JUDGMENT : 1. Heard Mr. M. Nath, learned counsel for the accused-appellant. Also heard Mr. P.S. Lahkar, learned Additional Public Prosecutor for the State/respondent. 2. This is an appeal under Section 374 Cr.P.C. preferred by the accused/appellant against the judgment and order dated 30.03.2011 passed by the ld. Sessions Judge, Karimganj in Sessions Case No. 63/2008, whereby the accused/appellant was convicted to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,000/-in default stipulation, under Section 323 IPC. 3. The brief facts of the case is that on 22.10.2007, Md. Ahiya Ahmed lodged an FIR before the O/C, Ratabari police station stating interalia that accused/appellant Mongal Singh @ Mangal Singh used to commute by breaking the boundary fence of their premises and his younger brother used to resist him and out of grudge, on 20.10.2007 at about 6 p.m., the accused/appellant came to the river bank near the playground of Chamtilla village, where his younger brother Md. Ashik Ahmed was defecating and abused him by using filthy language and also the accused assaulted him with an iron rod causing injuries on his head and other parts of his body. Upon hearing scream raised by his younger brother, people rushed to the spot and saved him and he was taken to Govt. hospital for treatment. FIR was lodged accordingly. 4. On receipt of the FIR, a case was registered vide Ratabari P.S. Case No. 105/2007 under Sections 341/325 IPC and investigation was started. During investigation, the investigating officer visited the place of occurrence and recorded the statements of the witnesses as well as seized one iron rod and one piece of plastic chappal belonged to the accused. After completion of investigation, charge-sheet was submitted against the accused/appellant under Sections 341/325/307 IPC before the court of JMFC, Karimganj. As the offence under Section 307 IPC is exclusively triable by the court of Sessions, the case was committed accordingly for trial. 5. During trial, the accused put his appearance before the court and charge was framed under Sections 341/325/307 IPC which was read over and explained to the accused/appellant to which he pleaded not guilty and claimed to be tried. 6. To prove the guilt of the accused, the prosecution examined seven witnesses and marked exhibits and material objects. On the other hand, the accused/appellant did not choose to adduce any evidence in support of his case. 6. To prove the guilt of the accused, the prosecution examined seven witnesses and marked exhibits and material objects. On the other hand, the accused/appellant did not choose to adduce any evidence in support of his case. After completion of trial, the statement of the accused was recorded under Section 313 Cr.P.C., wherein incriminating materials found in the evidence of the witnesses put before him to which he denied the fact and further stated that he did not commit any offence and he has been falsely implicated in this case. After hearing both sides, the ld. Sessions Judge had convicted the accused/appellant as aforesaid. Hence, this appeal. 7. The ld. Counsel for the appellant has argued that the ld. Trial court failed to appreciate the evidence of witnesses. On careful perusal of the evidence of witnesses, it can be assumed that there was practically no eye witness to the incident and the conviction was based on purely conjecture and surmises and which is liable to be set aside. 8. It is also the submission of the learned counsel for the appellant that although witnesses examined by the prosecution are from same family and therefore, interested witnesses. No independent witnesses were examined in this case which is fatal to the prosecution. 9. Alternative submission of the learned counsel for the appellant is that the appellant was convicted under Section 323 IPC which appears to be voluntarily causing hurt and moreover, in the offence like simple injury, fine may also be imposed which is permissible in law. 10. In support of his submission, the learned counsel for the appellant has placed reliance on the following case laws-(i) Criminal Appeal No. 536/2021 (Surendran –vs-Sub-inspector of police) (ii) 2018 vol.1 GLT 50 (Chakradhar Gogoi –vs- State of Assam). 11. On the other hand, the learned Additional Public Prosecutor has submitted that there are two eye witnesses to the incident and they have supported the case of the prosecution by stating that they had seen the accused/appellant Mangal Singh while assaulting the victim with a rod. Though, the charge was framed under Section 307 IPC but the ld. Trial Court has properly discussed the evidence of the witnesses, convicted the accused/appellant under Section 323 IPC and the ld. Trial Court has rightly convicted the accused/appellant under proper section of law which needs no interference. 