N. K. BATABYAL, J. ( 1 ) THIS appeal is directed against the judgment and order of conviction and sentence passed by the learned Addl. Sessions Judge, 2nd Court. Bankura in Session Case No. 2 of December, 1984 (ST. No. 2 of Feb. , 1985 ). The learned Judge by the impugned order sentenced the appellant (Dwijabar alias Dwijapada now deceased) to suffer R. I. for four years and pay a fine of Rs. 200/- i. d. to suffer R. I. for one month more for an offence under section 326 IPC. ( 2 ) THE prosecution case, in short, is that on 27. 6. 83 at about 10. 00 a. m. over some quarrel, the sons of appellant Dwijabar were abusing Amarendra Palit and his sons in filthy language. Tapan S/o Amarendra protested when the appellant and his son, Pradip came out with an iron crow-bar and the appellant threw the spear which struck Tapan at the upper part of his abdomen causing a bleeding injury. Amarendra rushed out of his house and held Dwijabar and detained him till the arrival or police from the local P. S. On the complaint or Smt. Basanti Palit W/o. Sri Amarendra, Onda P. S. case No. 7 dated 27. 6. 83 was started and it culminated in a charge-sheet undersection 326 and 307/34 IPC against the appellant and his son, Pradip; charge was framed undersection 307/ 34 IPC. against both and they pleaded not guilty thereto. The defence plea was that Amarendra brought out Dwijabar by pulling his hair from his house and started beating him with a lathi. The sons of Dwijabar came out on seeing this. At that time, Tapan and Tarun, sons of Amarendra came out with a crow-bar and a spear. Pradip tried to snatch away spear from Tapan and in the push and pull, the spear accidentally went into the abdomen of Tapan. ( 3 ) THE learned trial Judge has been pleased to hold after trial that the appellant voluntarily caused grievous hurt Tapan by means of a spear and as such he committed the offence undersection 326 IPC but not with the intention of causing his death. The learned Judge further held that the other accused person was entitled to an order of acquittal. The learned Judge further held that the other accused person was entitled to an order of acquittal. The learned Judge has accordingly convicted the appellant for an offence under section 326 IPC and has sentenced him to suffer R. I. for four years and to pay a fine of Rs. 200/- i. d. to suffer R. I. for one month more. ( 4 ) BEING aggrieved by and dissatisfied with the judgment and order of conviction and sentence passed by the learned Judge, the appellant has come before this court. It is to be noted the during the pendency of the appeal, the appellant has died. His son. Pradip filed and application under section 394 (2) Cr. PC for leave to continue the appeal, Leave has been granted as prayed for. ( 5 ) MR, Kishore Mukherjee, learned senior Advocate, appearing on behalf of the appellant has submitted that the impugned order of conviction and sentence cannot be sustained on the twin grounds inter alia, that after framing a charge under section 307/24 IPC, the appellant can't be convicted for an offence under section 326 IPC, and that the prosecution side failed to discharge its obligation by not explaining the injuries sustained by the appellant. Besides these two points, the learned lawyer has also submitted that the learned Judge has failed to properly appreciate the facts of the case and has thereby come to an erroneous decision of facts. ( 6 ) MR. Swapan Mallick, learned State advocate has seriously controverted the points raised by Mr. Mukherjee. According to the learned State advocate, the impugned judgment and order of conviction does not suffer from any infirmity and should be confirmed. ( 7 ) MR. Mukherjee, learned advocate in course of his submissions has drown the attention of this Court of Rajasthan v. Madho ( AIR 1991 SC 1065 ). In that case the High Court on a reappreciation of the evidence came to the conclusion that the prosecution witnesses were guilty of shifting their stand and failed to explain the serious injuries on two respondents. The apex court held, the fact remains that both the respondents had sustained serious injuries, Krishna mainly on the skull whereas Madho on the skull as well as the scapular region. The apex court held, the fact remains that both the respondents had sustained serious injuries, Krishna mainly on the skull whereas Madho on the skull as well as the scapular region. If the prosecution witnesses shy away from the reality and do not explain the injuries caused to the respondents herein it casts a doubt on the genesis of the prosecution case since the evidence shows that these injuries were sustained in the course of the same incident. It gives the impression that the witnesses are suppressing some part of the incident. The High Court was therefore of the opinion