JUDGMENT : 1. This appeal arises out of the judgment passed by the III Addl. District and C/C II Addl. District and Sessions Judge Dharwad in S.C.No.130/2010 by judgment dated 23.06.2012 wherein the appellant/accused was convicted for the offence punishable under Section 307 of Indian Penal Code (In short ‘IPC’) and sentenced to undergo rigorous imprisonment for two years and fine of Rs.1,000/-and in default of payment of fine he shall further undergo rigorous imprisonment for one month. The appellant/accused is also sentenced to undergo rigorous imprisonment for two years and fine of Rs.1,000/- (Rupees one thousand only) for the offence punishable under Section 326 of IPC and in default of payment of fine, he shall further undergo rigorous imprisonment for one month. 2. The appellant in this appeal was the accused before the trial Court. Appellant will be referred as per his rank before the trial Court for convenience. The brief case of the prosecution is that, the appellant/accused and PW.5 are husband and wife. PW.4Salma is the wife of brother of accused by name Imamsab, who is complainant (PW7) in this case. It is the case of prosecution that the wife of Imamsab–PW.7 by name Salma and the wife of accused by name Chandbee were quarreling everyday in the house for last two to three months before the date of offence in respect of some domestic work. Both the complainant and accused advised them not to quarrel with each other and not to bring disrespect to their house and cause disturbance in this family. PW.7-Imamsab and accused were frustrated by quarrel by their wives. It is the case of prosecution that on 16.08.2009 at about 12.30 midnight in the house of the accused which is situated at Annigere, the accused assaulted both PW.4Salma and PW.5-Chandbee with a sickle and caused them injuries. They screamed for help. At that time quarrel was pacified by complainantPW7. Then, accused fled from the house. Injured were taken to hospital at Annigere and subsequently, they were sent to KMC Hospital, Hubballi. Thereafter, the SHO received the information and sent police constable to hospital, who recorded the statement of complainant as per Ex.P5 and registered the case in Crime No.115/2009 for the offence punishable under Sections 324 and 307 of IPC and sent the FIR as per Ex.P.13 to the Court. 3. Thereafter, the SHO received the information and sent police constable to hospital, who recorded the statement of complainant as per Ex.P5 and registered the case in Crime No.115/2009 for the offence punishable under Sections 324 and 307 of IPC and sent the FIR as per Ex.P.13 to the Court. 3. PW.16K.C.Rayamane, PSI who was working as SubInspector has received the phone call and he went to the said house and he found injured both CW.7 Chandbi and CW.6Salma and sent them in Ambulance to Annigere Hospital and thereafter to KMC Hospital, Hubballi. Their, he went to the scene of offence and drawn place of offence panchanama as per Ex.P.6 and seized sickle lying there as per M.O.4 and recorded statement of witnesses. He arrested the accused at Annigere cross. He also recorded the statement of injured witnesses. PW.16 seized the blood stained cloths of the injured under panchanama Ex.P.7 and sent the seized blood stained material for examination of forensic science laboratory. Thereafter, he received wound certificate from the doctor as per Ex.P9 and P10 and received statement from Tahasildar. PW16 also secured sketch of the place of offence, after completing investigation he filed charge sheet against the accused for the offence stated above. 4. Thereafter, the learned Magistrate after complying him the provisions of Section 207 committed the case to the Court of Sessions under Section 209 of Cr.P.C. The learned Sessions Judge after hearing both the parties framed the charge against the accused for the offence punishable under Sections 307 and 326 of IPC. Then prosecution examined 16 witnesses as PW.1 to PW.16 and got marked fifteen documents as Exhibits P1 to P15 and got identified five material objects as M.O.1 to M.O.5. Thereafter, the statement of the accused as required under Section 313(a)(b) Cr.P.C. was recorded. Accused denied the circumstances appearing against him in the evidence of prosecution witnesses. The accused has not chosen to adduce any defence evidence. After hearing the arguments, the learned Sessions Judge has passed the impugned order which is assailed by the appellant/accused before this Court in this appeal. 5. Heard, Sri. B.V.Somapura, learned counsel for the appellant and Smt.Girija Hiremath, learned HCGP for respondent-State. 6. Learned counsel for the appellant argued that the impugned judgment of conviction and sentence passed by the Sessions Judge is illegal, improper and arbitrary. 