12. Though, the charge was framed under Section 307 IPC but the ld. Trial Court has properly discussed the evidence of the witnesses, convicted the accused/appellant under Section 323 IPC and the ld. Trial Court has rightly convicted the accused/appellant under proper section of law which needs no interference. 12. I have considered the rival submissions for the parties and also I have gone through the record of Sessions Case No. 63/2008 including the evidence of the witnesses as well as the judgment of the trial court. 13. PW1 is the informant who is also the brother of the victim. He deposed in his evidence that on 20.10.2007, he was at Chaam Tilla in front of a shop. At that time, after hearing hue and cry, he went ahead to the place of occurrence and saw Moinuddin and Niaz carrying his brother Ashik Ahmed in injured condition. He had noticed injuries on the head of his brother, blood was oozing out from his injuries. On being asked Moinuddin and Niaz told him that accused Mangal Singh assaulted his brother by means of a rod and his brother also told him that he was assaulted by Mangal with a rod. The injured was taken to Durlav Cherra Hospital and subsequently he was referred to Karimganj Hospital. Thereafter, he lodged the FIR, vide Exhibit 1. The police seized one iron rod and chappal which was left by the accused vide seizure list Exhibit 2. 14. In his cross-examination, PW1 replied that on the date of incident, it was Navami Durga Puja and the villagers came out to celebrate Durga Puja. He heard shouts of Moinuddin and Niaz. Other persons also came to the spot. He did not know the names all of them. He took rod and chappal from the hands of his brother and no blood stain was found in the rod. There was profuse bleeding from the head of his brother. The house of the accused is less than 1 km from the place of occurrence towards north-east. 15. PW2 is the victim Ashik Ahmed. From his deposition, it reveals that on 20.10.2007 around 5 p.m., he was proceeding towards Durlav Cherra with Niaz and Moinuddin. When they reached near Chaam Tilla play ground, he felt call of nature and he went to attend and at the time when he was returning, he found accused Mangal Singh was proceeding towards playground. From his deposition, it reveals that on 20.10.2007 around 5 p.m., he was proceeding towards Durlav Cherra with Niaz and Moinuddin. When they reached near Chaam Tilla play ground, he felt call of nature and he went to attend and at the time when he was returning, he found accused Mangal Singh was proceeding towards playground. He asked him as to which place he was proceeding but he did not reply. Just before crossing him, the accused assaulted him with an iron rod. When the accused took another attempt to assault him, then he turned around and caught hold of the rod. He sustained head injuries. The accused went away when his friends came and he left the rod and a chappal. His friends saved him, otherwise the accused would have killed him. Thereafter, some people arrived there including Pakhi Mian. The victim also alleged that the accused used to go to the house of his neighbour Kartik Rabi Das through his homestead and on being objected to it by him, he did not pay heed to him. As aggrieved by his objection, the accused had assaulted him. 16. In his cross-examination, PW2 replied that it was Durga Puja Navami day when the incident occurred. Niaz and Moinuddin were waiting on the road when he went to attend call of nature. He went to a place about 50/60 cubits away there from and on return after 10/20 cubits, he saw the accused coming alone towards him and he was wearing white ganjee and one gamocha and another gamocha was fastened on his head. He allowed the accused to pass him and just before crossing him, he was assaulted by the accused from behind causing injuries on his head. Then he turned around and caught hold of the rod. Thereafter, he raised alarm, Moinuddin and Niaz came and the accused went away leaving the rod on the spot. Around 7/10 days before the incident, he objected to the act of the accused. 17. PW3 is Md. Moinuddin, one of the eye witnesses to the incident. He deposed before the court that on 20.10.2007 in the afternoon, the incident occurred. It was Durga Puja time. He was waiting for Ashik and Niaz and they were proceeding towards Durlav Cherra. When they reached near playground at Chaam Tilla, the victim felt call of nature and he went to attend. He deposed before the court that on 20.10.2007 in the afternoon, the incident occurred. It was Durga Puja time. He was waiting for Ashik and Niaz and they were proceeding towards Durlav Cherra. When they reached near playground at Chaam Tilla, the victim felt call of nature and he went to attend. They were waiting on the road at a distance of 50/60 cubits away from the place to which the victim had gone. Suddenly, he heard shouts raised by Ashik that his head was cracked by the accused Mangal. He went with Niaz near the place and they saw accused and Ashik in a scuffle over a rod. The accused left the rod and went away before they arrived at the place of occurrence. Ashik sustained injuries over his head, blood was oozing out from his injuries. They took the injured to the hospital. 