Judgment 1. The Appellant/Accused has preferred the instant Criminal Appeal before this Court as against the Judgment of conviction and sentence passed in S.C.No.45 of 2008 dated 25.09.2008 by the learned Additional District and Sessions Judge (Fast Track Court), Ariyalur, Perambalur District. 2. The Appellant/Accused was found guilty by the trial Court, in respect of an offence under Section 341 of Indian Penal Code and he was imposed with a fine of Rs.500/-, in default of payment of fine he was directed to undergo 15 days of Simple Imprisonment. 3. In regard to an offence under Section 326 of IPC was concerned, the Appellant/Accused was found guilty by the trial Court and he was imposed with the punishment of Rigorous Imprisonment for a period of one year and further directed to pay a fine of Rs.2,000/-, in default of payment of fine, he was directed to undergo further Simple Imprisonment of three months. In fact, the trial Court directed the payment of fine amount of Rs.2,000/-, soon after the same being remitted by the Appellant/Accused, to the victim, namely, PW.1 as compensation. 4. The trial Court acquitted the Appellant/Accused in respect of an offence under Section 294(b) of IPC. 5. The case of the Prosecution is that PW.1 – Balakrishnan was working under the Appellant/Accused, namely, his son-in-law and later because of the ill feeling, he remained silent and ten days before the occurrence, PW.1 informed the Witness No.6 Dharmalingam (PW.4) that for the work turned out by him, he demanded money for which the Appellant/Accused informed that money could not be paid and that the Appellant/Accused informed him for the food he had taken, it got adjusted and refused to pay the amount. Based on this, out of prior enmity on 06.03.2007, at about 7.30 p.m. at Edayathankudi Bazaar Street, Witness No.1 (PW.1) took tea at Subramaniam Shop and came out and at that point the Appellant/Accused by uttering the following words:- “TAMIL” and with the sickle in his hand cut PW.1 on his right shoulder, right forearm, right chest, right hand, left forearm, front right hand, etc., frequently and caused grievous injury and hence charge sheet was laid against the Appellant/Accused under Sections 341, 294(b) and 307 of IPC by Keezhapalur Inspector of Police. 6. 6. On the basis of the accusation levelled against the Appellant/Accused, the trial Court framed necessary charges for the offences under Sections 341, 294(b) and 307 of IPC and they were read over and explained to him. He denied the charges framed against him and demanded to take trial in the case. 7. Before the trial Court, on behalf of the Prosecution, witnesses PW.1 to PW.9 were examined and Exs.P1 to P6 were marked. Further M.O.1 to M.O.5 were marked. On behalf of the Respondent/Accused, no one was examined as witness and no documents and Material Objects were marked. 8. According to the Learned Counsel for the Appellant, the trial Court had committed an error in convicting the Appellant/Accused under Section 341 and 326 of IPC. Further, it is the plea of the Learned Counsel for the Appellant that the trial Court should have found that the evidence of PW.1 was not trustworthy and should have held that he was a man of turn coat. Moreover, the trial Court should have found that he was not a reliable witness since his evidence was much of exaggerations, embellishments, material omissions and contradictions. 9. Advancing his arguments, Learned Counsel for the Appellant contends that witnesses PWs.2, 3 and 5 turned hostile in a wholesale fashion and even though PW.4 was not treated as hostile witness, yet in chief examination he deposed that the police had not enquired him. 10. In effect the stand taken on behalf of the Appellant is that the trial Court should have held that the evidence of PW.1 was neither corroborated nor trustworthy. 11. Expatiating his submission, the Learned Counsel for the Appellant proceeds to project an argument that the trial Court ought to have disbelieved the evidence of PW.1 because of the simple reason that PW.1 deposed before the trial Court that he sustained injuries on his right hand. But the Doctors PW.6 and PW.7 had deposed that PW.1 had grievous injury on his left hand based on X-ray. In fact, no injury was found on the left hand of PW.1 and in this regard, the trial Court had ignored this vital fact on filmsy ground. 12. But the Doctors PW.6 and PW.7 had deposed that PW.1 had grievous injury on his left hand based on X-ray. In fact, no injury was found on the left hand of PW.1 and in this regard, the trial Court had ignored this vital fact on filmsy ground. 12. The Learned Counsel for the Appellant refers to the evidence of PW.1 (in cross examination) that he had deposed to the effect that at the time when he was examined by the police, he was not conscious and therefore, he had not known as to what was written by them and by placing reliance on this evidence, the Learned Counsel for the Appellant emphatically takes a plea that there is no complaint at all in the present case and that apart, there was inordinate delay in preferring the complaint, which was not at all explained by any one of the Prosecution witnesses. 