5. Heard, Sri. B.V.Somapura, learned counsel for the appellant and Smt.Girija Hiremath, learned HCGP for respondent-State. 6. Learned counsel for the appellant argued that the impugned judgment of conviction and sentence passed by the Sessions Judge is illegal, improper and arbitrary. It is further argued that the Court has not properly appreciated the evidence on record in a proper perspective. The Court has not taken into consideration the material contradictions and omissions in the evidence of prosecution witnesses. 7. It is further argued that the learned Sessions Judge failed to see that evidence of PWs.3, 4 and 5 are not trust worthy to convict the accused. PW.3 is infact hearsay witness. Hence, his evidence is of no value. PW.5 is wife of the accused who is quarrelsome lady. She was giving harassment to accused. Infact by taking advantage of injuries sustained by her due to fall, she has given a false evidence to further harass accused. The trial Court has not drawn proper presumption. The reasons assigned for convicting the accused are not proper and legal. Therefore, the learned counsel argued that the impugned judgment has resulted in miscarriage of justice and needs to be set aside and prays to acquit the accused. 8. Smt.Girija Hirematt, learned HCGP argued that the learned Sessions Judge has properly appreciated the evidence based on sound principals of law. The learned Sessions judge believed the evidence of PWs.3, 4 and 5. The medical evidence also corroborates the evidence of injured. Investigating officer has stated about investigation done by him. Looking into the nature of injuries and relationship of the witnesses. Sessions Judge believed the evidence of PW.5. The learned Sessions Judge after considering the overall evidence of prosecution witnesses found the accused guilty for the offence charged against him and has imposed appropriate sentence, which needs no interference by this Court. Accordingly, learned HCGP prays to dismiss the appeal. 9. I have perused the judgment of learned Sessions Judge. The learned Sessions Judge has framed two points for consideration and has referred to the evidence of PW.4Salma and PW.5Chandbi. He has also observed that both of them are quarrelling often for silly reasons. The learned Sessions Judge found that the other eye witness PW.2Modin Sab and PW.6Davodbi have turned hostile. Learned Sessions Judge has also found that both PW.4 and PW.5 have sustained injuries. He has also observed that both of them are quarrelling often for silly reasons. The learned Sessions Judge found that the other eye witness PW.2Modin Sab and PW.6Davodbi have turned hostile. Learned Sessions Judge has also found that both PW.4 and PW.5 have sustained injuries. The incident took place in the house of accused and his brother-complainant PW.7 at midnight. Therefore, it is impossible to state how the incident took place. The learned Sessions Judge found evidence of PW.3 as circumstantial evidence. The learned Sessions Judge found CW.5Chandbi being a wife has implicated accused. Though PW.4 stated that she sustained injuries due to fall from katta on a agricultural implements, the learned Sessions Judge gave a reason that PW.3Sayyad Modinsab Tahasildar who immediately came their and he was informed the injured that the accused assaulted them. The learned Sessions Judge has further stated that evidence of PW.4 and PW.5 is supported by medical evidence. The doctor has opined that only due to multiple fall such injuries will be caused. But, it is not defence of accused. Therefore, learned Sessions Judge found that in view of the evidence of PWs.3, 4 and 5, coupled with the evidence of medical officer, the prosecution has proved its case. Though, learned Sessions judge observed that quarrel took place between PW.4 and PW.5 and by seeing the said quarrel the accused was fed up. So, accused left without alternative, he tried to do away with them and assaulted them. The learned Sessions Judge has held that the ingredients of Section 307 are made out and the ingredients of 326 are also made out and convicted accused and after hearing sentence he has imposed the impugned sentence. 10. This being an appeal, I deem it appropriate to reappreciate the evidence on record. 11. PW.1Chandsab Davalsab Tahasildar is a nephew of complainant. He and accused are own brothers. His evidence is only a hearsay evidence. He has not seen the offence personally. Prosecution has treated him as hostile witness and cross examined him at length. But he has stated that he has not given statement before Police as per Ex.P.1. PW.2 Modinsab Davalsab Tahasildar is the father of the accused and CW.1. He has also stated that he was sleeping in the house and he does not know anything about the incident or assault on his daughter-in-law. Prosecution has treated him as hostile witness and cross examined. PW.2 Modinsab Davalsab Tahasildar is the father of the accused and CW.1. He has also stated that he was sleeping in the house and he does not know anything about the incident or assault on his daughter-in-law. Prosecution has treated him as hostile witness and cross examined. But he has clearly stated that he has not given any statement before the Police as per Ex.P2. 