that having regard to the fact that they have failed to explain the injuries sustained by the two respondents in the course of the same transaction. the respondents were entitled to the benefit of the doubt as it was hazardous to place implicit reliance on the testimony of the injured witness. ( 8 ) THE next case relied upon by Mr. Mukhetjee is Mohar Rai and Anr. v. The State of Bihar 1969 (1) SCJ 1. The apex court in that case held "the trial court as well as the High Court ignored the significance of the injuries found on the appellants. Mohar Rai had sustained as many as 13 injuries and Bharat Rai 14. We get it from the evidence of P. W. 15 that the noticed injuries on the person of Mohar Rai when he was produced before him immediately after the occurrence. Therefore, the version of the appellants that they sustained injuries at the time of the occurrence is highly probabilised. Under the circumstances, the prosecution had a duty to explain those injuries. . . . In our judgment the failure of the prosecution to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the incident, is not true or at any rate, wholly true. Further those injuries probabilise the plea taken by the appellants". ( 9 ) IN the case cited above, the nature of the injuries is not specifically mentioned in the report. But from a perusal of the reported decision it appears that shots were fired from a revolver. ( 10 ) MR. Mukherjee, teamed advocate has submitted that to the case at hand Dr. Pattanayak (P. W. 14) has stated that he examined Dwijapada Halder (S/o. Late Jagmohan Halder) of Onda, Bankura on 27. 6. But from a perusal of the reported decision it appears that shots were fired from a revolver. ( 10 ) MR. Mukherjee, teamed advocate has submitted that to the case at hand Dr. Pattanayak (P. W. 14) has stated that he examined Dwijapada Halder (S/o. Late Jagmohan Halder) of Onda, Bankura on 27. 6. 83 at 1-30 p. m. and found the following injuries :1)one lacerated wound on the right thumb skin deep and 11/2" long. 2)defused tenderness over the chest, no internal injury detected, 3)abrasion over the right side of the forehead, size 1"x1/2"; 4)one abrasion over the left side of the forehead z " x z 5)one abrasion over the anterior surface of the right knee-joint size 1/2"x1/2". According to the Doctor, the injuries were simple in nature. ( 11 ) MR. Mukherjee, learned advocate on the basis of the fact that the prosecution side has not explained the injury on the appellant which was sustained on the same day and at the time of the occurrence has urged upon the court that in view of the clear principles laid down in the cases cited by him, the appellant is entitled to the benefit of doubt. Mr. Swapan Mallick, learned State-advocate has submitted that there is no dispute about the proposition of law as stated by Mr. Mukherjee, learned advocate but the difficulty is that the presumption that the prosecution witnesses have not disclosed the whole story in view of lack of explanation for the injuries sustained by the appellant at the time of occurrence can be raised only if the injuries are serious. There is no proposition of law that such a presumption will be raised whenever there is an injury on the person of the accused sustained at the time of occurrence. There is no proposition of law that such a presumption will be raised whenever there is an injury on the person of the accused sustained at the time of occurrence. ( 12 ) AFTER considering the submissions of the learned lawyers on the point and the materials on record and the circumstances of the case, it appears to this court that the correct principle of appreciation of evidence in such a case being laid down in Jagadish v. State ( AIR 1979 SC 1010 ) that where serious injuries are found on the person of the accused, if becomes obligatory on the prosecution to explain the injuries so as to satisfy the court as too the circumstances under which the occurrence took place, no presumption that the prosecution side has not rendered the true version of the occurrence cannot be raised. ( 13 ) IN earlier cases, the apex court took the view that there is no hard and fast rule that simply because the prosecution witnesses did not explain the injuries on the person of the accused, their entire evidence should be discarded. (Bhagwan Tara v. State, AIR 1974 SC 21 ). But in Laxmi Singh v. State, (AIR 176 SC 2263), it was held, the omission on the part of the prosecution to explain the injuries on the person of the accused assumed much greater importance when the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. There may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. The principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested so probable, consistent and credit-worthy, that it far out-weighs the effect