Chandra Bhushan Bajpai, J.

1. This revision is directed against the judgment dated 05-03-2003 passed by the Additional Sessions Judge (FTC) Kawardha in Criminal Appeal No. 44/2002 whereby and whereunder while dismissing the appeal filed on behalf of petitioner Abhay Ram and partly allowing the appeal filed on behalf of other two petitioners namely Chamra and Parmeshwar against order dated 25-02-2002 passed by Judicial Magistrate First Class, Kawardha in Criminal Case No. 162/2001, conviction and sentence awarded to petitioners Chamra and Parmeshwar were modified in the following manner:-

Petitioner Conviction and sentence (by trial court) Modification in conviction and sentence (by appellate court)

Chamra u/s 326/34 of the IPC – R.I. for three years and fine of Rs. 5,000/-, indefault, additional imprisonment for three months. u/s 326/34 of the IPC – R.I. for one year and fine of Rs. 5,000/-, in default, R.I. for three months.

u/s 323/34 of the IPC – R.I. for three months. u/s 323 of the IPC (three times) – R.I. for three months.

Parmeshwar u/s 326/34 of the IPC – R.I. for three years and fine of Rs. 5,000/-, indefault, additional imprisonment for three months. u/s 326/34 of the IPC – R.I. for one year and fine of Rs. 5,000/-, in default, R.I. for three months.

u/s 323/34 of the IPC – R.I. for three months. u/s 323/34 of the IPC (three times) – R.I. for three months.

Petitioner Abhay Ram was convicted and sentenced by the trial court in the following manner. Appeal filed on his behalf was dismissed and his conviction and sentence was affirmed by the appellate court.

Petitioner Conviction and sentence

Abhay Ram u/s 326 of the IPC – till rising of the court and fine of Rs. 5,000/-, in default, additional imprisonment for three months.

u/s 323 of the IPC – till rising of the Court.

2. The appellate court affirmed the judgment of conviction and sentence passed by the trial court dismissing the appeal filed by petitioner Abhay Ram, and instead of sentence awarded under Section 326/34 of the IPC to appellants/present petitioners Chamra and Parmeshwar, reduced the sentence upto one year's rigorous imprisonment and also sentenced them under Section 323/34 of the IPC (three times) and sentenced them under Section 323/34 of the IPC for three month's rigorous imprisonment, fine sentence awarded to appellants/present petitioners Chamra and Parmeshwar is affirmed and ordered that all the rigorous imprisonments awarded shall run concurrently.

3. Conviction and sentence is challenged on the ground that courts below have committed illegality by convicting and sentencing the petitioners in absence of admissible evidence and material sufficient for warrant conviction.

4. Learned counsel appealing for the petitioners submits that there was free fight between the parties, petitioner Chamra also sustained injuries in that incident. A counter criminal case lodged against the victims of this case, the same trial court has tried the counter case in which the victims too are convicted and they are ultimately acquitted by the appellate court. There are omissions and contradictions in the statement of the witnesses. The witnesses are not supporting over material points to each other. Learned counsel for the petitioners further submits that for conviction under Section 326 of the IPC, it is required that the act should be voluntarily to cause grievous hurt by dangerous weapon or means is mandatory. In this case, weapon used by the petitioners was axe and battle axe which is not a dangerous weapon. The witnesses are near relatives of the victims. Witnesses are interested witnesses. There was no intention to cause grievous hurt to the victims and the petitioners are near relatives, they are residing in near vicinity, their fields are connected. The incident took place on a petty cause. After the incident, both parties are living in a cordial relation. There was no dispute after the said incident. The doctor opined that there could be no death on account of injur