ORDER : 1. Challenge in this Criminal Revision Case is to the judgment in Criminal Appeal No.27 of 2008, dated 17.04.2010, on the file of the Court of IV Additional District and Sessions Judge, Kurnool (for short "the learned Additional Sessions Judge") whereunder the learned Additional Sessions Judge, while dealing with the Criminal Appeal filed by the appellant, against the conviction and sentence under Section 326 of the INDIAN PENAL CODE , 1860 (for short "the IPC"), dismissed the Criminal Appeal confirming the conviction and sentence imposed against him in Calender Case No.81 of 2005, dated 22.02.2008, on the file of the Court of Judicial Magistrate of First Class at Atmakur, Kurnool District (for short "the trial Court") for the offence under Section 326 of IPC. 2. The parties to this Criminal Revision Case will hereinafter be referred to as arrayed before the trial Court, for the sake of convenience. 3. The case of the prosecution, in brief, according to the contents of the charge sheet in Calender Case No.81 of 2005 is that accused is resident of Jamminagar, Velegode Town. De-facto complainant namely Vadde Seshaiah (LW.1) is the injured. The complainant raised paddy crop in half acre of land belonging to Telugu Ganga of Velegode Town and sprayed pesticides. Adjacent to his fields, the fields of the accused are situated in an extent of Ac.5.00 cents, which is also belonging to Telugu Ganga. The accused in the absence of LW.1 cut off the boundary of the land of LW.1 as such the pesticide sprayed in the land of LW.1 had flown along with the water into the channel. On 25.12.2004 morning LW.1 went to his filed, found the boundary cut off and the water has flown into the channel. He returned to the village and found the accused near tea bunk near pial and asked the accused about cutting of his boundary in the paddy field. Accused bore grudge against LW.1 and beat him with natu stick on his left hand elbow and on left shoulder and caused contusions and swelling. It was about 06:00 a.m. Then LWs.2 to LW.4 namely Kothapalli Chinna Subbanna, Telugu Pedda Subbanna and Golla Srinivasulu intervened and separated them. Accused bore grudge against LW.1 and beat him with natu stick on his left hand elbow and on left shoulder and caused contusions and swelling. It was about 06:00 a.m. Then LWs.2 to LW.4 namely Kothapalli Chinna Subbanna, Telugu Pedda Subbanna and Golla Srinivasulu intervened and separated them. On the basis of the report and after receipt of wound certificate on 27.03.2005, LW.6 - SI of Police, Velegodu PS registered a case in Crime No.34 of 2005 of Velugodu P.S for the offence under Section 326 IPC and investigated into. During investigation, accused got anticipatory bail ON 19.05.2005. LW.5 - Medical Officer, Government Hospital, Nandyal who treated the injured opined that Injury No.1 is grievous and injury No.2 is simple in nature. Hence, the charge sheet. 4. The learned Judicial Magistrate of First Class, Atmakur took cognizance of the case against the accused for the offence under Section 326 IPC. After appearance of the accused and, after complying necessary formalities under Section 207 Code of Criminal Procedure, 1972 (for short "the Cr.P.C.") the learned Judicial Magistrate of First Class, Atmakur framed a charge under Section 326 IPC and explained the same to him in Telugu for which he pleaded not guilty and claimed to be tried. 5. On behalf of the prosecution before the learned Judicial Magistrate of First Class, Atmakur PWs.1 to PW.6 were examined and Exs.P-1 to P-6 were marked. After closure of the evidence of the prosecution, accused was examined under Section 313 Cr.P.C with reference to the incriminating circumstances appearing in the evidence let in for which he denied the incriminating circumstances but did not let in any defence evidence. 6. The learned jurisdictional Magistrate on conclusion of trial and after hearing both sides found the accused guilty of the offence under Section 326 IPC, convicted him under Section 248(2) Cr.P.C. and, after questioning him about the quantum of sentence, sentenced him to suffer Simple Imprisonment for six (6) months and to pay a fine of Rs.1,000/- in default to suffer Simple Imprisonment for one (1) month. 7. Felt aggrieved of the aforesaid conviction and sentence, unsuccessful accused therein filed Criminal Appeal No.27 of 2008 before the learned Additional Sessions Judge, which was dismissed on merits. 8. 7. Felt aggrieved of the aforesaid conviction and sentence, unsuccessful accused therein filed Criminal Appeal No.27 of 2008 before the learned Additional Sessions Judge, which was dismissed on merits. 8. The un-successful appellant/accused felt aggrieved of the judgment of the learned Additional Sessions Judge in Criminal Appeal No.27 of 2008, confirming the conviction and sentence under Section 326 IPC, filed the present Criminal Revision Case. 9. Now in deciding the present Criminal Revision Case, the point that arises for consideration is whether the judgment in Criminal Appeal No.27 of 2008, dated 17.04.2010, on the file of the Court of IV Additional District and Sessions Judge, Kurnool is sustainable under law and facts and whether there are any grounds to interfere with the same? POINT 10. Sri K. Rathanga Pani Reddy, learned counsel for the revision petitioner, would contend that the evidence of PW.1 has no support fully from the evidence of PW.2. PW.3 and PW.4 turned hostile to the case of prosecution. The evidence of PW.1 is interested in nature. The defence of the accused was that PW.1 received injuries by fall elsewhere in an intoxicated condition. The trial Court as well as the appellate Court fell in error in maintaining conviction against the accused for the offence under Section 326 IPC. Learned counsel for the revision petitioner would further submit that it is really doubtful as to whether the case would come within the purview of Section 326 IPC for non-seizure of weapon and further the evidence on record shows that there was provocation between PW.1 and the accused, which is evident from the evidence of PW.1 and PW.2. With the above arguments, he would further submit that, in the event of dismissal of Criminal Revision Case for any valid reason, the Court may consider to reduce the term of imprisonment because the accused already underwent sentence during crime stage and after dismissal of the Criminal Appeal. 