JUDGMENT/ORDER 1. Heard Sri Ravi K. Anoor, learned counsel for the petitioner and Sri Gururaj V. Hasilkar, learned High Court Government Pleader for the respondent. 2. The present revision petition is filed challenging the judgment dtd. 15/12/2015 passed in C.C.No.1343/2013 by I-Additional Civil Judge and JMFC-II at Bidar, whereby the accused came to be convicted for the offences punishable under Ss. 326, 504 and 506 of IPC and confirmed by the Principal District and Sessions Judge, Bidar, in Criminal Appeal No.52/2015 by judgment dtd. 20/10/2016. 3. Brief facts which are necessary for disposal of the present revision petition are as under: The prosecution alleged that Munnemma, being the close relative of the complainant, is the wife of the accused. The accused used to suspect her chastity and used to physically harass her. The complainant enquired the grievances of Munnemma over telephone and advised Munnemma and accused maintained cordial relationship with her. Thereafterwards, it is revealed that in respect of an autorickshaw, the relationship between Munnemma and her husband got strained. When the matter stood thus, on 8/5/2013 at about 8.00 p.m., when the complainant called Munnemma over telephone, the accused received the telephone call and started abusing the complainant in filthy language and questioned him as to what is the relationship he is having with Munnemma. On the same day, at about 10.00 p.m., when the complainant was standing outside his house, one Jaganath Shetkar along with Sidram Shetkar and Kashinath accompanied the accused, came to him and questioned him as to why he is talking to the wife of the accused and what is the relationship that is existing between the complainant and wife of the accused and all of a sudden, attacked the complainant and abused him in filthy language and assaulted him with knife on the left side of the rib causing grievous injuries to the complainant which resulted in filing a complaint before Bidar Rural Police for the aforesaid offences. 4. After registering the case and after conducting detailed investigation, Bidar Rural Police filed a chargesheet against the accused. 5. The presence of the accused was secured before the jurisdictional Magistrate and necessary charges were framed for the aforesaid offences. 6. Since the accused person did not plead guilty, the trial was held. 7. 4. After registering the case and after conducting detailed investigation, Bidar Rural Police filed a chargesheet against the accused. 5. The presence of the accused was secured before the jurisdictional Magistrate and necessary charges were framed for the aforesaid offences. 6. Since the accused person did not plead guilty, the trial was held. 7. In the Trial Court, in order to prove the case of the prosecution, in all, 8 witnesses were examined on behalf of the prosecution as PWs.1 to 8 and 6 documentary evidence were relied upon by the prosecution which were exhibited and marked as Exs.P1 to P6 and one material object namely the knife was also marked as M.O.1 on behalf of the prosecution. 8. Thereafterwards, the accused statement as contemplated under Sec. 313 of Cr.P.C., was recorded before the learned Magistrate wherein the accused has denied all the incriminating circumstances that were found against the accused and did not offer any explanation in writing as is contemplated under Sec. 313(5) of Cr.P.C. Thereafter, the learned Magistrate heard the parties and on cumulative consideration of the oral and documentary evidence on record, passed an order of conviction against the accused for the offences punishable under Ss. 326, 504 and 506 of IPC and passed the following sentence: "Accused is convicted for the offence u/s 326 of IPC . He is sentenced to undergo S.I for 2 years and accused is directed to pay a fine of Rs.3000.00. Accused is convicted for the offence u/s 504 of IPC . He is sentenced to undergo S.I for 3 months. Accused is convicted for the offence u/s 506 of IPC . He is sentenced to undergo S.I for 3 months. Out of the fine amount of Rs.3000.00 (Three thousand), Rs.2000.00 is ordered to be paid to the PW-1 as compensation. All these sentences shall run concurrently. Office is directed to supply free copy of this judgment to the accused." 9. Being aggrieved by the same, the accused/petitioner preferred an appeal before the Principal District and Sessions Judge, Bidar, in Criminal Appeal No.52/2015. 10. The learned Sessions Judge secured the Trial Court records and after hearing the parties, dismissed the appeal of the accused/petitioner by judgment dtd. 20/10/2016 and confirmed the order of sentence. 11. Being aggrieved by the same, the accused/petitioner is before this Court in this revision petition. 12. 10. The learned Sessions Judge secured the Trial Court records and after hearing the parties, dismissed the appeal of the accused/petitioner by judgment dtd. 20/10/2016 and confirmed the order of sentence. 11. Being aggrieved by the same, the accused/petitioner is before this Court in this revision petition. 12. Sri Ravi K. Anoor, learned counsel for the petitioner reiterating the grounds urged in the revision petition contended that both the Courts have not properly appreciated the material evidence on record. He also contended that the injury found on the body of the injured person is a not grievous injury and therefore, the Trial Court ought not to have convicted the petitioner for the offence punishable under Sec. 326 of IPC and sought for allowing the revision petition. 