JUDGMENT & ORDER : 1. This is a criminal revision petition filed under Sections 397/401 read with Section 482 of the Cr.PC, challenging the legality and propriety of the judgment and order, dated 30.10.2006 passed by the learned Chief Judicial Magistrate, Jorhat, in GR Case No. 90/2005, convicting the accused petitioner under Section 326 of the IPC and sentencing him to suffer rigorous imprisonment for 2 (two) years and to pay a fine of Rs. 2,000/-, and in default, to suffer rigorous imprisonment for a further period of 3 (three) months and also the judgment and order, dated 10.05.2007, passed by the learned Sessions Judge, Jorhat in Criminal Appeal No. 48/2006, upholding the aforesaid judgment of the learned Chief Judicial Magistrate, Jorhat. 2. Heard Mr. Santanu Bora, learned counsel appearing for the accused petitioner as well as Mr. PS Lahkar, learned Additional Public Prosecutor, appearing for the State of Assam. 3. The case for the prosecution is that on 05.02.2005, at about 8:20 pm, informant’s son/injured, Dipankar Kalita went out of the house after taking dinner. There the injured saw some cows entering into their campus. He drove away the cows but the cows damaged the nearby vegetable shop, which was owned by the accused petitioner. After the cows damaged the vegetable shop, Sri Sonaram Kalita and Sri Gathi Kalita, the father and the brother of the accused petitioner, respectively charged the injured/PW1 and assaulted him. He fell down, and at that time, the accused petitioner inflicted dao blow on his head causing injuries. While he raised hue and cry, his parents came out of their house and then took him to Jorhat Civil Hospital and from there the injured was shifted to Assam Medical College Hospital, Dibrugarh. 4. On the basis of such facts, the PW3, Smti Kabita Kalita, the mother of the injured/PW1, lodged the FIR with the Bhogdoi Police Out Post and on receipt of the FIR through Bhogdoi Police Out Post, the Jorhat Police Station registered a case, being Case No. 36/2005, under Sections 341/326 of the IPC. 5. The Police, after completion of investigation of the case, submitted charge-sheet against the accused petitioner under Sections 341/326 of the IPC. 6. The learned Trial Court, framed a formal charge against the accused petitioner under Sections 341/326 of the IPC, to which he pleaded innocence. 7. 5. The Police, after completion of investigation of the case, submitted charge-sheet against the accused petitioner under Sections 341/326 of the IPC. 6. The learned Trial Court, framed a formal charge against the accused petitioner under Sections 341/326 of the IPC, to which he pleaded innocence. 7. That bring home the charge, the prosecution examined as many as 8 (eight) witnesses, including the Medical Officer and the Investigating Police Officer. The defence examined 3 (three) witnesses in rebuttal. 8. In the statement recorded under Section 313 of the Cr.PC, the accused petitioner is found to have denied the accusation levelled against him. The accused petitioner is also found to have taken the plea, during the cross-examination of the prosecution witnesses as well as during the defence evidence, that he was not at the place of occurrence, and as such, he had taken the plea of alibi. 9. In this case, the learned Trial Court in recording the order of conviction mostly relied upon the evidence of PW1, PW2 and PW3, i.e., the injured, his father and his mother, respectively. 10. The PW5, PW6 and PW7 are not the eye-witnesses to the occurrence. The PW5, PW6 and PW7, in their respective evidence, claimed that they heard about the incident and went to the house of the injured, PW1. 11. PW5 came to the house of the injured/PW1 in the night on the date of occurrence itself, after hearing about the incident, and saw that the injured was bleeding from his head and the PW2 told him that the accused petitioner caused him the injuries. 12. PW6 also came to the house of the injured, after hearing that the accused petitioner caused hurt to the injured/PW1. 13. PW7 also visited the house of the injured/PW1 in the night of the occurrence itself as he heard halla and he also saw injuries on the head of the PW1. 14. So, it appears from the evidence of PW5, PW6 and PW7 that, as stated above, none of them were eye-witness to the occurrence. On visiting the house of the injured/PW1, they came to know from the PW2, i.e. the father of the injured, that the accused petitioner caused the injuries on the person of the PW1. 15. 14. So, it appears from the evidence of PW5, PW6 and PW7 that, as stated above, none of them were eye-witness to the occurrence. On visiting the house of the injured/PW1, they came to know from the PW2, i.e. the father of the injured, that the accused petitioner caused the injuries on the person of the PW1. 