12. PW.3 Sayyad Modinsab Tahasildar is another brother of accused and CW1. He has also not supported the prosecution case and he has stated that he heard some galata and found PW.4Salma and PW.5Chandbi have sustained some injuries. But, only on enquiry, he came to know that since PW4 and PW5 were quarreling with each other, accused No.5 assaulted them. Therefore, his evidence is also of no use of the prosecution. In the cross examination, though prosecution has treated him as hostile to certain extent, he has not given statement before Police as alleged by Prosecution. In the cross examination, he has also admitted that PWs.4 and 5 were quarreling with each other and also admitted that they being agriculturist, they keep agricultural equipment in the house. His evidence is only a hearsay evidence. 13. PW.4Salma is wife of complainant-Imamsab. In her statement she has stated her relationship with CW.7Imamsab and also with accused. She has stated that when she was in house two years ago at about 11 p.m., the accused asked for water, she gave water. The accused assaulted her with the sickle causing bleeding injuries and she lost conscious and fell down.. In the cross examination, she has admitted that in connection with attending household works, often quarrel used to took place between the women in the family. It is further contended that PW5 is quarrelsome lady and for trivial matter there used to be a big quarrel. She has informed the accused and also her husbandCW.7 about such frequent quarrel. Therefore, she has developed grudge against the accused. She has also admitted that after dinner, there was some verbal arguments between PW.4 and PW.5 and both of them fell from the katta in the house. She has admitted that they fell on agricultural instruments and sustained injuries. So her evidence indicates that there was some altercation between PW.4 and PW.5 on that day and the agricultural instruments which are usually sharp might have caused injuries. She has admitted that they fell on agricultural instruments and sustained injuries. So her evidence indicates that there was some altercation between PW.4 and PW.5 on that day and the agricultural instruments which are usually sharp might have caused injuries. So her evidence, though in examination in chief supports the prosecution, but in her cross examination, subsequently shows that the other views are also possible. 14. PW.5Chandbi is the wife of accused. She has deposed that their marriage taken place about six years prior to the incident. After four years, she is residing in her parents house. She has stated that earlier she was residing with accused along with CW.1, PW.4, CW.2 and CW.3. She has stated that relationship between herself and PW.4 is cordial, which is inconsistent with the statement of PW.4 She has stated that at about 11 p.m., accused was abusing her without any reason and at about 12.30 p.m. assaulted on her right hand back and left shoulder when she was sleeping. Then, she got up and found that the accused was left the house. Then CW.1, her in-laws and others came to room and took her for treatment. She also found PW.4 had sustained injuries. She came to know that accused caused injuries to PW.4 also. Then both of them are admitted to KIMS Hospital, Hubballi. They have taken 17 days treatment. She has identified the sickle used for assault by the accused. In the cross examination, she has stated that accused CW.1 and in-laws and her brother are all residing in one house. She has also admitted that they also keep all agricultural implements by the side of katta in house. She has denied the quarrel between PW.4 andPW.5 often. She has denied the suggestions that she fell from katta, while quarreling with PW.4 and sustained injuries. 15. The evidence of PW.5 shows that she has not seen any assault on PW.4, she has stated that she came to know about it subsequently. When she was sleeping, at about 12.30 a.m. she was assaulted by accused, then she got up. She stated that accused has caused injuries to her with a sickle. Though, her evidence indicates that there might have been some quarrel and altercation between PW.4 and PW.5 and accused and regarding assault with sickle, her evidence does not inspire confidence in her. 16. PW.6- Davalbi is the mother of the accused. She stated that accused has caused injuries to her with a sickle. Though, her evidence indicates that there might have been some quarrel and altercation between PW.4 and PW.5 and accused and regarding assault with sickle, her evidence does not inspire confidence in her. 16. PW.6- Davalbi is the mother of the accused. She has stated that PWs.4 and 5 have sustained injuries. But, she has not supported the prosecution about accused assaulting them. Prosecution treated her as hostile witness and she has stated that she has not given statement before the Police as per Ex.P.3. Her evidence will not help the prosecution. 