ORDER : The petitioners, being accused Nos.1 and 2, have challenged the judgment of conviction and order of sentence passed by the Civil Judge (Junior Division) and Judicial Magistrate First Class Court, Hosanagara, in Criminal Case No.379 of 2005, wherein both the petitioners tried and convicted by the trial Court for the offences punishable under Sections 326 and 504 read with Section 34 of the Indian Penal Code (for short, ‘the I.P.C.’). Petitioner No.1 was sentenced to undergo simple imprisonment for six months with a fine of Rs.500/and in default of payment of fine, to undergo simple imprisonment for one week for the offence punishable under Section 326 of the I.P.C. and both the petitioners were sentenced to pay a fine of Rs.500/each and in default of payment of fine, to undergo simple imprisonment for eight days for the offence punishable under Section 504 of the I.P.C. vide judgment dated 5-1-2010. 2. Being aggrieved by the same, the accused have preferred an appeal in Criminal Appeal No.3 of 2010 for setting aside the judgment of conviction and order of sentence passed by the trial Court, whereas the State has also preferred an appeal in Criminal Appeal No.26 of 2010 seeking enhancement of sentence. The Fast Track Court-III, after hearing the arguments, dismissed both the appeals and confirmed the judgment of conviction and order of sentence passed by the trial Court vide judgment dated 28112011. The accused preferred this petition against the judgment of conviction and order of sentence passed by the trial Court. However, the State has not preferred any revision petition. 3. Heard the learned counsel for the petitioners as well the learned High Court Government Pleader for the respondent-State. Perused the records. 4. The factual matrix of the case of the prosecution before the trial Court is that PW1Chandrakala said to be the Vice President of the Village Panchayat filed a report before the Police while she was undergoing treatment in the hospital alleging that on 9-4-2005 at about 6:30 p.m., her mother-in-law, sister-in-law and herself had gone to the land of the accused to see moon on the eve of Ugadi festival, at that time, accused No.2 picked up quarrel with her stating that they have come to their land to remove fencing and to lay a road. Accused No.2 abused her in filthy language. Accused No.2 abused her in filthy language. At that time, all of sudden, accused No.1 came and assaulted PW1 with stick on her head, shoulder and caused bleeding injury. PW2 and PW3 pacified the quarrel. Accused No.1 ran away from the spot. Later, PW1 has been shifted to the hospital by PW5father-in-law. After intimation, the Police went to the hospital and recorded her statement as per Ex.P1 and registered a case in Crime No.52 of 2005 for the offences punishable under Sections 504, 323, 324 and 506 read with Section 34 of the I.P.C. The Investigating Officer visited the spot on the next day and recovered the weapon in the presence of the panchas, recorded the statement and later, after receiving the Wound Certificate filed a chargesheet against the petitioners for the above said offences. The trial Court, after securing the presence of the accused, framed the charges and they pleaded not guilty. In order to prove the guilt of the accused, the prosecution in all examined 10 witnesses as PW1 to PW10 and got marked 6 documents as per Ex.P1 to Ex.P6 and also got marked 3 material objects as per MO.1 to MO.3. Thereafter, the statements of the accused under Section 313 of the Code of Criminal Procedure have been recorded and the case of the accused was of total denial, but not entered into any defence. After hearing, the trial Judge convicted accused Nos.1 and 2 for the offences punishable under Sections 504 and 326 of the I.P.C. 5. Learned counsel for the petitioners has strenuously argued that PW1 is said to have been injured. PWs.2, 3 and 5 are related witness, i.e. mother-in-law, sister-in-law and father-in-law of PW1. Their evidence should not be accepted as there is enmity between them. PW1 is the Vice President of the Village Panchayat. She wants to lay a road in the land of the petitioners, due to which, there was enmity between them. The Investigating Officer was not examined which is fatal to the case of the prosecution. PW1injured sustained only one injury and it appears to be simple in nature and the injury is without any supporting documents like X-Ray or scanned report. PW10-Dr. The Investigating Officer was not examined which is fatal to the case of the prosecution. PW1injured sustained only one injury and it appears to be simple in nature and the injury is without any supporting documents like X-Ray or scanned report. PW10-Dr. Shakil Ahmed