JUDGMENT (Prayer: Criminal Revision Case is filed under Section 397 & 401 of Cr.P.C., to set aside the judgment of the Learned I Additional District and Sessions Judge, Salem in Crl.A.No.88 of 2014 dated 09.07.2015 confirming in respect of the petitioner alone from Judgment of the Judicial Magistrate No.1, Sankari in C.C.No.94 of 2008 dated 30.06.2014 is liable to be set aside and the petitioner may be acquitted entirely.) 1. The revision petitioner is the 2nd accused in C.C.No.94 of 2008 on the file of Judicial Magistrate No.1, Sankari. The petitioner along with three other accused persons were tried in a case registered by the respondent police in Crime No.2 of 2007 dated 05.01.2007. 2. Based on the complaint given by Manthiri S/o.Iyyamperumal alleging that, due to property dispute and pendency of case, on 04.01.2007 at about 3.00 p.m when he was weeding out grass in his field, Kandasamy (A-1) came to his field and scolded him with abusive language for supporting one Thangavel. Chandran (A-3) and Arul Prakasam (A-4) held him and punched on his back. Venga Gounder (A-2), the petitioner herein attacked him with Koduval on his right side shoulder. On hearing his scream, Thangavel and Mariappan rush to the seen. All the four accused left the place threatening him that they will not allow him to live. Manthiri was taken to Edappadi Government Hospital for treatment. On reference for further treatment, he was admitted at Salem Government Hospital. The Sub Inspector Police got intimation from the hospital and has gone to the hospital and recorded the statement on 05.01.2007 and registered a case under Section 294(b), 341, 324 and 506(ii) at 17.30 hrs. 3. On completion of investigation, final report filed alleging that A1 committed offences under Section 447, 294(b), 506(ii) of I.P.C, A2 committed offence under Section 447, 326 and 506(ii) of I.P.C and A3 & A4 committed offences under Section 447, 341, 323 and 506(ii) of I.P.C. 4. To prove the charges, the prosecution has examined 10 witnesses and marked 8 exhibits. 5. The Trial Court held A1 & A2 guilty of offences under Section 325 I.P.C. A3 guilty of offences under Section 341 and 325 of I.P.C. A4 guilty of offence under Section 341 of I.P.C and sentenced them to undergo following punishment and acquitted from other charges. 5. The Trial Court held A1 & A2 guilty of offences under Section 325 I.P.C. A3 guilty of offences under Section 341 and 325 of I.P.C. A4 guilty of offence under Section 341 of I.P.C and sentenced them to undergo following punishment and acquitted from other charges. Charges framed Findings Conviction and Sentence passed by the Trial Court in C.C.No.94 of 2008 A1 Under Sections 447, 294(b), 506(ii) of I.P.C 325 IPC U/s 325 IPC S.I for 2 years with Fine Rs.3500/- i/d S.I for 6 months A2 Under Sections 447, 326, 506(ii) IPC 325 IPC U/s 325 IPC S.I for 2 years with Fine Rs.3500/- i/d S.I for 6 months A3 447, 341, 323, 506 (ii) IPC 341, 325 IPC U/s 341, 325 IPC S.I for 2 years with Fine Rs.3500/- i/d S.I for 6 months u/s 325 IPC and Fine Rs.500/- I/d S.I for 1 month u/s 341 IPC A4 447, 341, 323, 506(ii) IPC 341 IPC U/s 341 IPC Fine Rs.500/- I/d S.I for 1 month 6. Aggrieved by the sentence and conviction all the four accused preferred appeal before the 1st Additional District and Sessions Judge, Salem and came to be heard in C.A.No.88 of 2014. The Appellate Court, on reappreciating the evidence allowed the appeal partly. 7. The conviction of A1 & A3 for offence under Section 325 of I.P.C was set aside and acquitted. The conviction and sentence imposed on A2 for offence under Section 325 was confirmed. The conviction imposed on A3 & A4 for offence under Section 341 of I.P.C was confirmed. Charges framed Conviction and Sentence passed by the Trial Court in C.C.No.94 of 2008 Conviction and Sentence passed by the Appellate Court in C.A.No.88 of 2014 A1 Under Sections 447, 294(b), 506(ii) of I.P.C U/s 325 IPC S.I for 2 years with Fine Rs.3500/- i/d S.I for 6 months Conviction under Section 325 of I.P.C is set aside. A2 Under Sections 447, 326, 506(ii) IPC U/s 325 IPC S.I for 2 years with Fine Rs.3500/- i/d S.I for 6 months Confirmed under Section 325 of I.P.C is confirmed. A2 Under Sections 447, 326, 506(ii) IPC U/s 325 IPC S.I for 2 years with Fine Rs.3500/- i/d S.I for 6 months Confirmed under Section 325 of I.P.C is confirmed. S.I for 2 years with Fine Rs.3500/- i/d S.I for 6 months A3 447, 341, 323, 506 (ii) IPC U/s 341, 325 IPC S.I for 2 years with Fine Rs.3500/- i/d S.I for 6 months u/s 325 IPC and Fine Rs.500/- I/d S.I for 1 month u/s 341 IPC Conviction under Section 325 of I.P.C is set aside. However, conviction under Section 341 of I.P.C is confirmed . Fine Rs.500/- I/d, S.I for 1 month under Section 341 of I.P.C. A4 447, 341, 323, 506(ii) IPC U/s 341 IPC Fine Rs.500/- I/d S.I for 1 month Conviction under Section 341 of I.P.C is confirmed . Fine Rs.500/- I/d S.I for 1 month under Section 341 I.P.C 8. Aggrieved by the said finding, the 2nd accused found guilty for offence under Section 325 of I.P.C and sentenced to undergo two years S.I and fine of Rs.3,500/-, in default, 6 months S.I., is before this Court by way of revision. 