17. PW.7-Imamsab is brother of accused. PW.7 has stated in his evidence that, there was a quarrel between his wife and PW.5 accused wife in respect of household work. It was a daily affair, both brothers used to keep quite. PW.7 has further deposed that about two years prior to giving evidence, when he has gone out to attend the nature call during night hours, he heard some hue and cry from their house. He rushed back and found PWs.4 and 5 have sustained bleeding injuries. The mother, brother including accused were all present there. He has further stated that by fall from katte, they have sustained injuries. He took both injured to the KMC hospital. There Police obtained his LTM. He has stated before the Police that there was a galata in the house for doing household work between both his wife and also wife of accused. They fell from the katta and sustained injuries. The prosecution has treated him as hostile witness and also examined him. In the cross examination by prosecution, he has stated that both himself and accused were advising their wives when they were quarreling. He has denied about any assault by accused. So his evidence is also not helpful to the prosecution. 18. PW.8-Hajaresab Hasansab is a witness for place of offence and seizure of sickle. But he has not supported the prosecution. PW.9-Imamsab is also another witness for mahazer-Ex.P.7. He has not supported the prosecution. PW.10-K.D.Karamalli is Assistant Engineer who has prepared the sketch of the place of offence as per Ex.P.8. 19. PW.12-Dr.Sharada Bandiwaddar examined PW.4 and PW.5 and gave report as per Ex.P.9 and P10. He also received report from KIMS Hospital, Hubballi with regard to both injured as per Ex.P11 and P.12. He has not supported the prosecution. PW.10-K.D.Karamalli is Assistant Engineer who has prepared the sketch of the place of offence as per Ex.P.8. 19. PW.12-Dr.Sharada Bandiwaddar examined PW.4 and PW.5 and gave report as per Ex.P.9 and P10. He also received report from KIMS Hospital, Hubballi with regard to both injured as per Ex.P11 and P.12. On examination of PW.4Salma, the doctor found the following injuries: 1. Laceration over left neck measuring 12cmsX4cmsX2cms. 2. Laceration over left cheek measuring 6cms X 2cmsX 1cm. 3. Laceration over left upper back measuring 6cmsX2cmsX 1cms. And on examination of PW.5-Chandbee, the doctor found the following injuries: 1. Laceration over right elbow, measuring 2msX1cmX1cm. 2. Laceration over left shoulder, measuring 2cmsX1cmX1cm 3. Laceration over right upper back, measuring 2cmsX1cmX1cm. 20. PW.12Doctor has opined that injury No.1 is grievous in nature in both the certificates. In the cross-examination he has stated that if a two persons quarreling with each other and in a scuffle fell on agricultural implement from little height, the injuries noted in Exs.P9 and 10 could be caused. But he stated that it should be of a multiple fall. PW.12Dr.Sharad Bandiwaddar, who was a medical officer working at KIMS has admitted in his cross-examination that the injuries noticed in Ex.P12 could cause if a persons quarreling with each other, fall from a height on a agriculture implement i.e., Kunte and Rante. The medical evidence indicates that the some injuries were sustained by PWs.4 and 5. 21. Though, PW4 initially support the prosecution case, but subsequently, she resile from the said statement. PW5 has stood the test of cross-examination. Their evidence supports the medical evidence. However, possibility of their sustaining injuries while quarreling with each other by falling on a agricultural implements in a quarrel also cannot be ruled out. 22. PW13-Gouse Mohiddin Mulla was a witness for seizer of sickle i.e., MO1 and place of panchanama i.e, Ex.P6. But he has not supported the case of prosecution. 23. PW14-A.M.Dodamani, police constable, has taken the sealed pockets of the materials to FSL. PW15-Babusaheb is a witness for seizer of blood stained cloths as per Ex.P7-panchanama. He has not supported the case of prosecution. PW16-K.S.Raimane is a PSI of Haveri town. He has stated about receiving of telephonic message and visiting the spot and registering the case. He has stated about panchanama, seizer of the sickle, blood stained cloths and conducting part of investigation. He has not supported the case of prosecution. PW16-K.S.Raimane is a PSI of Haveri town. He has stated about receiving of telephonic message and visiting the spot and registering the case. He has stated about panchanama, seizer of the sickle, blood stained cloths and conducting part of investigation. In the cross-examination some suggestions were made, which he has denied. This is are all the evidences of prosecution. 