13. He further contended that at the most, material available on record would only indicate that the accused is guilty of the offence punishable under Sec. 324 of IPC and therefore, the conviction order be modified and the accused be convicted for the offence punishable under Sec. 324 of IPC and probation be granted by enhancing the compensation amount. 14. Per contra, learned High Court Government Pleader vehemently contended that the material evidence on record has been rightly appreciated by both the Courts. 15. It is further contended by learned High Court Government Pleader that having regard to the scope of revision petition, this Court cannot re-visit into the factual aspects of the matter and when the injured eyewitness has supported the case of the prosecution coupled with other material evidence on record including the medical evidence, the Trial Court and the First Appellate Court has rightly convicted the petitioner for the offence punishable under Sec. 326 of IPC and sought for dismissal of the revision petition in toto. 16. In view of the rival contentions of the parties, the following points would arise for consideration: 1) Whether the finding recorded by the learned Trial Judge in C.C.No.1343/2013 that the accused is guilty for the offences punishable under Ss. 326, 504 and 506 of IPC and confirmed by the learned District Judge in Criminal Appeal No.52/2015 is suffering from legal infirmity or perversity and thus calls for interference? 2) Whether the revision petitioner makes out that there is an error of jurisdiction? 3) Whether the sentence is excessive? 4) What order? 17. 326, 504 and 506 of IPC and confirmed by the learned District Judge in Criminal Appeal No.52/2015 is suffering from legal infirmity or perversity and thus calls for interference? 2) Whether the revision petitioner makes out that there is an error of jurisdiction? 3) Whether the sentence is excessive? 4) What order? 17. Having regard to the scope of the revision petition filed under Sec. 397 of Cr.P.C., this Court perused the material on record in view of the rival contentions of the parties. 18. In the case on hand, Sheshanath, injured/ complainant is examined as PW.1. He is an Autorickshaw driver by profession. He deposed about the incident that has occurred on the fateful day with graphic details. 19. In his detailed cross-examination, there is a suggestion made to him that there is a previous enmity between him and the accused. The said suggestion is admitted by him. A suggestion is also made to him that under the influence of liquor, he fell down and sustained injuries and a false case has been foisted against the petitioner is denied by him. The version of PW.1 is supported by the medical evidence by examining the doctor-Juber who treated the complainant on 8/5/2013 at about 11.17 p.m., in the District Hospital and issued wound certificate vide Ex.P5. In the wound certificate, injury noted by PW.7 is as under: "left lumbar about 2 .cm., cut injury" 20. In the cross-examination of PW.7, it is suggested that cut injury is occurred by a sharp edged weapon. The witness further admits that if there is injury caused by sharp edged weapon, there would be profused bleeding. He admits that if the person is injured with a profused bleeding, he would be unconscious. He admits that he has not mentioned the age of the injury in Ex.P5. He also admits that PW.1 was conscious when he treated him. 21. Further, on cumulative consideration of material on record, the Investigating Agency was able to establish the nexus between the incident and the accused by recovering the knife used in the incident. 22. All these aspects of the matter has been rightly appreciated by the learned Trial Judge while convicting the accused for the aforesaid offences. 21. Further, on cumulative consideration of material on record, the Investigating Agency was able to establish the nexus between the incident and the accused by recovering the knife used in the incident. 22. All these aspects of the matter has been rightly appreciated by the learned Trial Judge while convicting the accused for the aforesaid offences. The learned appellate Judge on re-appreciation of the material evidence on record has also recorded a categorical finding that the prosecution is successful in establishing the charges levelled against the accused and dismissed the appeal. 23. However, both the Courts below failed to note that whether the injury mentioned in Ex.P5 could be a grievous injury. In order to appreciate the said aspect of the matter, it is necessary to cull out Sec. 320 of IPC which reads as under: "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." 24. On perusal of the above provision of law, the injury mentioned in Ex.P5 cannot be classified as grievous injury in the absence of three dimensional measurements being observed and recorded by PW.7 in Ex.P5. For an injury to be classified as a grievous injury, the doctor who examined PW.1 must mention in the wound certificate as to the length, breadth and depth of the injury. 25. In the case on hand, no such measurements are given by PW.7 in Ex.P5. Further, in the cross- examination of PW.7, he admits that if a grievous injury is caused especially on the abdominal region by virtue of a assault by a sharp edged weapon, there would be profused bleeding resulting in unconsciousness of the injured. 26. In the case on hand, PW.7 while examining PW.1, PW.1 was very much conscious and he was taken to the hospital by his brother. 