The main legal point established is that the prosecution must prove the intention to cause grievous hurt as per the provisions of the IPC, and the court has the power to convert charges under Section 222 of the Cr.P.C.

JUDGMENT

Heard Mr. S. Sarkar, learned counsel appearing for the petitioner as well as Mr. R.C. Debnath, learned Addl. Public Prosecutor appearing for the state. This is a petition filed under Section 397 read with Section401 of the Cr.P.C. against the judgment and order dated 18.01.2008 passed by the Addl. Sessions Judge, West Tripura, Khowai in Criminal Appeal No. 7(4) of 2007, whereby the judgment and order of conviction and sentence dated 23.11.2007, delivered in G.R. No. 12/2005 by the Judicial Magistrate, Khowai, West Tripura has been affirmed.

2. The petitioner, by the said judgment and order dated 23.11.2007 has been convicted under Section 325of the IPC and sentenced to suffer two years RI and to pay fine of ` 5,000, in default thereof to suffer RI for three more months.

3. A written ejahar was filed by one Manindra Das (P.W. 1), disclosing that his son, namely Abinash Das (P.W. 7) while returning home had some altercation with the petitioner, but at the intervention of the people from that neighborhood they were separated and asked to leave that place. But, immediately thereafter the petitioner had reappeared in that place of occurrence and by a wooden shaft he had struck a blow on the region near the lower abdomen of the victim (P.W. 7), causing grievous injury. Thereafter, P.W. 7 was admitted in the hospital for about ten days for recuperation.

4. Based on the said ejahar, Teliamura P.S. Case No. 06/2005 under Sections 341/325/34 of the IPC was registered and taken up for investigation. After investigation, the charge-sheet was filed against the petitioner under Sections 341/325 of the IPC and the charge was accordingly framed, to which the petitioner pleaded complete innocence and claimed to face the trial.

5. In order to substantiate the charge, the prosecution adduced as many as eleven witnesses including the Investigating Officer, namely Satyabrata Gupta (P.W. 10), the victim, Abinash Das (P.W. 7) and the informant, namely Manindra Das (P.W. 1).

6. At the outset, Mr. S. Sarkar, learned counsel appearing for the petitioner has submitted that, the prosecution by dint of the oral testimonies of P.Ws. 1, 5, 6 and 7, has proved the occurrence of hurt received by P.W. 7 for assault of the petitioner and his treatment in the hospital for ten days. Mr. Sarkar, learned counsel has questioned the finding that the said assault was intended voluntarily to cause grievous hurt as defined in Section 322 of the IPC. According to Mr. Sarkar, learned counsel, from the evidence it can be gathered that the assault was intended to cause grievous hurt and as such no conviction under Section 325 of the IPC can be returned. Apart that, Mr. Sarkar, learned counsel has submitted that on a grave provocation and without any previous enmity the occurrence had taken place, but that aspect of the matter was not considered by the courts below while imposing the sentence. That apart, Mr. Sarkar, learned counsel has continued to submit that the petitioner was entitled to the benefit of Section 360 of the Cr.P.C., as there is no record as regards his criminal antecedent.

7. From the other side, Mr. R.C. Debnath, learned Addl. Public Prosecutor appearing for the state has submitted that there cannot be any direct evidence as regards the intention, but if the evidence as a whole is considered, the intention could clearly be gathered. He has referred to the injury report, where it has been recorded that the injury is of grievous nature in the abdomen.

8. For appreciation of the submissions made by the learned counsel for the parties, this court has meticulously surveyed the oral testimonies of P.Ws. 1, 5, 6 and 7. It has surfaced that the prosecution has established that the petitioner had assaulted P.W. 7 and caused that injury as referred. But, it also appears that the injury was a simple injury and except P.W. 7 no other witness has come forward to say that the petitioner had delivered several blows.

9. P.W. 7 has stated that the petitio