JUDGMENT : A.P. THAKER, J. 1. Being aggrieved and dissatisfied with the impugned judgment dated 5.3.2002 passed by the Special Judge, Mehsana in Special (Atrocity) Case No. 115 of 2000 whereby the present accused has been convicted under Section 324 of the IPC with rigorous imprisonment of 3 months and fine of Rs. 500/- in default thereof imprisonment of 15 days has been imposed, the appellant-accused has preferred this Appeal. 2. It appears from the record that while admitting the Appeal, this Court has also taken suo-motu petition as to enhancement of sentence for enhancing conviction and sentence from Section 323 to Section 324 of IPC. 3. The brief facts of the prosecution case is that the complainant has filed a complaint narrating that the present accused has inflicted knife blows on him. Therefore, this complaint came to be registered against the accused under Section 3(1)(x) of the Prevention of Atrocity Act, 1989 as well as under Section 324 of IPC. 3.1 After filing of the complaint, the concerned Police Officer has investigated the case and arrested the accused. Having found sufficient evidence against the accused, the Investigating Officer has filed a charge-sheet before the concerned Court. As the offence under the Atrocity Act is triable by Special Court, the trial Court has committed the case to the Special Court i.e. Sessions Court, wherein it was registered as Special (Atrocity) Case No. 115/2000. 4. The learned Special Judge has framed charges against the accused which was explained to the accused. The accused has denied of having committed any offence and pleaded for trial. Accordingly, the prosecution has led following oral and documentary evidences:- Oral Evidences: PW No. Name Relation Exhibit PW-1 Dr. 4. The learned Special Judge has framed charges against the accused which was explained to the accused. The accused has denied of having committed any offence and pleaded for trial. Accordingly, the prosecution has led following oral and documentary evidences:- Oral Evidences: PW No. Name Relation Exhibit PW-1 Dr. Kantilal Madhabhai Parmar Medical Officer Exh.9 PW-2 Dhirajkumar Jivanbhai Soni Medical Officer Exh.11 PW-3 Revabhai Manubhai Bhangi Complainant Exh.13 PW-4 Niruben Babulal Brother Exh.14 PW-5 Pravinbhai Pitambarbhai Panch Witness Exh.15 PW-6 Bharatsinh Laxmansinh Panch Witness Exh.17 PW-7 Mahendrakumar Hargovandas Panch Witness Exh.18 PW-8 Lavjiji Ratuli Police Witness Exh.19 PW-9 Mohmadhussain Hajikhan A.S.I. Police Witness Exh.21 PW-10 Vijaysinh Motisinh Investigating Officer Exh.23 PW-11 Arjun Girdharilal Mistry Investigating Officer Exh.26 Documentary Evidences: S. No. Documents Exhibit 1 Medical Certificate issued by Visnagar Hospital Exh.10 2 Medical Certificate issued by Mehsana Hospital of Bhangi Revabhai Exh.12 3 Inquest Panchnama Exh.16 4 Depute Report Exh.20 5 The original complaint of the complainant Exh.22 6 Panchnama of weapon used by the accused Exh.24 7 Caste certificate of complainant Revabhai Exh.25 4.1 After closure of the evidence of the prosecution, the learned trial Court has also recorded further statement of the accused under Section 313 of the Criminal Procedure Code wherein also he has denied of having committed any offence. The defence has not examined any witness. 5. After hearing both the sides, the learned Special Judge has held that the offence under the Atrocity Act is not proved and considering the material on record, the accused is convicted under Section 323 instead of 324, holding that the injury sustained by the complainant was not serious but it was a simple injury and accordingly the Sessions Judge has passed the Order imposing the sentence as referred to hereinabove. 6. Being aggrieved with the impugned judgment passed by the learned Sessions Judge, the learned advocate for the appellant has preferred the Criminal Appeal No. 433 of 2002. 7. This Court has taken the matter suo-motu for convicting the accused under Section 324 instead of 323. 8. Heard Mr. C.B. Patel, learned advocate for the accused and Ms. Jirga Jhaveri, learned APP for the State. Perused the material placed on record and the impugned judgment of the trial Court and the evidence produced therein. 9. Mr. 7. This Court has taken the matter suo-motu for convicting the accused under Section 324 instead of 323. 8. Heard Mr. C.B. Patel, learned advocate for the accused and Ms. Jirga Jhaveri, learned APP for the State. Perused the material placed on record and the impugned judgment of the trial Court and the evidence produced therein. 9. Mr. C.B. Patel, learned advocate for the appellant accused has invited the attention of the Court on the oral evidence and has submitted that the entire offence is alleged to have been occurred in public place near a bus stand. He has also invited attention of the Court to the deposition of the complainant that he has specifically stated therein that at the time of incident one another person was also present at the place of offence. However, that person has not been examined nor his statement has been recorded by the prosecution. While inviting the attention of the Court as to the Medical evidence, the learned advocate has also submitted that the injury is not a serious one and it is simple injury. While inviting the attention of the Court regarding two panchanamas, one regarding the scene of panchanma and another of the recovery of weapon at the instance of the accused, the learned advocate has submitted that all the panchas regarding these panchnama have turned hostile and have not supported the case of the prosecution. 