9. The Learned Counsel appearing for the revision petitioner submitted that the Court below ought to have acquitted the petitioner (A-2) from the charge under Section 325 of I.P.C since he was tried only for offence under Section 326 of I.P.C and not for Section 325 of I.P.C. The prosecution has not produced the weapon alleged to have caused grievous hurt by the petitioner. After taking note of the fact that the material object not produced instead of acquitting the accused for charge offence under Section 326 of I.P.C, the Trial Court has altered the charge and convicted him for offence under Section 325 of I.P.C without any specific charge under Section 325 of I.P.C. 10. At the outset, this Court wish to record, though the charge framed for graver offence, in the light of the evidence punishment is imposed for lesser offence but altering the Sections. However, Sections 325 and 326 of I.P.C of I.P.C being cognate offence, this Court finds no error in holding the accused for lesser offence. 11. As far as appreciation of evidence, the Learned Counsel submitted that the discrepancy in the evidence of prosecution witnesses regarding the time of occurrence not been considered by the Courts below. However, Sections 325 and 326 of I.P.C of I.P.C being cognate offence, this Court finds no error in holding the accused for lesser offence. 11. As far as appreciation of evidence, the Learned Counsel submitted that the discrepancy in the evidence of prosecution witnesses regarding the time of occurrence not been considered by the Courts below. While P.W.1, the victim has deposed before the Court that the occurrence took place in the morning at 10.00 a.m. The other two witnesses P.W.2 and PW.3 alleged to be eye witnesses had stated that the occurrence took place at 3.00 p.m. This contradictions regarding the time of occurrence is vital and fatal to the prosecution case. 12. The Courts below has given undue weightage to the evidence of P.W.4 [Chinnappan] relying on the cross examination. In the chief examination, he has stated that, he heard about the incident but not seen the incident. This was overlooked by the Courts below. 13. The Learned Counsel appearing for the petitioner submitted that when the weapon not seized and no explanation given by the Police for non-seizure of the weapon, the contradictory evidence of so called eye witnesses cannot be believed. The Courts below erred in believing their evidence to render conviction. 14. Per contra, the Learned Government Advocate (Crl.Side) for the respondent submitted that, P.W.1 [Manthiri] is the injured witness, who had spoken about the incident. Though, he had stated in his chief examination that the incident occurred at 10.00 a.m., two years prior to the date of deposition and stated that Arul Prakasam attacked him with Aruval and other three accused attacked him with hands and legs all over his body, he was not cross examined by the accused. The rest of the prosecution witnesses to the occurrence namely P.W.2 [Thangavel], P.W.3 [Mariappan] and P.W.4 [Chinnappan] have spoken about the occurrence and the overt act of (A2) the petitioner causing cut injury on the back side shoulder of P.W.1. The injury sustained by P.W.1 [Manthiri] spoken by P.W.7 Dr.Kumudha, who admitted P.W.1 in the hospital and issued wound certificate (Ex.P.3). P.W.6 Dr.Thangarajan, Radiologist, who has taken the X-ray (M.O.1), had opined that, the injury has caused fracture and therefore, conviction of the accused persons for wrongful restrain and voluntarily causing grievous hurt is sustainable. 15. The injury sustained by P.W.1 [Manthiri] spoken by P.W.7 Dr.Kumudha, who admitted P.W.1 in the hospital and issued wound certificate (Ex.P.3). P.W.6 Dr.Thangarajan, Radiologist, who has taken the X-ray (M.O.1), had opined that, the injury has caused fracture and therefore, conviction of the accused persons for wrongful restrain and voluntarily causing grievous hurt is sustainable. 15. The Learned Counsel appearing for the petitioner has highlighted the two glaring infirmities in the prosecution case namely the time of occurrence and the person who caused the injury on P.W.1 mentioned in his wound certificate (Ex.P.3). The best person, who can speak about these two facts is the injured who was examined as P.W.1. He was not cross examined and before he could be recalled for cross examination or to reconcile the discrepancy he died. No petition filed on behalf of the accused to defer his cross examination. Therefore, his deposition stands on record uncontroverted. 