of the omission on the part of the prosecution to explain the injuries. ( 14 ) BUT in Jagadish v. State (supra), it was clearly spelt out that the Iiability, of the prosecution to explain the injuries on the accused arises in case of serious injuries. In view of the discussions made above, the contention of Mr. Mukherjee, learned advocate, cannot be accepted as laying down the correct principle of law. Hence, his contention, on this score, is rejected. In view of the discussions made above, the contention of Mr. Mukherjee, learned advocate, cannot be accepted as laying down the correct principle of law. Hence, his contention, on this score, is rejected. ( 15 ) THE next point urged by Mr. Kishor Mukherjee, learned advocate for the appellant is that in the case, the learned trial Judge framed a charge under section 307/34 of the IPC but actually sentenced the appellant under section 326 IPC for which no charge was framed. According to him, the offence under section 326 IPC is not a minor offence in relation to an offence undersectlon 307/24 IPC under section 222 (2) of the Crpc. In support of his contention. he has cited Nanak Chand v. State of Punjab ( AIR 1955 SC 274 ). In that case it was held a charge for a substantive offence under section 302 IPC or section 325 IPC is a distinct and separate offence from that under section 302 read with section 149 or section 325 read with section 149. A person charged with an offence read with section 149 cannot be convicted of the substantive offence without a specific charge being framed as required by the Crpc. ( 16 ) HE has next referred to the decision of the Privy Council in Begu v. The King Emperor (30 Calwn 581 ). In that case, it was held, under section 237 read with section 236 of the Crpc. 1898, a man may be convicted of an offence though there has been no charge in respect of it, if the evidence is such as to establish a charge that might have been made. In that case, where several persons were charged under section 302 IPC and the evidence went to show that several persons had set upon the deceased in a field, and after he had been killed, his corpse was wrapped up in a cloth, placed on a horse and in that way removed, and as regards some of the accused, the Judge was of opinion that the evidence did not sufficiently or definitely prove that they were present at and had taken part in the murder, but, on other hand, he convicted each of them of having removed the body and convicted them of the offence. ( 17 ) IT was further held, they were properly convicted under section 237 of the Crpc (1898) or that offence though they were not formally charged with it. ( 18 ) THE learned advocate has also referred to Umed Sheik v. The King Emperor. 30 Calwn 816 (DB) which relied upon the principles laid down in Begu's case (supra ). ( 19 ) THE learned advocate has further referred to another Privy Council decision in Thakur Shah v. The King Emperor (48 CWN 90 ). In that case, it was held, when 'a' is convicted on a charge of abetting certain named persons in the commission of forgery and on appeal, the conviction of the latter on the forgery charge being set aside, A's conviction for abetment is nevertheless maintained in the view that there had been a forgery which he had abetted, while of the other two, one is also convicted of abetment as; (I)alteration of the charge against A to abetment of forgery by a person or persons unknown. though not permissible under the English Law is within the power of amendment given to the Appellate Court under section 423 (i) (d) of the Crpc (1898) (ii)conviction on the amended charge without a new trial is valid, if it does no appear that the accused had no notice of the proved facts or was misled by the form of the charge or that he could make any fresh case or give any fresh evidence: (iii)one of the persons originally charged with the substantive evidence being fond guilty of abetment by the appellate court, conviction of 'a' of abetment was also justified under explanation 4 to section 108 of the IPC, as for abetment of that abetment. ( 20 ) MR. Mukherjee, learned advocate, has submitted that his only grievance against the judgment on this point may not be misunderstood as he has never meant to say that an accused can't be convicted of an offence for which he has not been charged. He has highlighted the point that in case of such conviction the conviction must be coming within the ambit of the relevant sections of the Crpc In the instant case, the conviction is coming neither undersection 221 (2) nor under section 222 (2) of the Crpc Therefore, the conviction is bad. ( 21 ) MR. Mallick. He has highlighted the point that in case of such conviction the conviction must be coming within the ambit of the relevant sections of the Crpc In the instant case, the conviction is coming neither undersection 221 (2) nor under section 222 (2) of the Crpc Therefore, the conviction is bad. ( 21 ) MR. Mallick. leamed State-advocate has cited Mairangthem Chaoba Singh v. State of Manipur (1982. Crw 1806) to support of his contention that the offence under section 326 IPC is a minor offence in relation to the offence under section 307 IPC. In that case, the accused persons were charged under section 307/34 IPC and the appellant was separately charged under section. 