24. In the statement recorded under Section 313 of Cr.P.C, the accused has expressed his ignorance to some of the questions and stated that he does not know about it and denied the same. 25. On entire re-appreciation of the evidence it is evident that on the night of 15th and 16th August 2009 at about 12.30 both accused and complainant were in the house with their respective wives. It is also evident that the parents of accused and their other brother was also in the house. It is also evident that both PW.4 and PW.5 sustained bleeding injuries. It is admitted that PW7, the complainant by name Imamsab took both injured to the hospital. Exs.P9 and Ex.P10 shows though there are two simple injuries, the injury no.1 for both PWs.4 and 5 are grievous in nature. Exs.P9 and P10the medical certificates also shows that both the injured have brought by said Imamsab with a history of assault in the house by this accused Babajan Tahasildar, as evident in the history column of the wound certificate Exs.P9 and P10. There are evidences of other witnesses to show that quarrel took place between PWs4 and 5 and accused. It is evident that both PWs.4 and 5 were quarreling with each other every day. PW7 and accused might have fed up with this quarrel nuisance every day. For that reason, there might be some quarreled and there may be assault by the accused. Both the witnesses-PW4 and PW5 identified MO.1 sickle. Of course, there are no reasons for the wife to falsely implicate her husband. It appears subsequent to the incident she is residing separately in parents residence. But, the nature of injury to PW5 is not on any vital part of the body. It is only on right elbow and left shoulder. As evident from the Ex.P12, the report of the doctor from KMC there is also one grievous injury to PW4. It appears subsequent to the incident she is residing separately in parents residence. But, the nature of injury to PW5 is not on any vital part of the body. It is only on right elbow and left shoulder. As evident from the Ex.P12, the report of the doctor from KMC there is also one grievous injury to PW4. Of course PW4 has admitted the possibility of falling from Katta on a agricultural implement, which are sharp. 26. Injured and other witnesses are close relatives and are all residing in one house only. It also appears that there was some altercation between PWs.4 and 5 and the accused. PWs.4 and PW.5 alleged that they were assaulted by this accused. But there is no evidence to show that either accused intended to cause any grievous injury or inflict such injury which would be in ordinary course cause death. Though, doctors have stated that the injuries shown could be caused with MO.1sickle. But the seizer of said sickle is not supported by the prosecution panch witnesses. Therefore, when there is a continuous quarrel between two women in the family, the Court has to take into consideration the surrounding circumstances, which has made the accused so desperate and fed up with the quarrel. It appears on that day also there is a quarrel between PWs.4 and 5 as stated by PW4. The accused might have tried to pacify the quarrel and as it is a continuous act, he might have tried to threaten them by trying to assault them. But there is absolutely no evidence to show that the accused has contemplated to cause any grievous hurt so as to cause the death. Even though, he might have intended to cause simple hurt just to prevent the further quarreling. It might be a grievous hurt might have unexpectedly caused. But offender-accused has no intention or he has not contemplated to cause any grievous hurt as evident from the circumstances. It is settled principle of law that the means by which the injury was caused is not the true criteria. The answer depends upon the nature of injury caused. Here it is not that he has inflicted number of blows with the sickles. On the other hand, it is also evident that there were sharp agricultural implements, PW4 and PW5 might have fallen while accused trying to assault them and sustained some other injuries. The answer depends upon the nature of injury caused. Here it is not that he has inflicted number of blows with the sickles. On the other hand, it is also evident that there were sharp agricultural implements, PW4 and PW5 might have fallen while accused trying to assault them and sustained some other injuries. None of the doctors have stated that the injuries sustained by PWs.4 and 5 would in ordinary course are dangers to life or could have caused