13. The Learned Counsel for the Appellant brings it to the notice of this Court that Section 161 Cr.P.C. statements were sent with a delay of 3 months and the evidence of PW.9 (Investigating Officer) was to the effect that he had sent all the materials to the Court immediately after his investigation was over. As such on fact, there is contradiction/discrepancy in regard to the evidence of PW.9 (Investigating Officer) and this material fact was not taken into account by the trial Court. 14. Apart from the above, Learned Counsel for the Appellant submits that the trial Court should have held that the telegraphic message of PW.4 was suppressed by the Prosecution because of the reason that the Station House Officer -PW.8 deposed that he had not received any phone call on the date of occurrence. 15. The main grievance projected on the side of the Appellant is that in the present case, knife was not recovered and the non-recovery of the said weapon is fatal to the case of the Prosecution. At this stage, the Learned Counsel for the Appellant cites the decision of the Hon'ble Supreme Court in 2013 AIR (SCW) 5064 between “Sadananda Mondal and State of West Bengal“ whereby and whereunder in paragraphs 11 and 13, it is observed as under:- “11. Admittedly, there was no recovery of the alleged weapon used in the incident. At this stage, the Learned Counsel for the Appellant cites the decision of the Hon'ble Supreme Court in 2013 AIR (SCW) 5064 between “Sadananda Mondal and State of West Bengal“ whereby and whereunder in paragraphs 11 and 13, it is observed as under:- “11. Admittedly, there was no recovery of the alleged weapon used in the incident. The pellet alleged to have emanated from the gun also not got recovered and even no attempt was made to recover the same. It is also not known whether the pellet so fired was from the same weapon. We have already pointed out that PW.3 made inconsistent statements during the trial and while being examined under Section 161 of the Code. There was also no explanation as to the discrepancy in the father's name of the appellant (Naan Gopal and Santhosh) and the defacto complainant being a neighbour of the appellant could not have made such a vital mistake. 12. ........ 13. In the light of the above discussion, we are satisfied that the prosecution has failed to establish its case beyond reasonable doubt even against the appellant and he is also entitled to the benefit of doubt along with the other accused. Accordingly, the conviction and sentence imposed on the appellant A-1 is set aside and he is ordered to be released forthwith if not required in any other offence. The appeal is allowed.” 16. He also seeks in aid of the decision of the Hon'ble Supreme Court in 2003 AIR (SC) 4236 between 'Jitendra and another, and State of M.P.' wherein in paragraphs 5 and 6, it is inter alia observed as follows:- “5. ........ The High Court observed, 'non-production of these commodities before the Court is not fatal to the prosecution. The defence also did not insist during the trial that these commodities should be produced'. The High Court relied on Section 465 of the Cr.P.C. to hold that non-production of the material object was a mere procedural irregularity and did not cause prejudice to the accused. 6. In our view, the view taken by the High Court is unsustainable. In the trial, it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of charas and ganja were seized from the possession of the accused. 6. In our view, the view taken by the High Court is unsustainable. In the trial, it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of charas and ganja were seized from the possession of the accused. The best evidence would have been the seized materials which ought to have been produced during the trial and marked as material objects. There is no explanation for this failure to produce them. Mere oral evidence as to their features and production of panchnama does not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with a stringent sentence as under the NDPS, Act. In this case, we notice that panchas have turned hostile so the panchnama is nothing, but a document written by the concerned police officer. The suggestion made by the defence in cross-examination is worthy of notice. It was suggested to the prosecution witnesses that the landlady of the house in collusion with police had lodged a false case only for evicting the accused from the house in which they were living. Finally, we notice that the Investigating Officer was also not examined. Against this background, to say, that, despite the pancha witnesses having turned hostile, the non-examination of the Investigating Officer and non-production of the seized drugs, the conviction under the NDPS, Act can still be sustained, is far fetched.” 