18. In his cross-examination, PW3 replied that they proceeded Durlav Cherra, just when evening time was started. It was Saturday. They saw Ashik scuffling with rod and he was in standing position when the scuffle was going on. They saw the accused going towards river when they were standing position. He could not say who took the rod and chappal to the house of the injured. At that time, the river was not flooded with water. They crossed the river by boat. 19. PW4 Niaz Ahmed, who is another eye witness to the incident. According to him, on the day of the incident, he was proceeded towards Durlav Cherra with Ashik and Moinuddin. When they reached near the playground at Chaam Tilla, Ashik felt call of nature and went to attend to a corner of that playground. He was waiting on the road side with Moinuddin. The accused passed by in front of them towards the field. Thereafter, he heard shouts raised by Ashik and they saw the accused and Ashik scuffling with a rod and the victim was bleeding. They rushed to the place of occurrence, then the accused went away by leaving the iron rod there. On being asked, Ashik reported that the accused assaulted him with a rod causing injury on his head. The inured was taken to the hospital. The police seized the rod and plastic chappal by preparing seizure list and he put his signature in the said seizure list vide Ext. 2(3). 20. On being asked, Ashik reported that the accused assaulted him with a rod causing injury on his head. The inured was taken to the hospital. The police seized the rod and plastic chappal by preparing seizure list and he put his signature in the said seizure list vide Ext. 2(3). 20. In his cross-examination, PW4 replied that he could not say what was the time but it was in the evening. The injured went away to a place about 50 cubits where they were standing. They saw Ashik facing towards them when they had heard the shouts of Ashik. Ashik was wearing shirt and pant. The police did not seize the blood stained shirt. At the time of occurrence some lights were there. The place where the inured was sitting was visible from the place where they were standing but he did not see whether Ashik was struck while he was sitting or standing. 21. PW5 is the reported witness. He was not present when the incident took place. He deposed in his evidence that on the day of the incident at about 5.30 p.m., he was standing in front of his shop at Chaam Tilla. He then had heard hue and cry and ran towards the place with Yahiya Ahmed. He saw Ashik Ahmed was lying on the ground with injury on his head. On being asked, he told that the accused Mangal Singh had caused such injuries. The injured was taken to Durlav Cherra Hospital for treatment. 22. In his cross-examination, PW5 replied that the neighouring people came to the place after hearing hue and cry. His shop is situated on the front side of the house of Sankar and Jelev. 23. PW6 is the investigating officer who deposed in his evidence that on 22.10.2007, he had received one ejahar from one Yahia Ahmed of village Pheti Path. He had registered a case under Sections 341/325 IPC. He had started investigation and during investigation he visited the place of occurrence and sent the injured to Durlav Cherra Hospital. He had examined the complainant and other witnesses including the injured person. He had seized one iron rod by which the accused assaulted Ashik. He also seized one piece of plastic chappal which was left at the place of occurrence, belonged to the accused vide Ext. 2. During investigation, he also collected injury report from Durlav Cherra Hospital. He had examined the complainant and other witnesses including the injured person. He had seized one iron rod by which the accused assaulted Ashik. He also seized one piece of plastic chappal which was left at the place of occurrence, belonged to the accused vide Ext. 2. During investigation, he also collected injury report from Durlav Cherra Hospital. On completion of investigation, he had submitted charge-sheet against the accused Mangal Singh under Sections 341/325/307 IPC. 24. In his cross-examination, PW6 replied that the witnesses were examined in the house of the complainant and he called the witnesses as per the statement of the injured and complainant. The victim himself handed him over a piece of rod and a piece of plastic chappal. The injured brought the articles from his house. The injured himself told him that the chappal belonging to the accused and the rod was used by the accused while assaulting him. 25. On careful