15. PW4 is the Medical Officer, who examined the injured, PW1 in the Jorhat Civil Hospital, on the date of occurrence itself, on Police requisition, found one wound on the scalp of PW1. He opined that the said injury was fresh, grievous in nature and was caused by a sharp cutting object. He exhibited the report containing his opinion vide Ext.2. 16. PW8 is the Investigating Police Officer of the case. It is found from his evidence that he received information about the occurrence over telephone and on the basis of which he made a General Diary Entry at the Bhogdoi Police Out Post. He investigated the case, prepared the sketch map of the place of occurrence, vide Ext.3 and also recorded the statement of the witnesses, including the injured PW1. He also arrested the accused petitioner. The injured PW1 was shifted from Jorhat Civil Hospital to Assam Medical College Hospital, Dibrugarh for further treatment, on the next day, i.e., on 06.02.2005. He received the written FIR, vide Ext.1 17. The evidence of PW1, in the instant case, appears to be most vital for the reasons that it has came out from his evidence that at the time accused petitioner caused injuries to him, there was none at the place of occurrence. The evidence of PW2 and PW3, the father and the mother, respectively, of the injured also shows that they appeared at the place of occurrence, after hearing hue and cry. Further, the evidence of the PW2, the father of the injured, makes it appear that he had seen the accused petitioner and his father and the brother, namely, Sri Sonaram Kalita and Sri Gathi Kalita fleeing from the place of occurrence. 18. The occurrence took place in the late evening after 8:00 pm. The injured PW1 himself admitted that there was none at the place of occurrence. His evidence that his parents came out after hearing hue and cry raised by him was corroborated by his parents, examined as PW2 and PW3, respectively. 19. 18. The occurrence took place in the late evening after 8:00 pm. The injured PW1 himself admitted that there was none at the place of occurrence. His evidence that his parents came out after hearing hue and cry raised by him was corroborated by his parents, examined as PW2 and PW3, respectively. 19. No other witnesses were present at the place of occurrence is a fact, which can also be gathered from the evidence of PW5, PW6 and PW7 to the effect that they came to the house of the injured PW1 after hearing about the incident. Their evidence that the PW1 told them about the incident that the accused petitioner caused injuries to his person is reliable. Such evidence also received support from the evidence of PW2, the father of the injured that he saw the accused petitioner with his father and the brother fleeing from the place of occurrence. 20. Such being the evidence of the prosecution witnesses, particularly the evidence of PW1, PW2 and PW3, it appears that the prosecution has been able to prove the case against the accused petitioner beyond all reasonable doubt. But, we have to scan the evidence of the defence witnesses to find out whether they have been able to discredit the prosecution version of the story. Thus, creating reasonable doubt to absolve the accused petitioner from the charge. 21. As stated earlier, it is found that the defence has taken the plea that the accused petitioner was not there at the place of occurrence and rather he was at his tailoring shop near Bahuna College situated at some distance away from the place of occurrence. 22. DW1, DW2 and DW3 in their evidence claimed that they have shops at the Tinali near Bahuna College and the accused petitioner also have a shop there. They kept their shops open till 9:00-9:30pm in the night everyday, and on the relevant day of occurrence also, they were in their respective shops till 9:30pm. According to them, at the time of the incident, the accused petitioner was also in his shop and they went back home together after closing their shops. 23. It has also come out from the evidence that in their respective shop, they remain busy. According to them, at the time of the incident, the accused petitioner was also in his shop and they went back home together after closing their shops. 23. It has also come out from the evidence that in their respective shop, they remain busy. To substantiate that the accused petitioner was at his shop, at the relevant point of time, it must be shown by the DWs that they were with the accused petitioner at the relevant time which fact has not been brought on record through their evidence. 