issued Wound Certificate as per ExP6 that the injuries are grievous in nature and in examination-in-chief, he admits that the club cannot cause such a sharp injury and in the cross-examination, the Doctor further admits that if a person falls on the sharp object, such injury could be caused. This fact was not properly appreciated by the Courts below. If the evidence of Doctor is considered, the injury is simple in nature. The trial Court ought to have extended the benefit of the Probation of Offenders Act, 1958, and they should have been released on due admonition. Though the Appellate Court considered the injury shown in Ex.P6 falls under Section 320 of the I.P.C, but no findings given by the Appellate Court. Therefore, it is contended that judgments passed by the Courts below have to be set aside. 6. Per Contra, the learned High Court Government Pleader has contended that the evidence of PWs.1 to 3-eyewitnesses have clearly supported the case of the prosecution. The panch witnesses, i.e. PWs.8 and 9 have supported in respect of recovery of a club used for assaulting PW1. PW10-Doctor has fully supported the case of the prosecution and opined that the injury sustained by PW1 is grievous in nature. Though the Investigating Officer was not examined, it is not fatal to the case of the prosecution. There is no illegality or error in the findings of the trial Court as well as the Appellate Court. Hence, he prayed for dismissal of the revision petition. 7. On considering the evidence on record, PW1-Chandrakala, who is the complainant, has supported the case of the prosecution and has reiterated in the complaint lodged by her before the Police. Though lengthy crossexamination is made by the learned counsel, but nothing has been elicited to disbelieve the evidence of this witness. 7.1 PW2-Sarojamma is the mother-in-law of PW1 and PW3Savithri is the sister-in-law of PW1. Both of them have supported the evidence of PW1 and they have spoken about the assault on PW1. They also stated that they specified the quarrel. 7.2 PW5-Yallappa is the father-in-law of PW1. 7.1 PW2-Sarojamma is the mother-in-law of PW1 and PW3Savithri is the sister-in-law of PW1. Both of them have supported the evidence of PW1 and they have spoken about the assault on PW1. They also stated that they specified the quarrel. 7.2 PW5-Yallappa is the father-in-law of PW1. He has deposed that he shifted the injured to the hospital. He has also supported the case of the prosecution. 7.3 PWs.4, 6 and 7 are all circumstantial witnesses and they have turned hostile and not supported the case of the prosecution. 7.4 PW8-Manjappa and PW9Devaraja are the Mahazar witnesses. They have clearly deposed that the Police visited the spot on the next day of the incident and drawn mahazar as per Ex.P2 and the Police have recovered MO.1club. 8. The evidence of PWs.1 to 3, 5, 8 and 9 clearly corroborate with each other in respect of incident took place on 942005 at about 6:30 p.m., when PW1 along with PW2 and PW3 had gone to see moon on the eve of Ugadi festival, the accused have assaulted PW1 and after the incident, PW1 has been shifted to the hospital by PW5 and PW10-Doctor, who treated the injured, has also given evidence before the Police and issued Wound Certificate that PW1 was brought to the hospital with the history of assault and found one injury, i.e. lacerated wound to left frontal tempero region of scalp measuring 2" x 1" in size. As per the opinion of the Doctor, the injury was grievous in nature. During examination-in-chief, he has stated that if a person is assaulted with a club like MO.1, injury as shown in the Wound Certificate can be caused and he has stated that weapon must be a sharp edged weapon. In the crossexamination, this witness has further stated that the depth of the injury is 2 inches and length of the injury is 1 inch, but this witness has admitted that the width of the injury was not mentioned and further, he has admitted that the said injury could be caused, if a person falls on a rough surface. Except this suggestion, nothing worth has been elicited in the crossexamination to disbelieve the evidence of this witness. 9. Except this suggestion, nothing worth has been elicited in the crossexamination to disbelieve the evidence of this witness. 