perusal of the evidence of the witnesses, it appears that though at time of the incident, PW2 and PW3 were present but they were standing 50/60 cubits away from the place where the incident occurred. According to PW2, he was assaulted by the accused Mangal Singh with an iron rod causing injuries on his head. PW3 and PW4 have also supported the fact by stating that they had seen accused Mangal near the place of occurrence with an iron rod. It is true that there are some contradictions in the evidence of the witnesses how the incident occurred but both PW3 and PW4 were categorical by stating that the victim sustained injuries on his head and they saw the accused Mangal and the victim scuffling over a rod and the accused left the rod and ran away. From the cross-examination of PW4, it discloses that he did not see whether the victim was struck while he was sitting or standing position. Though PW3 and PW4 were not specific how the incident occurred but it is not disputed that the accused was present when the incident occurred and the victim sustained injury on his head caused by the appellant/accused. 26. The Medical Officer Dr. Banani Bhattacharjee was examined in the case as PW7. She deposed in her evidence that on 20.10.2007, she was working at Durllav cherra Mini PHC. 26. The Medical Officer Dr. Banani Bhattacharjee was examined in the case as PW7. She deposed in her evidence that on 20.10.2007, she was working at Durllav cherra Mini PHC. On that day, at about 6.30 p.m., she examined one Ashik Ahmed on police requisition and on examination, she found a fresh cut in scalp back side approximately 6 cm long, probably made by a blunt weapon. Injury was grievous in nature and 6 stitches were given. As the patient complained of vomiting next day, he was referred to Silchar Medical College and Hospital. 27. In her cross-examination, PW7 replied that there is no mention as to the depth and width of the injury. The injury as stated could be caused by fall. 28. Though the Medical officer opined that the injury was grievous in nature but the ld. Trial Court had discussed thoroughly about grievous injuries by referring Section 320 IPC. As the injury sustained by the victim does not fall into the category of grievous in nature as per Section 320 IPC, so that the accused/appellant was convicted under Section 323 IPC. 29. So far as the submission that the witnesses are interested and relative/family member is concerned, it is settled legal position that when the statement of witnesses, who are relatives or known to the affected party, is credible, reliable, trustworthy, admissible in accordance with the law and corroborated by other witnesses or documentary evidence of the prosecution, there would hardly be any reason for the Court to reject such evidence merely on the ground that the witness was family member of the deceased or victim or interested witness or person known to the affected party. There can be cases where it would be but inevitable to examine such witnesses, because, as the events occurred, they were the natural or the only eye witness available to give the complete version of the incident. Close relative of the deceased or victim would normally be most reluctant to spare the real culprit and falsely implicate an innocent one. 30. Close relative of the deceased or victim would normally be most reluctant to spare the real culprit and falsely implicate an innocent one. 30. In the case of Namdeo v. State of Maharashtra, reported in (2007) 14 SCC 150 , it was held that it is also settled that testimony of eye-witnesses, which is otherwise convincing and consistent, cannot be discarded simply on the ground that the deceased was related to the eye-witnesses or previously there had been some disputes between the accused and the deceased or the witnesses. 31. In the case in hand, PW2 is the victim and PW3 and PW4 who claimed to be eye witnesses to the incident were no way related to the incident. None of witnesses has stated that PW3 and PW4 are the family members of the victim. Only suggestion has been put to the witnesses that they were cousin of the victim as such, they had falsely stated against the accused. 32. It is true that the rod and chappal were kept in the house of the injured. Both the articles were handed over to the police by the injured himself but it is not known who kept those articles in the house of the injured from the place of occurrence. As per evidence of the witnesses including the victim that he was assaulted by the accused/appellant with a rod and PW3 and PW4 also supported the fact and which was subsequently seized in connection with the incident. It cannot be said that such seizure has no value in the eye of law. 33. So far as the submission regarding minor contradictions, variations, omissions, discrepancies and improvement made by the prosecution witnesses at the stage of evidence is concerned, it is settled position of law that minor contradictions, variations, omissions, discrepancies and improvements in the evidence of any witness cannot be attached undue importance to discard the entire prosecution case if otherwise on vital aspects or on core of the prosecution case, the testimony of such witness or witnesses is found truthful, reliable and trustworthy. 