JUDGMENT AND ORDER : Heard Mr. P. Majumder, learned counsel appearing for the petitioners as well as Mr. R. C. Debnath, learned Addl. P.P. appearing for the respondent State. 2. This is a petition under Section 397 read with Section 401 of the Cr. P.C. questioning the judgment dated 16.09.2014 delivered in Crl. A. No. 01 of 2014 by the Additional Sessions Judge, Kamalpur, North Tripura (as he then was) on affirming the judgment of conviction and order of sentence dated 27.11.2013 passed by the Sub Divisional Judicial Magistrate, Kamalpur, North Tripura (as he then was) in P.R.C. No. 65 of 2013 [corresponding to G. R. Case No. 42 of 2013]. By the judgment dated 27.11.2013, the trial court convicted the petitioners under Sections 324/34 of IPC and sentenced them to undergo RI for 1 year with fine of Rs. 5,00/with default imprisonment. The said judgment has been affirmed by the impugned judgment dated 16.09.2014. 3. Being aggrieved, the petitioners herein filed an appeal under Section 374(3) of the Cr. P.C. being Crl. A. No. 01 of 2014 and by the judgment dated 16.09.2014 while dismissing the said appeal, the Appellate Court has observed as under: “Considering the materials on record, Ld. SDJM, Kamalpur rightly convicted the accused persons. Considering the point that both the accused persons are husband and wife and they have two children, it may be the reason that the two children may be derailed. For this reason, I hereby reduce the term of sentence of R.I for a period of 6 months from the imposed sentence of 1 year. Both the convicts shall suffer R.I for a period of 6 months and shall also pay the fine as sentence by the trial court.” 4. Mr. P. Majumder, learned counsel appearing for the petitioners has raised several grounds of objection against the impugned judgment dated 16.09.2014. Mr. Majumder, learned counsel has contended that other than the witnesses who have alleged to have suffered hurt for the overt act of the petitioners, no other witness was present at the time of the alleged assault. Mr. P. Majumder, learned counsel appearing for the petitioners has raised several grounds of objection against the impugned judgment dated 16.09.2014. Mr. Majumder, learned counsel has contended that other than the witnesses who have alleged to have suffered hurt for the overt act of the petitioners, no other witness was present at the time of the alleged assault. Moreover, what the injured witness has stated is hardly believable and if the individual testimonies of the injured witnesses (PWs 4 & 5) are scrutinized, it would be apparent that there is serious incongruity between those statements made in the trial and as such, the prosecution has failed to prove the charge against the petitioners beyond reasonable doubt. 5. That apart, Mr. Maunder, learned counsel appearing for the petitioners has referred to the testimony of the PW7 (Dr. Amit Debbarma), the Medical Officer who treated both the injured witnesses (PWs 4 & 5). 6. PW7 has stated that on 02.03.2013 he had examined Mahananda Pandey, PW5 and Birajit Namasudra, PW4 in connection with Kamalpur P.S. Case No. 16 of 2013. After examination of Mahananda Pandey (PW5) PW7 found the following injuries: (i) Lacerated injury (1x2 cm) on left parietal region and (ii)Blunt injury on right deltoid region. 7. So far as the injuries are concerned, according to PW7, those are simple in nature. After examination of Birajit Namasudra (PW4), PW7 has stated that he found the following injuries on the persons of PW4: (i) Lacerated injury on left right finger (ii) Abrasion present over right upper elbow joint and (iii) Abrasion present over right deltoid region. 8. PW7 has further opined that the injuries were simple in nature. He identified the report which he issued to the Investigating Officer as Exhibits 3 & 4 respectively for PWs.4 & 5. 9. In the cross-examination, PW7 has categorically stated that for using sharp weapon, there may be cut injury afflicted. In case of injury by Shavol (crowbar), there is no chance of receiving lacerated injury. In case of injury by dao, there must be cut injury. Abrasion and lacerated injury generally may not be possible by dao. Persons for fall on hard substance may receive the above injuries. The injuries as stated by the injured persons to PW7 are for ‘physical assault’. 10. Mr. In case of injury by dao, there must be cut injury. Abrasion and lacerated injury generally may not be possible by dao. Persons for fall on hard substance may receive the above injuries. The injuries as stated by the injured persons to PW7 are for ‘physical assault’. 10. Mr. P. Majumder, learned counsel appearing for the petitioners has therefore succinctly submitted that even if the statements of PWs4 & 5 and PW7 are read together, the hurt and the nature of weapon as allegedly used cannot be come within the ambit of Section 324 of the IPC. He has urged that the prosecution has miserably failed to prove the charge beyond reasonable doubt. 