307 IPC The appellant, Moirangthem Gojendra Singh was convicted under section. 326 IPC. ( 22 ) AFTER due consideration of the submissions made by the learned Lawyer of both sides, it appears that an offence under section 307 IPC is punishable with imprisonment for life or imprisonment for 10 years and fine. The offence under section 326 IPC is punishable with imprisonment for life, or imprisoment for 10 years and fine. In case of a lifeconvict committing an offence under section 307 IPC by causing hurt, the sentence can be death or imprisonment for 10 years and fine. In the Single Bench decision of the Gowhati High Court cited by Mr. Mallick, learned State-advocate the identical question fell for decision. In that decision, some of the cases cited by Mr. Mukherjee, learned lawyer was cited also. After considering all the decisions cited, the learned Judge of Gowhati High Court in Moirangthem's case (supra) held that an accused charged for an offence under section 307 IPC can be sentenced for an offence under section 326 IPC. The first case cited by Mr. Mukherjee, i. e. , Nanak Chandi case (supra) is not a case on the point involved in the case. In Begu's case (supra), the accused were charged for an offence under section 302 IPC but convicted under section 201 IPC. This also comes squarely within the sweep of section 222 (2) Crpc. In the third case cited by Mr. Mukherjee. learned advocate, i. e. , in Thakur Shah's case (supra) the appellant was charged for abetment of forgery but was convicted for abetment of abetment of forgery. This also comes squarely within the sweep of section 222 (2) Crpc. In the third case cited by Mr. Mukherjee. learned advocate, i. e. , in Thakur Shah's case (supra) the appellant was charged for abetment of forgery but was convicted for abetment of abetment of forgery. So the person concerned was charged for abetment of forgery and he was convicted for abetment of abetment. Therefore, he was convicted of the offence under which he was charged. In a Bombay case in Ramchandras case ( 1972 Crlj 938 ). It was, of course, held that an offence under section 326 IPC is not a minor offence in relation to an offence under section 307 IPC. But the apex court of our land in Bejoy v. State, (1952) SCR 202 has held that where, on the facts of a case. It was open to the Sessions Judge to charge the accused alternatively under section 307 and 326 IPC but the charge was under section 307 IPC only. the accused could be convicted under section 326 IPC without a charge under that section. Therefore, the view taken in the Bombay case cannot be considered as laying down the correct proposition of law. The view taken in the Gowhati case (referred to above) is in the right direction as laid down by the apex court in Bejoy's case (supra ). In view of the discussions made above, it cannot be said that the learned trial court misdirected itself or committed any illegality in convicting the appellant under section 326 IPC when the charge was under section 307 IPC. Accordingly, the second contention of Mr. Mukherjee. learned advocate must fall. ( 23 ) THE third contention of Mr. Mukherjee is that the learned court below has failed to correctly appreciated the evidence of the case in the context of the peculiar circumstances and the probabilities of the case. Mr. Mukherjee has submitted that Smt. Basanti (P. W. 1) has stated in her deposition that at the time of occurrence, at first Pradip threw an iron crow-bar at Tapan Palit, the victim. Then the appellant threw a spear (kencha) at Tapan and it struck his abdomen causing bleeding injuries. A hue and cry was raised. The neighbours came, the injured was taken to Onda P. S. and from there to the hospital. Then the appellant threw a spear (kencha) at Tapan and it struck his abdomen causing bleeding injuries. A hue and cry was raised. The neighbours came, the injured was taken to Onda P. S. and from there to the hospital. Her husband took the appellant to the P. S. Tapan Palit (P. W. 3) has slated that Pradip threw the Sabal (Iron crow-bar) at him causing an injury on his thumb. Then the appellant struck him with the kencha on his abdomen causing bleeding injuries. His father who came there chased and caught the appellant. The neighbours came, the Kencha was extricated with his help. Then