Judgment :- Oral Judgment: 1. By means of this Criminal Appeal, the appellant/convict questions the validity, legality and correctness of the judgment and order dated 19.6.2008 passed by learned Sessions Judge, Gadchiroli in Sessions Trial No. 94/2003, whereby the appellant was found guilty for offence punishable under section 324 of the Indian Penal Code (in short “IPC”) and sentenced to suffer R.I. for a period of three years with fine in the sum of Rs. 5,000/-, in default, to suffer simple imprisonment for the period of six months. It was further directed that if the amount of fine is realized, it shall be payable to first informant-Shalu (PW 1), by way of compensation, after the period of appeal is over. 2. The facts of the prosecution case in brief are: That the appellant Khushal owned a house at Armori (Shegaon Tola) Dist.Gadchiroli. He resided with his wife Chhaya and children. He lad let his one of the houses to Purushottam Zade (deceased), on a monthly rent of Rs. 250/-. Purushottam resided with his wife Shalu (PW 1) and children. Further, according to prosecution, there was a quarrel between the appellant Khushal and his wife Chhaya prior to the date of incident. Khushal had ran with the screwdriver to assault Chhaya; but Shalu (PW 1) came to her rescue. The appellant did not like this intervention by Shalu (PW 1) in the quarrel between him and his wife. He enraged so much so that he abused Shalu and warned her to vacate the house. It is the case of the prosecution that on 30th May 2003 in the evening, Khushal had abused his wife Chhaya and asked Shalu to vacate the house with her belongings at about 9.30 p.m. When Purushottam (deceased) came back to his house, Khushal abused him also. Purushottam had suggested Khushal not to raise quarrel with his wife and asked Khushal whether he was in arrears of rent. Khushal, then came with a wooden plank and gave a blow on the head of Purushottam. In the result, Purushottam had suffered head injury. He was taken for medical treatment at Gadchiroli; but according to prosecution, he had succumbed to his injuries. He was declared dead at Rural Hospital, Armori. Shalu (PW 1) lodged FIR (Exh. 38) at Armori Police Station against appellant the Khushal as an assailant. In the result, Purushottam had suffered head injury. He was taken for medical treatment at Gadchiroli; but according to prosecution, he had succumbed to his injuries. He was declared dead at Rural Hospital, Armori. Shalu (PW 1) lodged FIR (Exh. 38) at Armori Police Station against appellant the Khushal as an assailant. The offence was registered as Crime No.53/2003 punishable under section 302 IPC against appellant Khushal Janjalkar. The Investigating Officer had held inquest over the dead body of of Purushottam at Rural Hospital Armori, visited the spot, drew Panchnama (Exh.49). Postmortem examination was conducted by Dr. D V Satai, on 31.5.2003 upon requisition from Investigating Officer. In the course of investigation, appellant-Khushal was arrested under Panchanama (Exh.42); blood stained clothes of deceased Purushottam were also seized at Panchanama Exh. 44. It is also the case of the prosecution that during the course of investigation, Khushal had made a statement pursuant to which wooden plank was discovered under Panchanama (Exhs. 46 and 47). 3. After completion of investigation, the accused were charge-sheeted before Judicial Magistrate, First Class Armori, who committed the case to the Court of Sessions at Gadchiroli. The charge was framed against the accused on 12.11.2007 under section 302 IPC read with section 109 of the IPC. Both the accused had pleaded not guilty and claimed trial. 4. Prosecution had examined a total of six witnesses in order to prove the case. The defence of the accused was of total denial claiming that they were falsely implicated. 5. The learned trial Court acquitted the appellant of an offence u/s 302 IPC; however, found him guilty for offence punishable under section 324 of the IPC and convicted him as noted supra. 6. Learned Advocate for the appellant in support of the appeal submitted that the prosecution has failed to lead any medical evidence and the evidence which was led before the trial Court was not sufficient enough to hold the appellant guilty for an offence punishable under section 324 IPC. 6. Learned Advocate for the appellant in support of the appeal submitted that the prosecution has failed to lead any medical evidence and the evidence which was led before the trial Court was not sufficient enough to hold the appellant guilty for an offence punishable under section 324 IPC. Learned Advocate for the appellant argued that it was necessary for the prosecution to prove beyond reasonable doubt that, (i) the accused by his act caused injury on the head of Purushottam (deceased); (ii) that the accused did such an act intentionally or with knowledge that it would cause pain etc.; (iii) it was unprovoked; and, (iv) that the accused had caused it by means of an instrument which used as a weapon which is likely to cause death. 