26. In the case on hand, PW.7 while examining PW.1, PW.1 was very much conscious and he was taken to the hospital by his brother. He also admits that there was no profused bleeding and PW.7 failed to mention the age of the injury, but he has stated that it is a fresh injury. 27. Taking note of these aspects of the matter, especially, in the absence of any further material to prove that the injury noted by PW.7 in Ex.P5 being a grievous injury, this Court is of the considered opinion that based on the oral testimony of PW.7 alone which is a opinion evidence as per Sec. 45 of the Indian Evidence Act, the Trial Court ought not to have held the injury as a grievous injury based only on the testimony of PW.7. 28. Therefore, conviction of the accused for the offence punishable under Sec. 326 of IPC, thus is incorrect and therefore, there is an error of jurisdiction by the learned Magistrate which has been ignored by the learned Judge in the First Appellate Court while re- appreciating the material evidence on record resulting in miscarriage of justice. 29. Therefore, to that extent, the matter requires interference by this Court even in the revisional jurisdiction. Accordingly, point Nos.(1) and (2) are answered in partly affirmative. Regarding point No.(3): 30. This Court having recorded a categorical finding that the injury caused to PW.1 by the assault made by the accused with M.O.1 could not be under Sec. 326 of IPC, it could be traced down to Sec. 324 of IPC, as there is a bleeding injury caused by assault with M.O.1 by the accused to the complainant. 31. Since the offence is scaled down to Sec. 324 of IPC from Sec. 326 of IPC, it is now the task of this Court to find out whether the accused is entitled to grant of probation under Sec. 4 of the Probation of Offenders Act, 1958 (for short, hereinafter referred to as 'the Act'). 32. Admittedly, the accused is a first time offender and there is no material on record to show that he is having a criminal antecedent. 33. However, learned High Court Government Pleader contended that in the event of granting of probation to the accused/petitioner, report from the Probation Officer is necessary. 34. Admittedly, the incident has occurred on 8/5/2013. 32. Admittedly, the accused is a first time offender and there is no material on record to show that he is having a criminal antecedent. 33. However, learned High Court Government Pleader contended that in the event of granting of probation to the accused/petitioner, report from the Probation Officer is necessary. 34. Admittedly, the incident has occurred on 8/5/2013. As on today, almost ten years have lapsed and no further complaints are found as against the petitioner. There is no complaint that there was a breach of bail conditions during the trial or before the First Appellate Court. At this distance of time, remitting the matter only for the purpose of obtaining the report from the Probation Officer would result in futile exercise and therefore, this Court is of the considered opinion that the petitioner may be granted the benefit of probation. 35. Further, this Court cannot lose the sight of Sec. 5 of the Act especially when it is being granted for the first time before the revisional Court. The Trial Court has granted compensation in a sum of Rs.2, 000.00 to PW.1 payable by the accused. Taking note of the fact that the complainant has suffered injury on the lumbar region, ordering Rs.2, 000.00 as compensation would be too low and therefore, the accused is directed to pay adequate compensation. Ordering the accused to execute the bond in a sum of Rs.25, 000.00 with two sureties for the likesum for his good behaviour and directing him to pay a fine of Rs.40, 000.00 for the offences punishable under Ss. 324, 504 and 506 of IPC and ordering a sum of Rs.35, 000.00 out of the fine amount, as compensation would meet the ends of justice. Accordingly, point No.(3) is answered. Regarding point No.(4): 36. In view of the finding of this Court on point Nos.(1) to (3) as above, the following order is passed: ORDER (i) The criminal revision petition is allowed in part. (ii) The judgment of conviction passed by I-Additional Civil Judge and JMFC-II, Bidar, in C.C.No.1343/2013 and confirmed by the Principal District and Sessions Judge, Bidar, in Criminal No.52/2015 convicting the accused/petitioner for the offence punishable under Sec. 326 of IPC is hereby set aside and instead, he is convicted for the offence punishable under Sec. 324 of IPC. (iii) Conviction of the accused under Ss. 504 and 506 of IPC is maintained. (iii) Conviction of the accused under Ss. 504 and 506 of IPC is maintained. (iv) The accused/petitioner is granted benefit of probation and he is directed to execute a bond in a sum of Rs.25, 000.00 (Rupees Twenty Five Thousand Only) with two sureties for the likesum to the satisfaction the learned Trial Magistrate, for his good behaviour, which shall be in force for a period of two years from the date of execution, and he is directed to pay a fine amount of Rs.40, 000.00 in respect of all the offences punishable under Ss. 324, 504 and 506 of IPC. (v) Out of the fine amount recovered, a sum of Rs.35, 000.00 is ordered to be paid as compensation to PW.1 under due identification. (vi) Time is granted to the petitioner to execute the bond and to pay fine amount till 10/2/2023, failing which, the accused/petitioner is directed to undergo sentence of imprisonment for a period of two months for the offence punishable under Sec. 324 of IPC.