9.1 While inviting the attention of this Court, the learned advocate for the appellant has submitted that on reading evidence on record, the complainant has first approached his family and thereafter he was taken to the hospital. 9.2 Learned advocate has also submitted that the sister of the complainant name Niruben Babulal has categorically stated that the complainant has not informed her about the place of incident however she was present during the panchnama of the place of incident carried out by the Police. According to the learned advocate for the appellant, the evidence on record is not sufficient to convict the accused and the learned trial Court has failed to consider the entire evidence on record and has committed serious error of fact and law in convicting and passing the sentence against the accused. He has prayed to pass necessary order in the matter. He has prayed to pass necessary order in the matter. 9.3 The learned advocate for the appellant has also relied upon the decision in the case of Golbar Hussain and Others vs. State of Assam and Another, (2015) 11 SCC 242 . 10. Heard learned advocate Ms. Jirga Jhaveri for the Respondent State. Learned APP Ms. Jirga Jhaveri for the respondent while inviting the attention of the Court to the evidence on record and the observation made by the learned trial Court in the impugned judgment, has submitted that there is ample evidence on record to convict the accuse for the alleged offence. She has also submitted that in view of the evidence of the Doctor and the complainant as well as panchnama it is clearly found that the appellant accused has used knife while inflicting the blows near the nose of the complainant and, therefore, the offence under Section 324 is proved and accused ought to have convicted under Section 324 instead of Section 323 of IPC. Learned APP has also submitted that the judgment of conviction as rendered by learned trial Court is proper, however, the observation that the case falls under Section 323 of the IPC is erroneous. She has submitted that to that extent, the judgment is required to be modified while upholding the conviction and necessary further punishment is required to be imposed upon the accused. She has prayed to dismiss the Appeal filed by the accused and allow the suo-motu petition. 11. Having considered the submission of learned advocates for both sides and considering the material on record, it is crystal clear that the incident has happened in public place i.e. near bus stand. 12. It appears from the record that Dr. Kantibhai Madhabhai Parmar, PW-1 at Exh.9 has categorically stated in his evidence that on 3.7.2000 he was on duty and at 9.10 p.m. at night the, complainant Revabhai Manubhai was brought to the hospital for treatment and he has stated that one Abhuji Thakor had inflicted blow with knife at about 8.00 to 8.30 p.m. He has stated that on examining the complainant he found him conscious and there was an injury on the left side of his nose. The injury was 9 cm long cavity deep and as per his opinion it is possible by knife. The injury was 9 cm long cavity deep and as per his opinion it is possible by knife. He has stated that necessary treatment was given to the patient and thereafter he had referred the patient to Civil Hospital Mehsana. According to his opinion, the injury was serious one. 12.1 During his cross-examination he has denied the suggestion that history was written down by him on the statement of other relatives who were with the complainant. 13. Dr. Dhirajkumar Jivanlal Soni, PW-2, at Exh.11 has stated that when he was on duty in Civil Hospital, Mehsana on 3.7.2000 at 10.30 hours at night, Revabhai Manubhai, aged 20 years, resident of Kansa, Taluka: Visnagar was brought before him by his relatives with reference Note from the Medical Officer, Visnagar. He has stated that the patient was conscious and according to him at 8.00 p.m. knife blow was inflicted on him. He has also stated that the complainant was given primary treatment at Visnagar hospital and considering the injury on nose, he was admitted to surgical ward and necessary treatment was carried out and was discharged on 6.7.2000 in the morning at 9.00 a.m. He had no fracture of nose and considering the injury, it would take 7 to 10 days to heal. While referring to the Mark 8/5, which is an original Certificate, he has stated that the certificate is written by him and he has identified his signature below. The said Certificate is Exhibited at Exh.12 and he has stated that the injury which has been reflected at Exh.12 can be possible by the Muddamal Article No. 1 Knife. 