24. The rule of evidence is that when the plea of alibi is taken by the accused petitioner, then, burden is shifted to him to prove the same and the burden is rather higher than the prosecution. In the instant case, mere saying by the DWs that the accused petitioner was in his shop at the relevant time of occurrence, which was about three kilometres away from the place of occurrence, itself is not sufficient for the reason that in their evidence itself they have stated that they remained busy in their shops and there is no evidence that at the relevant point of time they were together with the accused petitioner. The occurrence took place at about 8:20 pm. Even if it is supposed that, the accused petitioner was in his tailoring shop at 9:00-9:30 pm, yet the evidence of DWs is bound to prove that at 8:20 pm or around that time, also he was at his tailoring shop, which is not proved herein this case, and therefore, the plea of alibi fails. Therefore, such evidence of the DWs does not appear to be credible and even not found to be somewhere near to proof the plea of alibi. That being so, it appears that the defence has not been able to discredit or demolish the prosecution case. 25. As has been found above, the prosecution has been able to prove the case beyond all reasonable doubt, holding the accused petitioner guilty. 26. Now the question is whether the accused petitioner committed an offence punishable under Section 326 IPC or under Section 324 of the IPC. 27. 25. As has been found above, the prosecution has been able to prove the case beyond all reasonable doubt, holding the accused petitioner guilty. 26. Now the question is whether the accused petitioner committed an offence punishable under Section 326 IPC or under Section 324 of the IPC. 27. Learned counsel for the accused petitioner has submitted that the prosecution has not been able to prove the case as there was no independent witness, which has been discussed above, and in-spite of such position, the evidence of the PW1, PW2 and PW3 is relied upon by this Court for the reasons stated while discussing the evidence. 28. The 2nd leg of argument of the learned counsel for the accused petitioner is that the injuries sustained by the accused petitioner does not fall within the category of injuries under Section 326 of the IPC and according to him, the injuries at best, can be under Section 324 of the IPC. 29. As per the medical report and the evidence of the Doctor, the accused petitioner caused injuries to the injured PW1 on his scalp with a sharp cutting object, which was found to be grievous. There is apparently no evidence on record that the victim/PW1 suffered bodily pain for atleast 20 days and was unable to follow his ordinary pursuits. 30. The injured PW1 was in hospital for four days. There is also no evidence on record that the injuries sustained by the PW1/injured was of such nature or degree to endanger his life. Further, there is no specific medical evidence on record to suggest that the injured sustained any of the injuries mentioned in the ‘first’ to ‘eightly’ of Section 320 of the IPC. 31. That being so, in the instant case, the injury does not appear to be an injury falling under ‘first’ to ‘eightly’ mentioned in Section 320 of the IPC, punishable under Section 326 of the IPC. 32. But, the fact remains that the injuries were caused by a sharp cutting weapon remain un-assailed. Therefore, in the considered view of this Court, the injuries falls under the categories mentioned under Section 324 of the IPC. 33. Accordingly, the accused petitioner is convicted under Section 324 of the IPC. 34. 32. But, the fact remains that the injuries were caused by a sharp cutting weapon remain un-assailed. Therefore, in the considered view of this Court, the injuries falls under the categories mentioned under Section 324 of the IPC. 33. Accordingly, the accused petitioner is convicted under Section 324 of the IPC. 34. This Court has also noticed that the case is of the year 2005 and after fighting a long drawn legal battle in the Trial Court and in the Appellate Court of the learned Sessions Judge, since 2005 the accused petitioner has approached this Court. 35. Considering such facts, this Court is of the considered view that if the accused petitioner is sentenced to imprisonment for a period already undergone during investigation and trial and a fine of Rs. 3,000/-, and in default, Simple Imprisonment for 15 (fifteen) days will meet the ends of justice. 36. Accordingly, the accused petitioner is sentenced to the period already undergone, and a fine of Rs. 3,000/-, and in default of payment of fine, to suffer Simple Imprisonment of 15 (fifteen) days. 37. The revision petition is partly allowed. 38. Send down the LCR along with the copy of this judgment.