Where medical evidence exclusively reveals blunt injuries, contradicting witness accounts of an assault by sharp-edged weapons, a conviction for causing hurt by a dangerous weapon (Section 324 IPC) cannot be sustained and must be reduced to simple hurt (Section 323 IPC).

JUDGMENT :

Ananya Bandyopadhyay, J.

1. This appeal is preferred against judgment and order of conviction and sentence dated 16th December, 2006 passed by the Learned Additional Sessions Judge, Fast Track Court-I, Krishnagar in Sessions Case No. 90(9) of 2005 convicting the appellant nos. 1, 2 and 3 under Sections 324/323/34 of the Indian Penal Code and sentenced them to suffer rigorous imprisonment for two years each for the offence punishable under Sections 324/34 of the Indian Penal Code and further sentenced them to suffer rigorous imprisonment for six months each for the offence punishable under Sections 323/34 of the Indian Penal Code and convicting the appellant nos. 4 and 5 under Sections 323/34 of the Indian Penal Code and sentenced them to suffer simple imprisonment for six months for the offence punishable under Sections 323/34 of the Indian Penal Code. All the sentences shall run concurrently.

2. The prosecution case precisely stated one Tapas Kundu moved to the Court of the Learned Chief Judicial Magistrate, Krishnagar and filed a written complaint narrating on 09.09.2002 at about 3.30 p.m. his elder brother Ashoke Kundu in the course of unloading and alighting wet jute sticks from a cart pulled by oxen, was assaulted by the appellants armed with “lathi”, “hesua” and “ballam” etc. at the spot of occurrence. Appellant Mandan Kundu assaulted Ashoke Kundu by a “dao” on his head with the intention to murder him. Ashoke Kundu being injured ran into the house of one Kesab to save himself. The appellants chased him inside the house of Kesab and assaulted Ashoke Kundu by “hesua”, “dao” on different parts of his body. The mother of Ashoke Kundu namely, Santi @ Shanti Kundu arrived to save her son from the clutches of the appellants, however, the appellants also assaulted her by fists, blows and kicks. On raising alarm, Santi @ Shanti Kundu, other localites including Panchayet Pradhan came to the spot and the appellants fled. The complainant along with his wife, injured elder brother Ashoke Kundu and other localites went to the local police station. The police advised them to take the injured victim/Ashoke Kundu to Bethuadari Hospital for treatment.

3. On the basis of the complaint filed in Court, Nakashipara P.S. Case No.145/02 dated 14.09.2002 under Sections 147/148/149/447/323/427/326/307/34 of the Indian Penal Code was initiated.

4. On completion of the investigation, the investigating agency submitted charge-sheet against the appellants under Sections 147/ 148/ 149/ 325/306/307/447/427 of the Indian Penal Code.

5. Charges were framed against the appellants under Sections 148/307/448/325/34 of the Indian Penal Code to which the appellants pleaded not guilty and claimed to be tried.

6. The Learned Advocate representing the appellants submitted as follows:-

i. Law provides that an F.I.R., after its lodgment, to be dispatched before the Learned Jurisdictional Magistrate at the earliest, preferably within 24 hours. Surprisingly in the present case the F.I.R. was dispatched after 6 days i.e. on 20.09.2002, though the complaint was registered in the police station on 14.09.2002. No explanation as such was forthcoming from the side of the prosecution for the inordinate delay.

ii. Framing of charges in this case was not proper since the Learned Trial Judge did not specify two separate places of occurrence while framing the charge.

iii. Description of the incident as stated by PWs-1, 2 and 3, if thoroughly scrutinized w