An accused charged with an offense under Section 307 IPC can be convicted under Section 326 IPC without a specific charge being framed under Section 326 IPC, provided that the offense under Section 326 IPC is not a minor offense in relation to the offense under Section 307 IPC.

( 1 ) THIS appeal is directed against the judgment and order of conviction and sentence passed by the learned Addl. Sessions Judge, 2nd Court. Bankura in Session Case No. 2 of December, 1984 (ST. No. 2 of Feb. , 1985 ). The learned Judge by the impugned order sentenced the appellant (Dwijabar alias Dwijapada now deceased) to suffer R. I. for four years and pay a fine of Rs. 200/- i. d. to suffer R. I. for one month more for an offence under section 326 IPC.

( 2 ) THE prosecution case, in short, is that on 27. 6. 83 at about 10. 00 a. m. over some quarrel, the sons of appellant Dwijabar were abusing Amarendra Palit and his sons in filthy language. Tapan S/o Amarendra protested when the appellant and his son, Pradip came out with an iron crow-bar and the appellant threw the spear which struck Tapan at the upper part of his abdomen causing a bleeding injury. Amarendra rushed out of his house and held Dwijabar and detained him till the arrival or police from the local P. S. On the complaint or Smt. Basanti Palit W/o. Sri Amarendra, Onda P. S. case No. 7 dated 27. 6. 83 was started and it culminated in a charge-sheet undersection 326 and 307/34 IPC against the appellant and his son, Pradip; charge was framed undersection 307/ 34 IPC. against both and they pleaded not guilty thereto. The defence plea was that Amarendra brought out Dwijabar by pulling his hair from his house and started beating him with a lathi. The sons of Dwijabar came out on seeing this. At that time, Tapan and Tarun, sons of Amarendra came out with a crow-bar and a spear. Pradip tried to snatch away spear from Tapan and in the push and pull, the spear accidentally went into the abdomen of Tapan.

( 3 ) THE learned trial Judge has been pleased to hold after trial that the appellant voluntarily caused grievous hurt Tapan by means of a spear and as such he committed the offence undersection 326 IPC but not with the intention of causing his death. The learned Judge further held that the other accused person was entitled to an order of acquittal. The learned Judge has accordingly convicted the appellant for an offence under section 326 IPC and has sentenced him to suffer R. I. for four years and to pay a fine of Rs. 200/- i. d. to suffer R. I. for one month more.

( 4 ) BEING aggrieved by and dissatisfied with the judgment and order of conviction and sentence passed by the learned Judge, the appellant has come before this court. It is to be noted the during the pendency of the appeal, the appellant has died. His son. Pradip filed and application under section 394 (2) Cr. PC for leave to continue the appeal, Leave has been granted as prayed for.

( 5 ) MR, Kishore Mukherjee, learned senior Advocate, appearing on behalf of the appellant has submitted that the impugned order of conviction and sentence cannot be sustained on the twin grounds inter alia, that after framing a charge under section 307/24 IPC, the appellant can't be convicted for an offence under section 326 IPC, and that the prosecution side failed to discharge its obligation by not explaining the injuries sustained by the appellant. Besides these two points, the learned lawyer has also submitted that the learned Judge has failed to properly appreciate the facts of the case and has thereby come to an erroneous decision of facts.

( 6 ) MR. Swapan Mallick, learned State advocate has seriously controverted the points raised by Mr. Mukherjee. According to the learned State advocate, the impugned judgment and order of conviction does not suffer from any infirmity and should be confirmed.

( 7 ) MR. Mukherjee, learned advocate in course of his submissions has drown the attention of this Court of Rajasthan v. Madho (AIR 1991 SC 1065 ). In that case the High Court on a reappreciation of the evidence came to the conclusion that the prosecution witnesses were guilty of shifting their stand and failed to explain the serious injuries on two respondents. The apex court held, the fact remains that bo