P.K. Musahary, J.

1. The prosecution case leading to filing of this petition is that a complaint was filed by Smti Gitanjali Mahanta alleging that her husband, the present petitioner, after their marriage solemnised on 4.2.2003, started demanding dowry subjecting her to mental and physical torture. On 25.6.2007, the petitioner being instigated by his sister (co-accused), confining her inside the room, assaulted causing injury on her head and other parts of her body. The police registered the Jalukbari P.S. Case No. 304/07 under Sections 498A/ 323/ 307 IPC and after completion of investigation submitted charge-sheet under Section 498A/ 323/ 34 IPC and the learned trial court framed charge under the aforesaid sections of law against the petitioner and his sister Smti Purnima Kumari. The accused persons denied the charge and faced the trial. The prosecution examined 8 witnesses including the I.O. and the M.O. The defence examined no witness and the learned trial court on the basis of evidence on record held that the prosecution has failed to prove the charge under Section 498A IPC against the accused persons and acquitted them of the charge under Section 498A IPC. However, the learned trial court on the basis of evidence, particularly the evidence of the medical officer found the present petitioner (husband of the complainant) guilty under Section 323 IPC and sentenced him to suffer simple imprisonment for three months. The learned trial court came to conclusion that there is no evidence establishing the act of incitement by the accused Smti Purnima Kumari in committing the offence by the petitioner under Section 498A IPC and held that she cannot be fastened with offence with the aid of Section 34 IPC. The co-accused Smti Purnima Kumari was acquitted of all the charges. The order of conviction and sentence against the petitioner was handed down by the learned Judicial Magistrate, 1st Class, Karnrup, Guwahati vide judgment dated 18.10.2010 rendered in G.R. Case No. 4087/07.

2. The petitioner on being dis-satisfied and aggrieved by the order of conviction and sentence filed an appeal before the learned court of Sessions Kamrup, Guwahati which was registered as criminal appeal No. 86 of 2010. The appellate court below upon hearing the learned counsel for the parties and on consideration of evidence on record delivered the impugned judgment dated 25.2.2011 affirming the conviction of the petitioner under Section 323 IPC with modification in the sentence of imprisonment to undergo simple imprisonment for three months to pay only a fine of Rs. 1000/-, in default, simple imprisonment for two months.

3. The petitioner, being further dissatisfied with and aggrieved by the appellate Court's judgment preferred the present petition for quashing and setting aside the judgment of the trial court as well as the appellate court so far as they relate to conviction and sentence imposed on him under Section 323 IPC.

4. I have heard Mr. BK Mahajan, learned counsel for the petitioner and Mr. D Das, learned Addl. Public prosecutor, Assam for the respondent Mr. Mahajan, learned counsel submits that so far as allegation of assault on the complainant is concerned there is no eye witness inasmuch as the alleged assault was committed inside the room and the learned trial court committed error in law in coming to a conclusion that the petitioner committed the assault on his wife, solely on the basis of opinion of the medical officer who, after medically examining her found tenderness on the front of her neck and mild swelling over the occipital parietal region of the scalp. The learned Courts below did not take into consideration the doctor's opinion that the injury sustained by the Injured is simple in nature and caused by blunt weapon. The learned courts below also did not take into consideration that the medical officer P.W. 7 did not record in her report the age of the injuries found on the persons of the complainant and also the opinion that such i