16. According to P.W.1 deposition, he know the accused persons, there is previous enmity with them regarding the land dispute. Two years ago, at about 10.00 a.m when he was weeding out grass, four persons came to his land. Without scolding him, Arul Prakasam attacked him with Aruval and others attacked him all over his body. He was lying unconscious and his brother, Chinnappan, Chinasamy came to the spot and all went to the Poolampatti Police Station. Later, they took him to Poolampatti Government Hospital and Police enquired him in Poolampatti Government Hospital and recorded his statement in which, he has affixed his finger print. 17. Ex.P1 is the statement of P.W.1, in which, the time of occurrence is mentioned as 3.00 p.m. The presence of Chinnappan or Chinnasamy not mentioned in this statement. According to this witness, his statement was recorded in the Poolampatti Government Hospital. Whereas, the endorsement made by the Head Constable Venkatachalam, who has recorded the statement indicates that, Ex.P.1 was recorded at Government Hospital, Salem, on 05.01.2007 at 14.00hrs. 18. Ex.P.3 is the Accident Register maintained at Poolampatti Government Hospital issued by P.W.7 Dr.Kumudha. The Accident Register indicates that, he was brought to the hospital at 4.00 p.m by Thangavel. He was referred to Government Hospital, Salem got admitted. 19. 18. Ex.P.3 is the Accident Register maintained at Poolampatti Government Hospital issued by P.W.7 Dr.Kumudha. The Accident Register indicates that, he was brought to the hospital at 4.00 p.m by Thangavel. He was referred to Government Hospital, Salem got admitted. 19. Ex.P.4 is the Accident Register issued by the Salem Government Hospital by P.W.8 Rajambal, in which, it is stated that, the brother of the injured brought him to the hospital at about 15.15 p.m on 04.01.2007. 20. P.W.1 [Manthiri] has clearly deposed that, first he went to the Police Station and then, got treated at the Poolampatti Government Hospital, where the Police came and recorded his statement and obtained his finger print. But what is produced before the Court is the statement recorded on the next day at 2.00 p.m at Government Hospital, Salem. In his evidence of P.W.1 has not stated that the incident was witnessed by persons named in his testimony. He claims that, his brothers Chinnasamy, Chinnappan came thereafter and took him to the Police Station and then to the Hospital. However, the case of the prosecution is that, they all witnessed the occurrence for which they have examined Thangavelu, Mariappan and Chinnappan. 21. P.W.2 [Thangavelu] claims that, he is one of the witnesses to the occurrence. Ex.P.1 indicates that, P.W.1 was attacked for supporting Thangavel [P.W.2]. If the accused had enmity and want to attack P.W.1 for supporting Thangavel, when Thangavel was very much present at SOC, why instead of attacking Thangavel they attacked P.W.1 is not been explained. If really P.W.2 was present when the accused armed with weapon came to the spot, then, they could have attacked Thangavel [P.W.2] and not P.W.1. Therefore, the presence of P.W.2 at SOC is highly doubtful. Furthermore, his deposition also indicates the earlier dispute between him and the accused persons and the failure of Panchayat held in the village. No person from the village been examined by the prosecution to substantiate this fact. 22. P.W.3 [Mariappan], in his cross examination admits that, one among the 4 accused persons carrying Koduval ran crossing his filed while he was working in his field ½ furlong away from the SOC. He did not know the date, time, day, month of the occurrence and admits he did not go to the spot and he did not see the occurrence. 23. He did not know the date, time, day, month of the occurrence and admits he did not go to the spot and he did not see the occurrence. 23. P.W.4 Chinnappan, in his Chief examination admitted that, he did not see the occurrence but he only heard about the occurrence. In the cross examination, after admitted that, he is only an hearsay evidence, he has spoken about the occurrence what he heard as if, he has seen the occurrence. For the said reason, his evidence is also not reliable. 24. In the light of the above facts, there are discrepancies regarding the time of occurrence and doubt about the person who attacked P.W.1. The failure of the prosecution to explain about non-recovery of the weapon used and the improbability of P.W.2, P.W.3 and P.W.4 being present at SOC as spoken by them in their testimony renders the conclusion of the Courts below holding the petitioner for offence under Section 325 of I.P.C, without establishing the person, who actually attacked P.W.1 is erroneous. 25. In the result, this Criminal Revision Petition is Allowed. The conviction and sentence passed by the I Additional District & Sessions Judge, Salem, dated 09.07.2015 is hereby set aside. Fine amount paid if any, ordered to be refunded to the petitioner. Bail Bond executed by the revision petitioner shall stands cancelled.