17. He also invites the attention of this Court to the decision of Bihar High Court in between Ashok Sah and The State of Bihar whereby and whereunder in paragraphs 10 and 12, it is observed as follows:- “10. On the other hand learned APP while refuting the submission raised on behalf of appellant has submitted that seizure of tractor and trailer is found conclusively proved. Recovery of Ganja from the secret chamber of trailer weighing 510 Kg is found proved in likewise manner. The vehicle was being plied without having registration number by the appellant at the time of search & seizure that shows conscious possession of the appellant with regard to narcotic substance which, during course of examination by FSL (Ext-4) found to be Ganja. Therefore, the finding recorded by the learned lower Court regarding guilt followed with sentence is based upon cogent as well as conclusive material having been produced by the Prosecution during course of trial. 11. ...... 12. Therefore, the finding recorded by the learned lower Court regarding guilt followed with sentence is based upon cogent as well as conclusive material having been produced by the Prosecution during course of trial. 11. ...... 12. So far fact of the present case is concerned, it is evident that in order to prove its case, the prosecution had examined altogether nine PWs who during course of evidence had categorically stated regarding seizure of tractor and trailer as well as recovery of 510 Kg of Ganja from the secret chamber of trailer. The aforesaid theme has to be looked into inconsonance with the nature of evidence so adduced. PW.1- Sunil Kumar Mishra and PW-2, Ishteyaq Khan whose presence being as seizure list witnesses had simply shown their presence controverting the recovery and on account thereof, both the witnesses were declared hostile.” 18. It is to be pointed out that Section 326 IPC is similar to Section 324 IPC. The only difference is that the words 'Grievous Hurt' were substituted for the term 'Hurt' in Section 324. Section 326 applies to an individual who does a substantive act himself, viz., inflict a blow which caused grievous hurt as defined in the Indian Penal Code. The weapon used/employed must be a deadly one and the hurt intended or known to be likely to be caused should be grievous. For a conviction under Section 326 IPC the requirements of Section 320 IPC should be satisfied. 19. In respect of an offence under Section 326 IPC the prosecution is to prove the following: The causing of grievous hurt by the accused. That it was caused voluntarily That such grievous hurt was caused by means of any of an instrument for shooting etc, or by means of any instrument which used as a weapon of offence is likely to cause death; or by means of fire etc., or by means of any poison etc., or by means of any substance which it is deleterious to human body to inhale etc., or by means of any animal. 20. Before the trial Court, PW.1 (Victim) in his evidence had deposed that on 06.03.2007, at about 7 p.m. after taking tea in Subramaniam tea shop was walking along the western side and he was asked to stop from behind and he was proceeding further without making a halt/stopping. 20. Before the trial Court, PW.1 (Victim) in his evidence had deposed that on 06.03.2007, at about 7 p.m. after taking tea in Subramaniam tea shop was walking along the western side and he was asked to stop from behind and he was proceeding further without making a halt/stopping. Further, he was cut from back side and they also cut him on his palm. He also sustained injuries on his right hand elbow, right wrist, near right chest, right shoulder and also sustained injuries on the back side of the shoulder. He was also cut on his left forearm and wrist. His wife Periyamma and one Nallathambi were sitting together and after seeing him they stood up and he came to his house without saying anything. On the next day, he went to his field for the purpose of letting in water and he also opened the water shutter. It is the further evidence of PW.1 that after getting stab injury, he entered into the tea stall and the Appellant/Accused chased him there also and on the next day at about 6, 7 a.m. in the morning, when he was in the hospital, where he had affixed his left thumb impression on what he uttered before the police and his complaint statement was Ex.P1. 21. PW.1 in his cross examination had categorically stated that at the time, when he was examined by the police, he was not conscious and he had not known what was written by the police. After the occurrence, he directly went to Tanjore Medical College Hospital and he had not gone to the Ariyalur Hospital and he does not know who had taken him to the hospital and he had not taken steps to know, after regaining consciousness, who had given whether Palanivel had given complaint to the police. 22. PW.2 in his evidence had deposed that when he was in his house one year before at about 7 p.m. in the evening he was informed that his brother was stabbed by some one and he went to the occurrence place and in Government Hospital his brother was lying and he informed to the Keezhapalur police and the ambulance came to his village and took his brother in the ambulance to Tanjore Medical College Hospital for treatment and he stayed there in the hospital on the said night. 