1. This is a criminal revision petition filed under Sections 397/401 read with Section 482 of the Cr.PC, challenging the legality and propriety of the judgment and order, dated 30.10.2006 passed by the learned Chief Judicial Magistrate, Jorhat, in GR Case No. 90/2005, convicting the accused petitioner under Section 326 of the IPC and sentencing him to suffer rigorous imprisonment for 2 (two) years and to pay a fine of Rs. 2,000/-, and in default, to suffer rigorous imprisonment for a further period of 3 (three) months and also the judgment and order, dated 10.05.2007, passed by the learned Sessions Judge, Jorhat in Criminal Appeal No. 48/2006, upholding the aforesaid judgment of the learned Chief Judicial Magistrate, Jorhat.

2. Heard Mr. Santanu Bora, learned counsel appearing for the accused petitioner as well as Mr. PS Lahkar, learned Additional Public Prosecutor, appearing for the State of Assam.

3. The case for the prosecution is that on 05.02.2005, at about 8:20 pm, informant’s son/injured, Dipankar Kalita went out of the house after taking dinner. There the injured saw some cows entering into their campus. He drove away the cows but the cows damaged the nearby vegetable shop, which was owned by the accused petitioner. After the cows damaged the vegetable shop, Sri Sonaram Kalita and Sri Gathi Kalita, the father and the brother of the accused petitioner, respectively charged the injured/PW1 and assaulted him. He fell down, and at that time, the accused petitioner inflicted dao blow on his head causing injuries. While he raised hue and cry, his parents came out of their house and then took him to Jorhat Civil Hospital and from there the injured was shifted to Assam Medical College Hospital, Dibrugarh.

4. On the basis of such facts, the PW3, Smti Kabita Kalita, the mother of the injured/PW1, lodged the FIR with the Bhogdoi Police Out Post and on receipt of the FIR through Bhogdoi Police Out Post, the Jorhat Police Station registered a case, being Case No. 36/2005, under Sections 341/326 of the IPC.

5. The Police, after completion of investigation of the case, submitted charge-sheet against the accused petitioner under Sections 341/326 of the IPC.

6. The learned Trial Court, framed a formal charge against the accused petitioner under Sections 341/326 of the IPC, to which he pleaded innocence.

7. That bring home the charge, the prosecution examined as many as 8 (eight) witnesses, including the Medical Officer and the Investigating Police Officer. The defence examined 3 (three) witnesses in rebuttal.

8. In the statement recorded under Section 313 of the Cr.PC, the accused petitioner is found to have denied the accusation levelled against him. The accused petitioner is also found to have taken the plea, during the cross-examination of the prosecution witnesses as well as during the defence evidence, that he was not at the place of occurrence, and as such, he had taken the plea of alibi.

9. In this case, the learned Trial Court in recording the order of conviction mostly relied upon the evidence of PW1, PW2 and PW3, i.e., the injured, his father and his mother, respectively.

10. The PW5, PW6 and PW7 are not the eye-witnesses to the occurrence. The PW5, PW6 and PW7, in their respective evidence, claimed that they heard about the incident and went to the house of the injured, PW1.

11. PW5 came to the house of the injured/PW1 in the night on the date of occurrence itself, after hearing about the incident, and saw that the injured was bleeding from his head and the PW2 told him that the accused petitioner caused him the injuries.

12. PW6 also came to the house of the injured, after hearing that the accused petitioner caused hurt to the injured/PW1.

13. PW7 also visited the house of the injured/PW1 in the night of the occurrence itself as he heard halla and he also saw injuries on the head of the PW1.

14. So, it appears from the evidence of PW5, PW6 and PW7 that, as stated above, none of them were eye-witness to the occurrence.