13.1 During his cross-examination, he has stated that the patient was earlier treated in the Visnagar Hospital. He has denied the suggestion that the relatives of the complainant had given him the history. There was no fracture caused due to injury. According to his opinion, if anybody dash with the sharp weapon, injury could be possible or may not be possible. However, he does not agree to the fact that the injury could be possible if the patient fall on any sharp edged pipe. 14. There was no fracture caused due to injury. According to his opinion, if anybody dash with the sharp weapon, injury could be possible or may not be possible. However, he does not agree to the fact that the injury could be possible if the patient fall on any sharp edged pipe. 14. The complainant Revabhai Manubhai PW-3, at Exh.13, in his evidence has stated that on 3.7.2000 at 8.30 in the night, when he was sitting on the cement pipe of the Kansa bus stand, at that time as the accused came to him and ordered him to give him place as he wanted to sit and upon his denial, the accused inflicted knife blow on is nose. According to the witness, thereafter he went to his house and told what had happened to him to his sister, father-mother and other family members and thereafter they took him in the auto-rickshaw of Kalubhai Nathubahi to the Civil Hospital, Visnagar and thereafter transferred to Mehsana Civil Hospital. Thereafter, a police complaint was filed at the Visnagar Police Station and the police recorded his further statement. 14.1 During his cross-examination on behalf of the defence, he has admitted that the incident has happened in public place. That there are shops and temple near the place of occurrence. He has admitted that there were pipes lying on the road and there was pipe on which he wanted to sit and it was 4 feet above the earth. He has also admitted that it was rainy season at the time of incident and one another person was also sitting on the cement pipe. However, he has not narrated the name of the other person in his FIR. He has stated that there was no exchange of any words between him and the accused. He has also admitted that with the help of his sister and brother-in-law, he was taken to hospital and his brother-in-law had talked to the Doctor and thereafter the Doctor had treated him. He has also admitted that he has filed complaint in Mehsana and at that time his treatment was already over. According to him, he was in fit state of mind. He has submitted that he has not narrated name of the father of the accused. He has also admitted that he has filed complaint in Mehsana and at that time his treatment was already over. According to him, he was in fit state of mind. He has submitted that he has not narrated name of the father of the accused. While admitting the fact that there is a criminal case against him filed by one Karsanji Mohanji but he is not knowing that Karsanji who is maternal uncle of the accused. He has also denied that as a counterblast he has filed the present complaint against the accused. However, he has denied the suggestion that he had fallen down from the heaps of the pipe and due to that he has sustained injury. 15. On perusal of evidence of Niruben Babulal, PW-4, at Exh.14, who is sister of the complainant, has stated that at the time of incident she was at home and she came to know the fact when his brother i.e. complainant when he came home and narrated the incident. Thereafter, they took the complainant for primary treatment at Visnagar Civil Hospital and thereafter he was shifted to Mehsana Civil Hospital. 15.1 During her cross-examination, she has stated that at the time of incident she was at her home with family and the incident has happened when her brother had gone out. She has stated that when her brother returned home from the place of incident, his nose oozing blood and they took him to the hospital and during that time while they were going to the hospital, his brother was conscious. She has stated that their residence is far away from the place of the occurrence. She has stated that her brother has not informed her about the place of occurrence. Of course, she has stated that when the Police prepared the Panchnama of the place of occurrence of incident, she was present and therefore she came to know where the incident had happened. 16. It appears from the evidence of PW-5, at Exh.15, that he is a panch of the panchnama of the scene of offence. At the time of drawing panchnama, the place of occurrence was shown by Niruben Babulal Motilal and the said place is a public place. According to him, Panchnama was prepared by the Police. 16. It appears from the evidence of PW-5, at Exh.15, that he is a panch of the panchnama of the scene of offence. At the time of drawing panchnama, the place of occurrence was shown by Niruben Babulal Motilal and the said place is a public place. According to him, Panchnama was prepared by the Police. 16.1 During his cross-examination he has stated that the police had prepared the panchnama and has only put his signature on it and he does not know the contents of the Panchnama. 