When an accused is convicted for a higher offense, they should not be convicted for a lesser included offense arising from the same incident.

JUDGMENT :

SIBO SANKAR MISHRA, J.

1. The present Criminal Revision Petition filed under Sections 401 & 397 of Cr.P.C. is directed against the judgment dated 13.08.2010 passed by the learned Additional Sessions Judge, Sonepur in Criminal Appeal No.45 of 2005, whereby the judgment of conviction and order of sentence dated 07.10.2005 passed by the learned S.D.J.M., Sonepur in G.R. Case No.264 of 2000 (T.R. Case No. 69 of 2001) has been upheld. 

2. The prosecution case in brief is that on 16.12.2000 at about 9.00 P.M one Madhu Ghivela, the informant, along with three others were gossiping on the village road. Because of an altercation, the petitioner had bitten the face of the informant brutally as a result of which his he had sustained bleeding injury in his lower lip and he had lost one tooth. On basis of such allegation, the police registered the case. After completion of investigation, the petitioner stood charged for the offence punishable under Sections 324/325 of the IPC and was put to trial.

3. To substantiate the charges brought against the petitioner, the prosecution examined seven witnesses and exhibited three documents. P.W.6 was the vital witness, who was the informant as well as the injured. According to him, he and other persons being friends congregated together. During discussion on some subject, the situation worsened and the accused gave a tooth bite, as a result of which he sustained injury on the lower lip and also lost a tooth. This factum of the occurrence had been supported by the other witnesses. P.W.5, who was the doctor, had examined P.W.6 and noticed two external injuries. One was lacerated wound of size 3” x 1” skin deep situated over lower lip and the other was missing of his right lower incised tooth. P.W.5 also opined that injury no.2 was grievous in nature and injury no.1 was simple in nature. Relying upon the aforementioned testimony of the witnesses, the learned trial Court found the petitioner guilty for the offences punishable under Sections 324/325 of the IPC and sentenced him to undergo six months R.I. for the offence under Section 324 of the IPC and one year R.I. and to pay a fine of Rs.500/-, in default, to undergo further R.I. for a period of two months for the offence under Section 325 of the IPC. Both the sentences were to run concurrently.

4. Being aggrieved by the aforementioned judgment of conviction and sentence passed against the petitioner, he filed Criminal Appeal No.45 of 2005 before the learned Additional Sessions Judge, Sonepur. The learned appellate Court vide its judgment and order dated 13.08.2010 rejected the appeal and confirmed the conviction and sentence awarded against the petitioner. 

5. Heard Mr. Satyabrata Mohanty-1, learned Amicus Curiae, Mr. B.K. Dash, learned Counsel appearing for the petitioner and Mr. S.R. Roul, learned Additional Standing Counsel.

6. The petitioner faced trial for the offence under Sections 324/325 of the IPC in the Court of learned S.D.J.M., Sonepur in G.R. Case No.264 of 2000. After conclusion of trial, the petitioner was convicted thereunder and sentenced to undergo R.I. for a period of six months on the first count and to undergo R.I. for a period of one year and to pay a fine of Rs.500/-, in default, to undergo further R.I. for a period of two months in the second count vide judgment and order dated 07.10.2005. Being dissatisfied with the said judgment and order, the convict/ petitioner had preferred Criminal Appeal unsuccessfully. Therefore, the present revision petition has been filed. 

7. Mr. Mohanty, learned Amicus Curiae submitted that the evidence of the prosecution witnesses suffer from major contradictions. When the petitioner was convicted under Section 325 of the IPC, which was a higher offence, he should not have been convicted for the offence punishable under Section 324 of the IPC. But the learned trial Court without carefully scrutinizing the evidence on record convicted the petitioner for offence punishable under Section 324 of the