23. 23. PW.2 in his cross examination had clearly stated that he had mentioned in his statement before the police about his making a call to Keezhapalur police and the factum of ambulance arriving to his village. 24. PW.3 in his evidence had deposed that he knows PW.1 (victim) and the appellant and at the time of occurrence in his shop, he was looking after the business and therefore, he does not know who had stabbed PW.1 and he affixed his signature on request being made by the police. In fact, PW.3 was treated as hostile witness by the trial Court. 25. PW.4 had also stated in his evidence that he knew PW.1, PW.2 and the appellant and they belong to his village and he informed the Appellant/Accused about PW.1 demanding the salary and the Appellant/Accused informed that the food taken by him got adjusted with the salary being asked by him, which fact he informed PW.1. Other than this, he does not know about anything and he was also not examined by the police. As such PW.4 was also treated as hostile witness. 26. Furthermore, PW.5 had also stated in his evidence that he signed in the Mahazar shown to him and at the request of police, he affixed his signature and he does not know the date and month of affixing his signature. As a matter of fact, PW.5 was also treated as hostile witness. 27. PW.6 in her evidence had deposed that she is working as the Assistant Doctor at X-ray Department of Tanjore Medical College Hospital and in the same hospital, she served and on that day, X-rays of PW.1 was taken on his left forearm, left shoulder, right fore hand, right hand, and chest portion in entirety and the bone fracture was found in the radius bone and ulna bone and there was no bone fracture in other places. The X-rays were marked as M.O.1 to M.O.5. 28. PW.7 (Resident Medical Officer of Ortho Department of Tanjore Medical College Hospital) had stated in his evidence that he discharged PW.1 (who was admitted as an inpatient) on 16.03.2007 and PW.1 had sustained bone fracture on his left forearm, radius bone and ulna bone fracture. As such he considered the said injuries to be a grievous one and had rendered his opinion based on the opinion of the X-ray Doctor and Accident Register and the Certificate was Ex.P3. As such he considered the said injuries to be a grievous one and had rendered his opinion based on the opinion of the X-ray Doctor and Accident Register and the Certificate was Ex.P3. 29. PW.8 in his evidence had deposed that based on the opinion obtained by him went to the Tanjore Medical College Hospital at about 9.45 a.m. and found the patient admitted as an inpatient at Ward No.4 and he enquired about him and wrote down what patient had uttered and obtained his thump impression. Later, he came to the Keezhapalur police station at 13.00 hours and registered a case in Crime No.47 of 2007 under Sections 341, 294(b) and 307 of IPC and the First Information Report registered by him was Ex.P4. 30. PW.9 in his evidence had deposed that he went to the occurrence place on 07.03.2007 at about 17.00 hours in the evening and examined witnesses Elavarasu, Kandasamy and in their presence prepared Ex.P5 Mahazar and Ex.P6-Rough Sketch and also examined witnesses Palanivel, Banumathi, Dharmalingam, Elavarasu, Kandasamy and separately recorded their statements. Also on the same day during night time, he went to the Tanjore Hospital and recorded the statement of victim PW.1. Then he searched for the Accused and the Accused had absconded. Later, the Accused had surrendered before the Court. Subsequently, he examined Dr. Manoharan and Dr. Malarvizhi and recorded their statements. He also obtained the Wound Certificate. After completion of investigation, he laid charge sheet against the Appellant/Accused under Sections 341, 294(b) and 307 of IPC. 31. It is true that PW.1 in his evidence had not categorically stated that the Appellant/Accused had stabbed him. But he uttered the following words in his evidence in. From this, it is evident that PW.1 had stated that in his palm many had cut him. However, in the later portion of his evidence, he had stated that when he entered the tea shop after sustaining the injury, he was chased by the Accused and he went to the hospital at about 6 or 7 on the next day morning. 32. However, in the later portion of his evidence, he had stated that when he entered the tea shop after sustaining the injury, he was chased by the Accused and he went to the hospital at about 6 or 7 on the next day morning. 