11. From the other hand, Mr. R. C. Debnath, learned Addl. P.P. in order to repel the submission made by Mr. P. Majumder, learned counsel appearing for the petitioners has submitted that from the place of occurrence both the dao (sharpcutting weapon) and the Shavol (the crowbar) were recovered by the police after preparing the seizure list. 12. That apart, Mr. Debnath, learned Addl. P.P. has submitted that not only PWs 4 & 5, PW2, Smt. Kalpana Pandey, has claimed to have witnessed the occurrence when the petitioner No. 2, Smt. Priti Rani Deb was giving dao blow on the injured witness, Birajit Namasudra (PW4). She has also claimed to have seen the petitioner, namely, Bikash Deb assaulting Mahananda Pandey (PW5) with Shavol on head. She has however submitted that the injured persons were taken to Nakashi Para PHC for treatment. In the cross-examination, her statement could not be dented. 13. Mr. Debnath, learned Addl. P.P. has also submitted that even PW3, Smt. Pranati Namasudra has claimed to have witnessed affliction by dao blow on the left hand of her son, namely, Birajit Namasudra. 14. Having referred all those testimonies including that of PW9, Lakhan Pandey who has stated that the petitioner No. 2, Prit Rani Deb gave the dao blow on his nephew and Bikash Deb, the petitioner No. 1 had assaulted Mahananda Pandey (PW5) by his Shavol. 15. Mr. Debnath, learned Addl. P.P. has further submitted that the ocular testimony should be given precedence over the testimony of the expert and as such, interference from this Court is not warranted against the finding of the trial court, as affirmed by the Appellate Court. 16. 15. Mr. Debnath, learned Addl. P.P. has further submitted that the ocular testimony should be given precedence over the testimony of the expert and as such, interference from this Court is not warranted against the finding of the trial court, as affirmed by the Appellate Court. 16. It is pertinent to note here that what has been submitted by Mr. R. C. Debnath, learned Addl. P.P. that ocular evidence shall be given precedence over the expert evidence cannot be accepted as the universal rule. If the ocular evidence is of such standard which can be relied without any hesitation, then, of course, that rule can be applied but in this case this Court has not accepted reliability of the evidence of PWs 2, 3 and 9. 17. Having scrutinized the record, this Court finds that PWs2, 3 and PW9 cannot be believed for obvious reason. The witnesses who flaunted to see the occurrence have in a chorus stated that after hearing the alarm raised by some people as PWs4 & 5 were attacked and injured, those witnesses rushed to the place of occurrence. Obvious it is that they were not present at the place of occurrence. For them to see the occurrence is an improbability. Another aspect that cannot be brushed aside by this Court that those witnesses are closely related to the victims. 18. If those three witnesses [PWs2, 3 and 9] are not relied upon by this Court, the only evidence that requires to be appreciated by the Court is the testimonies of PWs 4 & 5 and the medical evidence which has been recorded through PW7. PW7 has unequivocally stated that no injury was done by sharpcutting weapon. However, he has stated that the same injury may be created by use of the Shavol at the time of assault but in the crossexamination he has made an unequivocal statement that both the injured witnesses i.e. PWs4 & 5 had stated to him that they received those injuries from assault. 19. PWs4 & 5 did not mention to the PW7 that the injuries they received were from the dao or shavol. PW7 has further opined in the Court that the injuries may be on fall on the ground. Moreover, what is most interesting to note that PW7 has clearly indicated that by ‘assault’ PWs4 and 5 did not imply that those injuries were from use of dangerous weapons. PW7 has further opined in the Court that the injuries may be on fall on the ground. Moreover, what is most interesting to note that PW7 has clearly indicated that by ‘assault’ PWs4 and 5 did not imply that those injuries were from use of dangerous weapons. 20. Having regard to the nature of the evidence as well as their probative value, this Court is of the opinion that the prosecution has failed to bring the charge under Section 324 of the IPC home. But the prosecution has successfully proved that PWs4 & 5 had received hurt from the assault lunched by the petitioners. As such, the offence is covered under Section 323 of the IPC which is cognate and minor to the offence under Section 324 of the IPC. Hence, without framing any charge under Section 323 of the IPC, in exercising the powers provided by Section 222 of the Cr. P.C. this Court does hereby convicted the petitioners under Section 323 of the IPC on reversing the finding of conviction under Section 324 of the IPC. 21. Having regard to the various factors including the factor that the petitioners have two children to be looked after and there social status and moreover, having no criminal antecedent, at least nothing has been placed before the Court, this Court is of the view that both the petitioners shall be sentenced to suffer RI for 1 (one) month. For undergoing the sentence, the petitioners shall surrender before the Court of SDJM, Kamalpur within 3 (three) weeks from today. Needless to say, if there was any detention in connection with this case, that shall be setoff from this sentence. 22. If the petitioners do not surrender before the Court within the stipulated time, all coercive actions shall be taken by the SDJM, Kamalpur, Unakoti, so that the petitioners suffered the sentence as awarded. Having observed thus, this petition is partly allowed to the extent as indicated above. Send down the LCRs forthwith.