him on the neck of P.W. 3 was grievous in nature. He proves the medical certificate - Ex. 2 given by him which also mentions that the injury sustained by P.W. 3 was grievous in nature.

The learned counsel for the petitioner contended that the doctor had not explained how the injury was grievous in nature. But then there is absolutely no cross-examination of the doctor regarding his opinion that the injury in question was grievous in nature. So the evidence of the doctor that the injury was grievous in nature goes unchallenged. In any event the medical evidence can be safely relied on at least for corning to a finding that there was an incised wound on the neck of P. W. 3 caused by the Kati blow given by the petitioner. The incised wound on the neck of P.W. 3 inflicted with a sharp-edged weapon like a Kati must be considered serious enough so as to "endanger the life" of P.W. 3, within the meaning of Clause 8 of section 320, I.P.C. and, therefore, the same must be held to be a grievous injury. So the con section under section 326, Cr. P.C. is justified.

4. The case was tried by the Subordinate Judge, Bhanjanagar, acting as the Court of a Judicial Magistrate, First Class. Under section 29(2), Cr. P.C. as such Magistrate of the First Class, he may pass a sentence of imprisonment for a term not exceeding three years. In this case while convicting the accused under section 326, I.P.C. the learned Magistrate sentenced him to rigorous imprisonment for one year and also to pay a fine of Rs. 500/-, ill default, to undergo rigorous imprisonment for a further period of one year. It is the legality of the award of one year's R.I. in default of payment of fine, which is being questioned by the learned Counsel for the petitioner.

5. Where the sentence is imprisonment and fine, as in the present case, section 30, Cr. P.C. should be read with section 65, I.P.C. as well section 30, Cr. P.C. reads thus:

"Sentence of imprisonment in default of fine-(1) The Court of a Magistrate may award such term of imprisonment in default of payment of fine as is authorised by law:

Provided that the term-

(a) is not in excess of the powers of the Magistrate under section