17. On perusal of the evidence of Police witness Mr. Bharatsinh Laxmansinh, PW-6, at Exh.17, it is revealed that he is a signatory of the panchnama and has supported the prosecution case that the weapon used in the incident has been produced by the accused in their presence. He has denied the suggestion that no knife was seized and it was not sharp edge. 18. On perusal of witness Mr. Mahendrakumar Hargovanlal, PW-7, at Exh.18, who is panch witness, has not supported the prosecution case that the accused has produced knife used for commission of offence. He identified his signature on Panchnama and denied the contents of the panchnama. He denied that the edge of the knife was sharp. 19. It appears from the evidence of the witness Lajiji Ratuji, PW-8, at Exh.19, that at the relevant time he was serving in the Visnagar Police Station and at 22.15 hrs at night, the complaint was received by him and on that basis he made entry in the relevant Register and thereafter he handed over the investigation to PSI Mr. Vaghela. During his cross-examination, he has admitted that there was no certificate of Schedule Caste or Schedule Tribe with the FIR and there is nothing in the complaint that the abusive language was used. That the complainant and the accused are knowing each other and he has also stated that the incident had happened in public place. 20. Mohammedhusain Hajikhan, Police witness, PW-9, at Exh.21, has categorically stated that on 3.7.2000 he was on night duty at the Civil Hospital Mehsana and at that time Dr. D.G. Soni had informed that a patient has been referred from Civil Hospital Visnagar and he went to the Hospital and recorded the statement of the complainant and thereafter obtained the signature and sent it to the concerned Police Station. D.G. Soni had informed that a patient has been referred from Civil Hospital Visnagar and he went to the Hospital and recorded the statement of the complainant and thereafter obtained the signature and sent it to the concerned Police Station. He has produced the said complaint at Exh.22. 20.1 During his cross-examination, he had admitted that before he took the complaint of the complainant at Exh.22, the complainant was admitted in surgery ward and he was in conscious condition wherein he has not narrated anything regarding the accused. He has also admitted that the complainant has not narrated the name of the father of the accused. 21. On perusal of evidence of Vijaysinh Motisinh Vaghela, PW-10 at Exh.23, it appears that at the relevant time he was PSI, Visnagar Police Station, the investigation was handed over to him. He has stated that he prepared the panchnama in presence of Niruben and other panchas and on 5.7.2020 as per the version of the accused, the accused has produced the knife with which the offence occurred. He has specifically stated that panchnama was prepared in present of the Panchas and the signatures of the Panchas were obtained then and there. He has also submitted that the caste certificate of the accused produced at Exh.25. 21.1 During his cross-examination he has admitted that the place of occurrence is a public place and during his investigation he has not obtained any caste certificate of the complainant. He has admitted that during the investigation nobody has stated anything regarding atrocity and if there is offence under the Atrocity Act, then it is to be investigated by higher officer not less than the rank of Dy. S.P. 22. On perusal of the evidence of Arjun Girdharilal Mistri, PW-11, at Exh.26, who was a Dy. S.P. at the relevant time, has stated that since he got the investigation of this case, he recorded the statement of witnesses and as there was sufficient evidence against the accused, he filed charge-sheet. During his cross-examination he has adhered to her version of the chief-examination. 23. Now, on reading of the entire evidence, it clearly transpires that there is no dispute with regard to the injury caused to the complainant. It is also admitted that that as per the evidence of Doctor at Mehsana Civil Hospital, injury was of simple nature. During his cross-examination he has adhered to her version of the chief-examination. 23. Now, on reading of the entire evidence, it clearly transpires that there is no dispute with regard to the injury caused to the complainant. It is also admitted that that as per the evidence of Doctor at Mehsana Civil Hospital, injury was of simple nature. At this stage it is required to be observed that in case of grievous injury, Section 320 would apply. Section 320 of the IPC reads thus: “320. Grievous hurt - The following kinds of hurt only are designated as grievous: First - Emasculation. Secondly - Permanent privation of the sight of either eye. Thirdly - Permanent privation of the hearing of either ear. Fourthly - Privation of any member or joint. Fifthly - Destruction or permanent impairing of the powers of any member or joint. Sixthly - Permanent disfiguration of the head or face. Seventhly - Fracture or dislocation of a bone or tooth. Eighthly - Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain or unable to follow his ordinary pursuits.” 