Police came. It was put to this witness in cross-examination that he had given false evidence as to the occurrence. Amarendra (P. W. 4)) is the father of Tapan. He saw the appellant throwing a Kencha at Tapan and injuring him on the left side of his chest. He ran after the appellant and caught him. At that time neighbours came there ; Smt Bela Patra (P. W. 7) is a common neighbour. Her house is about 30/40 cubits way from the place decision, some of the cases cited by Mr. Mukherjee, learned lawyer was cited also. After considering all the decisions cited, the learned Judge of Gowhati High Court in Moirangthem's case (supra) held that an accused charged for an offence under section 307 IPC can be sentenced for an offence under section 326 IPC. The first case cited by Mr. Mukherjee. i. e. , Nanak Chandi case (supra) is not a case on the point involved in the case. In Begu's case (supra), the accused were charged for an offence under section 302 IPC but convicted under section 201 IPC. This also comes squarely within the sweep of section 222 (2) Crpc. In the third case cited by Mr. Mukherjee, learned advocate, i. e. , in Thakur Shah's case (supra) the appellant was charged for abetment of forgery but was convicted for abetment of abetment of forgery. So the person concerned was charged for abetment of forgery and he was convicted for abetment of abetment. Therefore, he was convicted of the offence under which he was charged. In a Bombay case in Ramchandras case ( 1972 Crlj 938 ). So the person concerned was charged for abetment of forgery and he was convicted for abetment of abetment. Therefore, he was convicted of the offence under which he was charged. In a Bombay case in Ramchandras case ( 1972 Crlj 938 ). It was, of course, held that an offence under section 326 IPC is not a minor offence in relation to an offence under section 307 IPC. But the apex court of our land in Bejoy v. State, (1952) SCR 202 has held that where, on the facts of a case. It was open to the Sessions Judge to charge the accused alternatively under section 307 and 326 IPC but the charge was under section 307 IPC only. the accused could be convicted under section 326 IPC without a charge under that section. Therefore, the view taken in the Bombay case cannot be considered as laying down the correct proposition of law. The view taken in the Gowhati case (referred to above) is in the right direction as laid down by the apex court in Bejoy's case (supra ). In view of the discussions made above, it cannot be said that the learned trial court misdirected itself or committed any illegality in convicting the appellant under section 326 IPC when the charge was under section 307 IPC. Accordingly, the second contention of Mr. Mukherjee. learned advocate must fall. ( 24 ) THE third contention of Mr. Mukherjee is that the learned court below has failed to correctly appreciated the evidence of the case in the context of the peculiar circumstances and the probabilities of the case. Mr. Mukherjee has submitted that Smt. Basanti (P. W. 1) has slated in her deposition that at the time of occurrence, at first Pradlp threw an iron crow-bar at Tapan Palit, the victim. Then the appellant threw a spear (kencha) at Tapan and it struck his abdomen causing bleeding injuries. A hue and cry was raised. The neighbours came, the injured was taken to Onda P. S. and from there to the hospital. Her husband took the appellant to the P. S. Tapan Palit (P. W. 3) has stated that Pradip threw the Sabal (Iron crow-bar) at him causing an injury on his thumb. Then the appellant struck him with the kencha on his abdomen causing bleeding injuries. His father who came there chased and caught the appellant. Her husband took the appellant to the P. S. Tapan Palit (P. W. 3) has stated that Pradip threw the Sabal (Iron crow-bar) at him causing an injury on his thumb. Then the appellant struck him with the kencha on his abdomen causing bleeding injuries. His father who came there chased and caught the appellant. The neighbours came, the Kencha was extricated with his help. Then Police came. It was put to this witness in cross-examination that he had given false evidence as to the occurrence. Amarendra (P. W. 4) is the father of Tapan. He saw the appellant throwing a Kencha at Tapan and injuring him on the left side of his chest. He ran after the appellant and caught him. At that time neighbours came there ; Smt. Bela Patra (P. W. 7) is a common neighbour. Her house is about 30/40 cubits way from the place of occurrence. On hearing a hue and cry, she hurriedly went to the PS. She saw Tapan trying to extricate the Kencha from his body. After sometime police came. She is not an eye-witness to the mounting of attack on the victim. Smt. Bharati Bauri (P. W. 8) has stated that she saw the appellant throwing the Kencha at Tapan Palit at the time of occurrence. ( 25 ) MR. Mukherjee, learned advocate has submitted that in the FIR which was lodged immediately after the occurrence by the mother of the victim who was an eye-witness to the occurrence, it was stated that the appellant jumped upon Tapan to kill him and his son struck Tapan into his Tight abdomen. At that time, Pradip threw a Sabal to Tarun, second son of Basanti (P. W. 1 ). ( 26 ) MR. Mukherjee has further submitted that Dr. Pattanayak (P. W. 14 ). who was attached as M. O. , Onda, P. H. C. , on the date of occurrence examined injured Tapan at about 11-30 a. m. on 27. 