7. Per contra, learned APP submitted that the trial Court did consider the evidence led by the prosecution in its totality and found the appellant guilty under section 324 of the IPC instead of section 302 of the IPC. Learned APP, therefore, supported the impugned judgment and order. 8. In the light of the above submissions and perusing the evidence on record, it does appear that wife of deceased Purushottam who lodged FIR in respect of the incident, deposed as PW 1 before the trial Court. According to her, appellant-Khushal had beaten his wife Chhaya and was running after her with a screwdriver. Chhaya was shouting for help. When she tried to intervene, Khushal getting enraged to the hilt, had abused her in an abusive language. He had threatened Shalu to vacate the house at once. The appellant had also put off electricity supply in the evening, abused Shalu and her husband telling them to vacate the house. After Purushottam (husband of Shalu) came back to the house, he had told Khushal that within eight days of getting another room, he would vacate the house. At that time, one Ashok had came and give 2/3 slaps to her husband, instigating Khushal not to spare Purushottam (deceased). Thereafter, Khushal had brought a wooden plank and struck on the head of her husband who had fell on the ground and became unconscious. He was taken by a Jeep to Rural Hospital, Armori. Unfortunately her husband had succumbed to his injuries. Shalu (PW 1) denied that her husband had raised a quarrel with Khushal because he had disconnected electricity supply. He was taken by a Jeep to Rural Hospital, Armori. Unfortunately her husband had succumbed to his injuries. Shalu (PW 1) denied that her husband had raised a quarrel with Khushal because he had disconnected electricity supply. Her evidence as to the incident remained unshaken in her cross-examination. Kishor Taksande (PW 2) was also examined by the prosecution regarding the incident. It also appears from his evidence that Khushal (appellant) had hit on the head of Purushottam with a wooden plank. Purushottam was taken to Hospital but he had succumbed to his injuries. The evidence of Kishor (PW 2) corroborated the evidence of Shalu (PW 1). The prosecution, for the reasons best known to it, did not examine the Doctor who had issued injury certificate as also the Doctor who had performed postmortem examination on Purushottam. One Panch witness Anil Somankar was examined in order to establish the fact that stick was discovered from the house of appellant Khushal in consequence of statement recorded under panchnama (Exh.46). The stick was discovered under Seizure memo Exh.47. The evidence of PW 4 remained unchallenged. In the absence of evidence to prove homicidal death beyond reasonable doubt, learned Judge did consider the settled legal principles before arriving at a conclusion with reference to the evidence on record that the appellant was guilty of offence punishable under section 324 of the IPC, in the facts and circumstances of the case. Considering the evidence on record as also ingredients required for proof of voluntarily causing hurt, it is apparent to mention that the prosecution did not lead medical evidence about the gravity of injury sustained by Purushottam (deceased). No evidence was led by the prosecution to the effect that dangerous weapon was used so as to cause hurt by the appellant. According to the evidence led by the prosecution, the stick was discovered in the course of evidence; while witnesses deposed about wooden plank used by appellant-Khushal. No evidence is forthcoming from even Investigating officer as to whether weapon discovered in the course of investigation was dangerous or not. Panch witness PW 4-Anil Mahadeo Somankar also was not questioned about the length and dimension of the stick discovered from the heap of firewood by the side of house of Khushal. No evidence is forthcoming from even Investigating officer as to whether weapon discovered in the course of investigation was dangerous or not. Panch witness PW 4-Anil Mahadeo Somankar also was not questioned about the length and dimension of the stick discovered from the heap of firewood by the side of house of Khushal. Under these circumstances, the submissions advanced on behalf of the learned Advocate for the appellant that the offence would, at the most, fall under section 323 of the IPC must be accepted as the prosecution has proved by evidence led before the trial Court that the appellant Khushal by his act caused bodily pain to Purushottam and secondly Khushal did such an act with knowledge that it would cause hurt to Purushottam. Whoever causes bodily pain or injury to any person is said to have caused hurt within the meaning of Section 319 of the IPC. No evidence is led as to whether it was simple or grievous hurt and furthermore no evidence was led regarding the weapon of offence as to whether it was dangerous. For all these reasons, the ends of justice would be met if conviction is altered to Section 323 of the IPC instead of Section 324 of the IPC, with retention of sentence of rigorous imprisonment for the period already undergone. The sentence as to payment of amount of fine shall remain the same as ordered by the trial Court. 9. In the result, Appeal is allowed to the aforesaid extent. Order accordingly.