This is an appeal under Section 374 Cr.PC against the judgment and order dated 04.02.2009, passed by the learned Sessions Judge, Cachar, in Sessions Case No. 100/2005 under Sections 448/427/323/324/307/34 IPC, convicting and sentencing the accused/ appellant Uttam Gowala under Section 427 of the IPC to undergo Rigorous Imprisonment for 3 (three) months. Both the accused/appellants are convicted and sentenced under Section 448 of the IPC to undergo Rigorous Imprisonment for 3 (three) months, under Sections 323/34 of the IPC to undergo Rigorous Imprisonment for 1 (one) year, under Sections 324/34 IPC to undergo Rigorous Imprisonment for 1 (one) year, and a fine of Rs. 2,000/-, under Sections 326/34 IPC and Rigorous Imprisonment for 3 (three) years and Rigorous Imprisonment for 4 (four) years with a fine of Rs. 5,000/- under Sections 307/34 IPC.

2. Heard Mr. SC Biswas, learned counsel for the accused/appellants. Also heard Ms. S Jahan, learned Additional Public Prosecutor, appearing for the State of Assam.

3. The prosecution case is that the accused/appellants Jitesh Gowala and Uttam Gowala alongwith two others, armed with iron rods, Bhujali etc entered into the tea stall of the informant and caused mischief to the property of the tea stall, assaulted Gopal Choudhury @ Abul Choudhury and brother of the informant Kajal Choudhury by means of sharp weapon causing grievous injuries to their persons.

4. On the above facts, Kajal Choudhury, lodged the FIR with the Police. The Police registered a case, investigated into it, collected evidence, arrested the accused/appellants, forwarded them to judicial custody, collected medical report of examination of the injured, and finally, submitted charge-sheet against the accused/appellants under Sections 448/427/323/324/326/307/34 of the IPC.

5. The learned Sessions Judge tried the case on receipt of the same on being committed by the learned Magistrate, the case being exclusively triable by the Court of Session.

6. The learned Sessions Judge framed charges against the accused/appellants under Sections 448/427/323/324/326/307/34 of the IPC. The accused/appellants pleaded innocence to the charges.

7. The prosecution examined as many as 7 (seven) witnesses, who were subjected to cross-examination by the defense. The defense examined none. In their statement recorded under Section 313 Cr.PC, the accused/appellants are found to have denied the accusations levelled against them, while the incriminating evidence were brought to their notice.

8. The learned counsel for the accused/appellants, during the course of hearing, submitted that there is no ingredient of Section 307 of the IPC in the instant case. That apart, according to him, the accused/appellants were not guilty in view of the evidence on record. But the learned Trial Court convicted them and sentenced them as aforesaid.

9. Learned Additional Public Prosecutor, appearing for the State of Assam has referred to the medical examination report available in the case record, which was exhibited as Ext.2 during the trial. It is submitted that there is one injury in respect of injured Gopal Choudhury in the little finger of his right hand causing fracture. There is no other injury as per the said medical examination report, which attracts the provisions of Section 320 IPC to bring the offence under Section 326 IPC.

10. The medical examination report, i.e., Ext.2, is reproduced below for proper appreciation of the evidence relating to the injuries sustained by the injured persons.

“I examined one Gopal Choudhury, aged 36 years and found the following injuries:-

1. An excised wound over the left arm about 7 X 3 X 2 c.m. size. Weapon used-sharp, nature of injury-simple, age of injury-fresh.

2. An incised wound over the dorsum of right hand with fractured dislocation of right little finger. Weapon used-sharp, nature of injury-grievous, age of injury-fresh.

On the same date, I examined Kajal Choudhury, aged about 50 years, and found the following i