5. 83 with bleeding injuries. The patient stated before him that he was assaulted by Pradip S/o, Dwijapada by a Kencha. On the same date, the patient was taken to Bankura Sammilain Medical College Hospital from the P. H. C. There Dr. Dayamoy Chatterjee (P. W. 22) examined the victim. Before him, the victim stated that he was assaulted by Dwijapada with a Kencha. The patient stated before him that he was assaulted by Pradip S/o, Dwijapada by a Kencha. On the same date, the patient was taken to Bankura Sammilain Medical College Hospital from the P. H. C. There Dr. Dayamoy Chatterjee (P. W. 22) examined the victim. Before him, the victim stated that he was assaulted by Dwijapada with a Kencha. ( 27 ) ACCORDING to the learned advocate for the appellant, the earliest version of the role of the appellant is not tallying with the role ascribed to him in evidence. Moreover, the history of the injury as given by the victim himself to the doctor at the Onda P. H. C. shows that the appellant did not assault the victim with the Kencha. In the circumstances, the prosecution story about the assault by Kencha on Tapan is highly suspect. The appellant is entitled to get the benefit of doubt in the circumstances. ( 28 ) BASANTI (P. W. 1) has stated in her substantive deposition that the appellant threw a Kencha towards Tapan and it struck him on the abdomen. In the FIR she stated that the appellant jumped upon Tapan to kill him. The appellant had a Kencha which was given to him by his son, Pradip. The son struck Tapan into his right abdomen. But she has not stated that the son struck with Kencha. Other eye-witnesses to the occurrences, namely. Amarendra (P. W. 4), Kumarl Dipu Palit (P. W. 5) and the victim himself (P. W. 3) have stated that the appellant huried a Kencha towards Tapan (P. W. 2) and it caused a bleeding injury on his abdomen. The medical evidence corroborates the injuries. The neighbours Bharati (PW8) who were attracted to the P. O. by the hue and cry did not see the actual assault but saw the appellant at the place and Tapan (P. W. 2) with bleeding injuries. The victim (P. W. 2) has stated that Pradip came with a Sabal and a Kencha and gave the Kencha to the appellant and aimed the Sabal towards him and the appellant directed the Kencha towards him causing a bleeding injury to the chest. He showed the place as below the left nipple. This witness on the same day stated before the doctor at Onda P. H. C. (P. W. 14) that Pradip assaulted him with a Kencha. He showed the place as below the left nipple. This witness on the same day stated before the doctor at Onda P. H. C. (P. W. 14) that Pradip assaulted him with a Kencha. But the same witness on the same day told the doctor at B. S. M. C. Hospital (P. W. 22) that the appellant caused the injury with the Kencha. ( 29 ) THUS from a consideration of the materials on record it appears that there is no contradiction between the version as given in the FIR. and as given by P. W. l. The son of the appellant in the FIR struck Tapan on the right side of the chest but the injury with spear was caused on left side. It was not stated in the FIR that the son of the appellant caused any injury with the Kencha. With regard to the attack by the appellant on Tapan (P. W. 3) with kencha, all the eye witnesses to the occurrence have supported the prosecution version. The victim (P. W. 3) himself has stated before P. W. 14 at Onda P. H. C. that Pradip struck him with a Kencha but he stated before the doctor (P. W. 22) at the Medical College at Bankura on that very day that the appellant caused the injury with the Kencha. The learned trial Judge after considering the evidence the circumstances and the probabilities of the case has come to the finding that the appellant voluntarily caused grievous hurt to the victim in the manner as laid down under section 326 I. P. C. In the view of the discussions of the facts and circumstances and the probabilities of the case and in view of the legal position as considered above, this court finds no reason to interfere with the impugned judgment or order of conviction. It is accordingly affirmed, the appeal falls and is dismissed. Appeal dismissed