death, but for their treatment. There is no such evidence at all. 27. Therefore, it is evident that the accused never intended or he knew that he is likely to cause any grievous hurt or he intended to cause death of PWs.4 and 5. Therefore, the finding of the learned Session Judge that the accused is guilty of Section 307 and 326 of IPC, cannot be sustained. Because looking into the ingredients of Section 307 and 326 of the IPC and also looking into the surrounding circumstances and the evidence on record, the prosecution has failed to prove that the accused either intended to cause death or cause grievous hurt. The learned Sessions Judge has stated it is for the accused to explain how the injuries sustained by them. Of course, the accused was very much present, but it does not mean that it is for the accused to explain the injury in all and every cases. Though, under Section 106 of the Indian Evidence Act, 1872, a person has to explain the facts within his personal knowledge. But that does not absolve the prosecution of proving its case beyond all reasonable doubt as alleged. Only when the initial burden of proving the case as alleged beyond all reasonable doubt is discharged by the prosecution then only it is for the accused under Section 106 of the Indian Evidence Act to explain how the injuries are caused. On the other hand, accused has taken a defence that there were a quarrel between PW4 and PW5 and there was altercation and in scuffle they fell down. Of course to some extent this explanation also cannot be ruled out. On the other hand, accused has taken a defence that there were a quarrel between PW4 and PW5 and there was altercation and in scuffle they fell down. Of course to some extent this explanation also cannot be ruled out. Therefore, considering the relationship of the accused with the injured and other witnesses, the circumstances under which the alleged incident took place and the nature of injuries sustained, in my considered view the evidence on record does not invite sentencing the accused for the offence under Sections 307 and 326 of IPC. Therefore, the conviction and sentence of imprisonment imposed by the learned Sessions Judge requires to be modified. 28. Ingredients of Sections 307, 326 and 324 of IPC in the light of evidence on record. Keeping in mind the said submission, in my considered view though the prosecution has failed to prove the offence under Sections 326 and 307 of the IPC but the prosecution has proved that accused can be found guilty for the offence under Section 324 of IPC. Accordingly, the conviction and sentence needs to be modified. 29. The offence under Section 324 of IPC prescribes the sentence imprisonment either description for a term, which may extend to 3 years or with find or with both. The learned Sessions judge apart from imposing sentence of imprisonment has also imposed fine of Rs.1,000/-. It is evident from the order sheet of the trial Court that the accused was in judicial custody for a period of more than 9 months and therefore, in view of the peculiar facts and circumstances of case the evidence on record and the relationship of accused with PW4 and PW5 and under the circumstances in which the hurt was caused, in my considered view the period of judicial custody already undergone by the accused during the period of trial be treated as a sentence of imprisonment. The accused is also sentenced to pay fine of Rs.1,000/- since, the accused has already undergone period of 9 months in judicial custody in this case. He is required to pay the fine amount of Rs.1,000/- if not deposited before the trial Court. Accordingly, I pass the following; ORDER The appeal is partly allowed. The accused is also sentenced to pay fine of Rs.1,000/- since, the accused has already undergone period of 9 months in judicial custody in this case. He is required to pay the fine amount of Rs.1,000/- if not deposited before the trial Court. Accordingly, I pass the following; ORDER The appeal is partly allowed. The judgment of conviction and order of sentence dated 23.06.2012 by II Addl.District and Sessions Judge and Special Judge, Dharwad in S.C.No.130/2010 convicting the accused for the offence punishable under Section 307 and 326 of IPC is set-aside and modified that the accused is convicted for the offence punishable under Section 324 of IPC and sentence to undergo imprisonment for a period of 9 months and fine of Rs.1,000/-. The sentence of imprisonment is confined to the period already undergone by him during trial in judicial custody and in default of payment of fine of Rs.1,000/-, he shall undergo further simple imprisonment for a period of one month. The appellant-accused shall execute a bond to pay fine amount if not deposited within 30 days. Registry is directed to transmit the records forthwith to the trial Court.