32. At this stage, this Court pertinently points out that PW.1 in his evidence (in cross examination) had in unequivocal terms stated that the Appellant/Accused came from behind and cut him and also he went on to state that when he was walking on the western side, at that time he was asked by the Appellant/Accused to stop. As such PW.1 in his cross examination had rightly fixed the role of the Appellant/Accused in regard to the cut injury inflicted upon him by the Appellant/Accused. Viewed in this back ground, this Court is of the considered view that the Appellant/Accused cannot in any manner take advantage of the fact that PW.1 had not deposed in a crystal clear terms as to who cut him and at which place. To put it precisely, in his cross examination, PW.1 had clearly spoken about the role of the Appellant/Accused in regard to the manner of cutting him and also from which place he came from behind and cut him. 33. To put it differently in regard to non mentioning of as to who was the accused by P.W.1, in his evidence, the same would not in any way affect the story or case of the Prosecution, in the considered view of this Court, because of the fact that PW.1 had gained his ground in the cross examination and more so, he had specifically fixed the role of the Appellant/Accused in regard to the manner of cutting viz., that the Appellant/Accused had come from behind and cut him. 34. In regard to the alleged discrepancy of the evidence of PW-6 Doctor stating that PW.1 had sustained injury on right hand and another Doctor-PW.7 adducing evidence before the trial Court that PW.1 sustained injury on left hand, this Court is of the considered view that the small discrepancy in this regard would not affect the story of Prosecution or weaken the case of Prosecution in any manner whatsoever. In fact, in the present case on hand, the Accident Register was marked as Ex.P3, which shows that the Accused had sustained as many as 1 to 7 lacerated injuries, which run as follows:- Laceration on the Right Chest 10 x 5 x 3 cm. Laceration on the Right hand 12 x 3 x 4 cm. L/E Laceration in Left Forearm 6 x 3 x 2 cm. Laceration in 10 x 5 x 3 cm in Right Forearm. Laceration 8 x 4 x 2 cm in Right Elbow. Laceration 10 x 4 x 2 cm in Right arm. Laceration 8 x 5 x 3 cm Right Shoulder. Laceration 8 c.m in Right Shoulder 35. Even PW.7 Doctor Manoharan had spoken about the grievous injuries sustained by PW.1. In short, the injuries sustained by PW.1/Victim namely 1 to 7 injuries as seen from Ex.P3, in the considered opinion of this court, do not attract the ingredients of Section 307 of IPC. Also in this regard, this Court had taken into account the evidence of PW.1. To put it precisely, this Court is of the considered view that as against the Appellant/Accused, no case was made out by the Prosecution in regard to the offence under Section 307 of IPC. Instead taking into account the nature of 1 to 7 grievous injuries sustained by PW.1 as seen from Ex.P3 and also as spoken to PW7, this Court holds that the Prosecution had proved its case in respect of the offence against the Appellant/Accused under Section 326 of IPC. 36. Dealing with the charge/offence in respect of Section 294(b) of IPC ''using indecent language'' at the time of occurrence, it is to be pointed out that PW.1 had not spoken about the alleged indecent/vulgar words used by the Appellant/Accused at the time of commission of occurrence/incident. As such, this Court comes to the conclusion that the offence under Section 294(b) of IPC against the Appellant/Accused was not made out on the side of the Prosecution. 37. In imposing sentence on the offender like the trial Court is necessary to consider factors, (a) the nature of injury (b) part of the body chosen by accused, and (c) weapon used. 38. Although some of the witnesses, namely, P.Ws. 37. In imposing sentence on the offender like the trial Court is necessary to consider factors, (a) the nature of injury (b) part of the body chosen by accused, and (c) weapon used. 38. Although some of the witnesses, namely, P.Ws. 2, 3 and 5 turned hostile before the trial Court, this Court in the upshot of detailed qualitative and quantitative discussions as mentioned supra and also taking into account of the entire facts and attendant circumstances of the present case in an encircling fashion, comes to an inescapable and irresistable conclusion that the Prosecution had made out a case against the Appellant/Accused under Sections 341 and 326 of IPC and in this regard, the trial Court had rightly found the Appellant/Accused guilty under Sections 341 and 326 of IPC and rightly imposed the conviction and sentence as stated supra. In short, this Court is in complete agreement with the view taken by the trial Court of course, based on the reasons assigned by this Court in this Criminal Appeal. Consequently, the Criminal Appeal fails. 39. In the result, the Criminal Appeal is dismissed. It is brought to the notice of this Court that this Court on 24.10.2008 in M.P.No.1 of 2008 in Crl.A.No.754 of 2008 had passed orders suspending the sentence of imprisonment alone and released the Appellant/Accused on bail by imposing certain conditions. In view of the fact that the present Appeal is dismissed by this Court, the trial Court, as a logical corollary, is directed to take appropriate steps to confine the Appellant/Accused in prison to serve the period of sentence.