9. Learned counsel for the petitioners has vehemently argued that the injury shown in the Wound Certificate as per Ex.P6 by PW10 is grievous injury, but there is no document like X-Ray or scanning report to show that the injury is grievous in nature or to show it was fracture or injury which falls under the definition of Section 320 of the I.P.C. 10. On perusal of Ex.P6-Wound Certificate, the Medical Officer referred the injured to Radiology Department for getting opinion to know any fracture on the frontal bone was there or not. Even no X-Ray or scan was made to show the injured sustain any fracture in order to show the injury was grievous in nature. Though the First Appellate Court considered this aspect and discussed that, in order to fall the injury under the category of Section 320 of the I.P.C., there must be some fracture or the injured shall be treated in the hospital at least for 20 days as inpatient. The Wound Certificate does not reveal for how many days the injured was admitted in the hospital. As per Ex.P1, the injured was admitted in the hospital for eleven days. Even on perusal of provisions of Section 320(eighthly) of the I.P.C., it requires minimum 20 days as inpatient in order to attract Section 320 of the I.P.C., but PW1 took treatment for 11 days and it definitely does not fall under the category of Section 320 of the I.P.C. 11. Even on perusal of the Wound Certificate and the evidence of PW10, the Court cannot accept that the injury was grievous in nature without any fracture of bone or the injured admitting in the hospital for 20 days. Therefore, injury sustained by PW1 cannot be considered as grievous in nature. Nextly, the Investigating Officer is also not examined by the prosecution. Merely nonexamination of the Investigating Officer is not fatal to the case of the prosecution and it all depends upon the facts and circumstances of each case. Though there is no explanation by the prosecution why the Investigating Officer was not examined, however, the eyewitnesses, the evidence of the Doctor and panch witnesses have supported the case of the prosecution. Therefore non-examination of the Investigating Officer is not fatal to the case of the prosecution. 12. Though there is no explanation by the prosecution why the Investigating Officer was not examined, however, the eyewitnesses, the evidence of the Doctor and panch witnesses have supported the case of the prosecution. Therefore non-examination of the Investigating Officer is not fatal to the case of the prosecution. 12. Both the Courts below held that the injury sustained by PW1 as per Ex.P6 issued by PW10 was grievous in nature. On the other hand, this Court finds that the injury must be simple in nature and weapon used was only a club. The Investigating Officer has not sent MO.1club to the Doctor for getting opinion of the Expert, whether MO.1 could cause such injury. The Division Bench of this Court in the case of STATE V. SHEENAPPA GOWDA AND OTHERS reported in 2011 (4) KCCR 2759 (DB) has taken a view that in the absence of any X-Ray film or report, the injury cannot be considered as grievous in nature and the same to be considered as simple in nature by converting the offence punishable under Section 324 of the I.P.C. and not under Section 326 of the I.P.C. Therefore, in the absence of those evidence, the trial Court as well the Appellate Court must have held that the injury sustained by PW1 was simple in nature, but wrongly came to the conclusion that the injury was grievous one. Hence, the same requires to be set aside. 13. On the other hand, this Court finds that the injury sustained by PW1 may fall under Section 324 of the I.P.C. Except this, I do not find any error in the findings in respect of the trial Court for appreciating the evidence for the offence under Section 504 of the I.P.C. Therefore, the judgments of both the Courts below in respect of findings under Section 326 of the I.P.C are required to be altered to Section 324 of the I.P.C. Accordingly, I pass the following: ORDER i. The revision petition is partly allowed; ii. The judgment of conviction and order of sentence passed by the trial Court in respect of the offence punishable under Section 504 of the I.P.C. is hereby confirmed. However, the sentence for the offence punishable under Section 326 of the I.P.C. is hereby set aside and modified to Section 324 of the I.P.C.; iii. The judgment of conviction and order of sentence passed by the trial Court in respect of the offence punishable under Section 504 of the I.P.C. is hereby confirmed. However, the sentence for the offence punishable under Section 326 of the I.P.C. is hereby set aside and modified to Section 324 of the I.P.C.; iii. Petitioner No.1 is sentenced to pay a fine of Rs.5,000/(Rupees five thousand only) and in default of fine, he shall undergo simple imprisonment for three months for the offence punishable under Section 324 of the I.P.C.; iv. Out of the fine amount, a sum of Rs.4,000/ (Rupees four thousand only) shall be paid to injured PW1 Chandrakala; and v. Registry is directed to send the records to the Courts below along with a copy of this order for further course of action.