The conviction under Section 307 was altered to Section 324 due to the simplicity of injuries and insufficient medical evidence, with allowance for release under the Probation of Offenders Act.

JUDGMENT :

Biraja Prasanna Satapathy, J.

1. This Revision has been filed challenging the order of conviction and sentence passed by the learned Assistant Sessions Judge, Chhatrapur on 19.01.1994 in Sessions Case No.41 of 1991, further confirmed by the learned Additional Sessions Judge, Berhampur vide his judgment dt.07.06.1995 passed in Crl. Appeal No.85 of 1994. Petitioner was convicted to undergo R.I for 3(three) years and to pay a fine of Rs.1,000/-, in default, R.I for 1(one) month for the offence under Section 307 of the Indian Penal Code and R.I for 1(one) month of the offence under Section 341 of the Indian Penal Code.

2. The prosecution story as narrated in the F.I.R is that the injured, a student of Class-V along with 3(three) of his friends had gone to collect Bambo on the eve of the Ganesh Puja celebration to the house of one Kama Ghosh. While they were outing, the present Petitioner was coming from the other side in a cycle. It is contended that without any reason and basis, the accused-Petitioner stopped at the spot, where the students had gathered and all on sudden by snatching away the Kati from the hand of the injured, assaulted him on his neck and shoulder, for which he sustained injury.

2.1. Petitioner thereafter, left the place with the said weapon of offence and the same was witnessed by the Gram Rakshi, P.W.1. The injured was rescued by P.W.5 and his father P.W.4 and thereafter taken to the hospital. As per the advise of the doctor, the FIR was lodged giving rise to G.R. Case No.333 of 1991 in the file of learned J.M.F.C, Khallikote, arising out of Kodala P.S. Case No.157 of 1991.

3. Learned counsel appearing for the Petitioner contended that Petitioner faced the trial before the learned Asst. Sessions Judge, Chhatrapur after being charged for the offence under Section 307 /341 of the Indian Penal Code. It is contended that the prosecution in order to prove its charges against the Petitioner examined 7 nos. of P.Ws which includes P.W.2 as the injured, P.W.6 as the doctor, who examined the injured and P.W.7 as the I.O. P.W.3 is the friend, who had accompanied the injured and P.W.4 is the informant and father of the injured. P.W.1 is an independent witness and P.W.5 is a post-occurrence witness, who had disclosed the incident. The Defence also examined 2(two) nos. of witnesses.

3.1. Learned counsel appearing for the Petitioner while assailing the order of conviction and sentence so passed by the learned Asst. Sessions Judge, further confirmed by the learned Addl. Sessions Judge, contended that taking into account the statement of the injured and statement of the doctor, P.W.6, no case under Section 307 of the Indian Penal Code at all is made out.

3.2. It is contended that both the injuries so found on the injured since are simple in nature and no such medical report having been exhibited in course of the trial, there was no occasion to convict the Petitioner for the offence under Section 307 of the Indian Penal Code.

3.3. It is also contended that even though P.Ws.1 & 3 are the independent witnesses, but they never supported the prosecution case. Since prosecution witnesses never supported the prosecution case, medical report of the injured was never exhibited and both the injuries sustained by the injured being simple in nature, Petitioner could not have been convicted and sentenced for the offence under Section 307 of the I.P.C and at best, basing on the statement of the P.Ws, Petitioner could have been convicted for the offence under Section 324 of the I.P.C.

3.4. It is also contended that the Petitioner in course of the trial, remained in custody for around 1(one) month and 5(five) days and taking int