34. As I have already stated that there are some contradictions in evidence of PW3 and PW4 as to how the incident occurred, but both the witnesses had categorically stated that they had noticed accused with iron rod scuffling with the victim and as a result of which, victim had sustained injuries on his head. 35. 34. As I have already stated that there are some contradictions in evidence of PW3 and PW4 as to how the incident occurred, but both the witnesses had categorically stated that they had noticed accused with iron rod scuffling with the victim and as a result of which, victim had sustained injuries on his head. 35. As regards sentence imposed upon the appellants is concerned, it is always a difficult task requiring balancing of various considerations. The question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in the individual cases. 36. It is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of offence and the manner in which it was executed or committed. It is obligation of court to constantly remind itself that right of victim, and be it said, on certain occasions person aggrieved as well as society at large can be victims, never be marginalized. The measure of punishment should be proportionate to gravity of offence. Object of sentencing should be to protect society and to deter the criminal in achieving avowed object of law. Further, it is expected that courts would operate the sentencing system so as to impose such sentence which reflects conscience of society and sentencing process has to be stern where it should be. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against individual victim but also against society to which criminal and victim belong. Punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality which the crime has been perpetrated, enormity of crime warranting public abhorrence and it should 'respond to the society's cry for justice against the criminal'. [Vide: (i) (Sumer Singh vs. Surajbhan Singh and others, (2014) 7 SCC 323 , (ii) Sham Sunder vs. Puran, (1990) 4 SCC 731 , (iii) M.P. v. Saleem, (2005) 5 SCC 554 , (iv) Ravji v. State of Rajasthan, (1996) 2 SCC 175 ]. 37. In view of above propositions of law, the paramount principle that should be the guiding laser beam is that punishment should be proportionate to gravity of offence. 38. 37. In view of above propositions of law, the paramount principle that should be the guiding laser beam is that punishment should be proportionate to gravity of offence. 38. Applying the principles laid down by the Apex Court in the aforesaid judgments and having regard to the totality of facts and circumstances of case, nature of offence and the manner in which it was executed or committed, I am of the opinion that the sentence imposed upon the accused/appellant in the instant case is somehow harsh as the offence under Section 323 IPC is dealt with simple injury. Though the victim sustained injuries on his head which is a vital part of the body but as per medical report, he sustained a cut injury caused by blunt object and the ld. Trial court also held that the injury caused by the victim was simple in nature. It also appears from the record that the case was pending in the court since 2011, more than 10 years and the trauma which the accused/appellant was facing during last 10 years, which cannot be ignored. 39. It is submitted by the learned counsel for the accused/appellant that the accused was in jail for more than one month. Findings of the ld. Trial Court regarding guilt of the accused/appellant for the offence under Section 323 IPC are based on correct appreciation of facts, evidence and law. There is no illegality or infirmity in the impugned judgment and order. Minor contradictions found in the evidence of witnesses are not of such nature which may place PW3 and PW4, in the category of unreliable witnesses. 40. Considering entire aspects of the matter and looking to the circumstances, under which the present offence has been committed, I am of the view that some modifications are required on sentence, one year imprisonment is reduced to one month but sentence of fine will remain as same and the period which he detained in custody shall be set off from the period of imprisonment imposed on him. However, the accused/appellant is directed to pay the fine amount before the trial court. 41. In the result, appeal is partly allowed with aforesaid modification and disposed of accordingly. 42. Send back the LCR.