Conviction upheld when eyewitness testimony corroborated by medical evidence, despite absence of weapon, reaffirming the limitations of revisional jurisdiction.

JUDGMENT &ORDER :

KAUSHIK GOSWAMI, J.

Heard Mr. D. Talukdar, learned counsel appearing for the petitioner. Also heard Ms. A. Begum, learned Additional Public Prosecutor, Assam appearing for the State respondent.

2. By way of this petition under Section 401 read with Section 397 of the Code of Criminal Procedure, 1973, the accused/petitioner is challenging the judgment and order dated 05.05.2010 passed by the learned Chief Judicial Magistrate, Kamrup, Guwahati whereby the accused/petitioner was convicted under Section 325 of the INDIAN PENAL CODE and sentenced to undergo simple imprisonment for a period of six months and a fine of Rs.5000/-, in default, to suffer simple imprisonment for another two months in G.R. Case No.3108/2008 and the judgment and order dated 15.09.2012 passed by the learned Additional Sessions Judge, Kamrup, Guwahati in Criminal Appeal No.32/2010 whereby the appeal filed by the accused/petitioner was dismissed upholding the aforesaid judgment and order of conviction of the Trial Court in G.R. Case No.3108/2008.

3. The brief facts of the case are that on 21.04.2008 at about 10:00 p.m. at night the informant/PW-1 was attending a meeting at the premises of Barpratima Mahkhuti Rajohowa Namghar wherein, all of a sudden, the accused/petitioner administered one blow with an axe over his left hand and caused serious injury. Accordingly, an F.I.R. was lodged whereupon Palashbari P.S. Case No.79/2008 was registered under Section 326 /307 of the IPC. Upon completion of investigation the police submitted charge-sheet against the accused/petitioner under Sections 326 /307 of the IPC. However, on appearance of the accused before the Trial Court and after examining the materials available the learned Trial Court framed charge under Section 325 IPC against the accused/petitioner.

4. During trial, the prosecution examined as many as six witnesses including the Medical Officer and Investigating Officer and the defence did not examine any witness and his case under Section 313 Cr.P.C. is a total denial.

5. On conclusion of the trial, the learned Trial Court convicted the accused/petitioner under Section 325 of the IPC which upon being assailed before the Appellate Court the same was upheld. Situated thus, the present Revision Petition has been filed.

6. Mr. Talukdar, learned counsel for the accused/petitioner submits that the evidence on record does not warrant the conviction of the accused/petitioner under Section 325 IPC. He further submits that the alleged weapon has not been seized and in any case the lacerated injury as stated by the Medical Officer cannot have been inflicted by an axe. He further submits that there is no cogent evidence to show that the accused/petitioner assaulted PW-1 with an axe as none of the witnesses who were present had seen the occurrence. He further submits that the ocular evidence of PW-1 that he was assaulted with an axe by the accused/petitioner is also inconsistent with the medical evidence of PW-5 the doctor who has clearly opined that PW-1 was injured with a blunt object. He accordingly submits that the conviction is totally erroneous in law and is liable to be set aside. He further submits that the learned Trial Court ought to have given the benefit of Probation of Offenders Act considering the nature of allegation and also the fact that he is a student and moreover there is no criminal antecedent. Alternatively, he submits that the six months sentence is excessive and the same may be adequately reduced.

7. Per contra, Ms. A. Begum, learned Additional Public Prosecutor submits that both the Trial Court and the Appellate Court has properly as