23.1 On scrutiny of provisions of Section 320, it is found that there are 8 category, which if inflicted it would come within the meaning of “grievous hurt.” If we peruse, the material on records, it is found that none of the aforesaid injuries are alleged in the complaint nor any evidence is produced to that effect. It is not the case of the prosecution that due to such injury there was permanent disfiguring of the face of the complainant. Therefore, considering the evidence on record it is clearly found that there is no grievous injury caused to the complainant which may come within the provisions of Section 320 of the IPC. Therefore, the observation of the learned trial Court regarding the nature of the injury which was a simple injury is sustainable in the eyes of law. 24. Now the next question is whether the injury caused to the complainant comes within Section 323 or 324. Therefore, the observation of the learned trial Court regarding the nature of the injury which was a simple injury is sustainable in the eyes of law. 24. Now the next question is whether the injury caused to the complainant comes within Section 323 or 324. The provisions under Section 323 and 324 of the IPC, read thus: “Section 323 - Punishment for voluntarily causing hurt - Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both. 324. Voluntarily causing hurt by dangerous weapons or means - Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.” 25. On scrutiny of both the provisions, it is crystal clear that in Section 323 of the IPC, the injury must be very simple injury and there is no evidence of any weapon being used. However, Section 324 narrates that the injury ought to have been caused by any dangerous weapon. Now in this case, it is the case of the prosecution that the injury was caused by knife. Therefore, at the first instance it may appear that the accused is required to be convicted under Section 324 of the IPC. But for that purpose prosecution has to lead evidence to establish that knife was used. Now, in this case, on perusal of the panchnama of the recovery of the knife, it appears that it has been narrated in the Panchnama that the accused has stated to produce knife used in the commission of offence. But for that purpose prosecution has to lead evidence to establish that knife was used. Now, in this case, on perusal of the panchnama of the recovery of the knife, it appears that it has been narrated in the Panchnama that the accused has stated to produce knife used in the commission of offence. It is pertinent to note that when the accused narrated such facts and discovered knife, he was in police custody. Therefore, it will hit by Section 27 of the Evidence Act and not helpful to the prosecution. It also appears from the record that the knife which is said to be used is only 6 inch knife. Of course, the Doctor has stated that it is possible to have injuries on the nose as caused to the complainant by this weapon. But if we peruse the medical paper, it is found that there is no mention as to sharp edged weapon. Therefore, use of muddamal knife by the accused is doubtful. 26. Now considering entire evidence on record, it clearly transpires that the evidence on record is not cogent and reliable to convict the accused of any offence as the complainant though he was knowing accused, from very beginning, as they are residing in the same vicinity, he has not given the name of the father of the accused. It also appears from the record that one person who is said to be the person who was sitting with the complainant, on the heap of pipe, has not been examined by the prosecution. Of course, it is the statement of the complainant that he has not given the name of the said person to the police. It is the responsibility of the Investigating Officer to investigate the matter from all angles when the complainant himself has stated in his evidence that one other person was there at the time of incident, the evidence of such other independent person is required. 27. Considering the evidence on record the evidence on record is not cogent, reliable and trustworthy. Therefore, this Court is of the considered view that even the conviction order passed by the learned trial Court under Section 323 is not sustainable in the eyes of law. When the conviction under Section 323 is not sustainable, there cannot be any enhancement of the sentence. Therefore, this Court is of the considered view that even the conviction order passed by the learned trial Court under Section 323 is not sustainable in the eyes of law. When the conviction under Section 323 is not sustainable, there cannot be any enhancement of the sentence. In view of the above, the impugned judgment of the learned trial Court is liable to be quashed and set-aside. 28. This appeal is allowed. The impugned judgment and order dated 15.3.2002 passed by learned Special Judge, Mehsana in Special (Atrocity) Case No. 115 of 2000 is quashed and set aside. The suo-motu petition for enhancement of sentence is disposed of accordingly. The appellant-accused is acquitted of all the charges levelled against him. Fine, if any paid, be refunded to the accused. Bail bond, if any, stands cancelled. Record and Proceedings be sent back to the concerned trial Court forthwith.