11. Smt. D. Prasanna Lakshmi, learned counsel, representing learned Public Prosecutor, seeks to support the judgment of the learned Additional Sessions Judge in Criminal Appeal No.27 of 2008 on the ground that both the trial Court as well as appellate Court thoroughly appreciated the evidence on record and found the accused guilty of the offence under Section 326 IPC as such there are no grounds to interfere with the judgment of the learned Additional Sessions Judge. 12. 12. This Criminal Revision Case is filed against the concurrent findings of the learned Judicial Magistrate of I Class, Atmakur and learned IV Additional District and Sessions Judge, Kurnool. The scope of this Criminal Revision Case is limited as to whether there is any illegality, irregularity and impropriety in the judgment of the appellate Court. Keeping in view the matter is to be dealt with. 13. As seen from the evidence of PW.1, who is no other than the injured, the offence took place two years ago at about 06:00 a.m. One day prior to the date of incident, he applied pesticides to his paddy crop and put water to the crop. The accused who is no other than the neighbouring land owner of PW.1 cut down the bund and irrigated his land from his land. Then he proceeded to the bus stand where the accused was there and questioned his highhandedness. The accused replied harshly, picked up a stick and beat him on his left forearm and on right side of collar bone. His left hand forearm was fractured to the blow given by the accused. LWs.2 to LW.4 witnessed the incident and rescued him from the hands of the accused. He got prepared Ex.P-1 – complaint and presented it to the Police. He was referred to Government Hospital, Nandyal for treatment. 14. Prosecution examined PW.2, another direct witness to the occurrence, who testified that he knows PW.1, LW.3, LW.4 and accused. The offence took place about 2 years ago around 06:00 a.m. He along with 15 members was present near tea bunk for taking tea. The other 15 members were present at the time of incident. They found the accused and PW.1 quarrelling with each other. They got separated them and he went away from the scene. 15. PW.3 and PW.4 did not support the case of prosecution. Prosecution got declared them as hostile and during their cross- examination, they denied that they stated before Police as in Exs.P-2 and P-3 (161 Cr.P.C. statements) respectively. 16. PW.5 was the Medical Officer, who examined PW.1 and he deposed that on 25.12.2004 at 12:00 noon, he examined Vadde Seshaiah (PW.1) and found 1) swelling tenderness and deformity of left wrist joint, 2) pain, swelling tenderness over left shoulder joint. X-ray left wrist joint AP later view fracture of lower end of left radius. 16. PW.5 was the Medical Officer, who examined PW.1 and he deposed that on 25.12.2004 at 12:00 noon, he examined Vadde Seshaiah (PW.1) and found 1) swelling tenderness and deformity of left wrist joint, 2) pain, swelling tenderness over left shoulder joint. X-ray left wrist joint AP later view fracture of lower end of left radius. The age of the injury is 8 to 10 hours prior to his examination. He deposed that injury No.1 is grievous in nature and injury No.2 was simple in nature. He issued Ex.P-4 wound certificate of PW.1 17. PW.6 was the Investigating Officer. According to him on 25.12.2004 at 06:00 a.m. while he was in the Police Station, PW.1 came to the Police Station and lodged a report. He made G.D. Entry and forwarded the injured to Government Hospital, Nandyal. On 27.03.2005 after receipt of wound certificate from Government Hospital, Nandyal he registered the aforesaid case in Crime No.34 of 2005 for the offence under Section 326 IPC. Ex.P-5 is the FIR. He went to the scene of offence and prepared rough sketch, which is Ex.P-6. He examined PW.1 on 27.03.2005 in the Police Station. He examined PW.2, PW.3 and PW.4 during investigation. Accused obtained anticipatory bail and after completion of investigation he filed charge sheet. 18. Before going to deal with the matter, it appears that the Investigating Officer i.e., PW.6 did not register the FIR immediately after recording statement from PW.1 on 25.12.2004. Though his inability to register any FIR on 25.12.2004 is not justifiable but because of that the case of the prosecution cannot be thrown out. It appears that as there were no visible physical injuries on the person of PW.1, he sent him to the Government Hospital, Nandyal and after receipt of wound certificate only he registered the FIR. However, the report under Ex.P-1 was without any delay. Even it is not a case where there was delay in lodging Ex.P-1 statement by PW.1. 19. The ocular testimony of PW.1 has support from the medical evidence, undoubtedly. However, PW.3 and PW.4 direct witnesses to the incident did not support the case of prosecution. Their hostility is proved by virtue of Exs.P-2 and P-3 and by virtue of the evidence of PW.6, the Investigating Officer. Merely because PWs.3 and PW.4 remained hostile, the case of the prosecution cannot be disbelieved. However, PW.3 and PW.4 direct witnesses to the incident did not support the case of prosecution. Their hostility is proved by virtue of Exs.P-2 and P-3 and by virtue of the evidence of PW.6, the Investigating Officer. Merely because PWs.3 and PW.4 remained hostile, the case of the prosecution cannot be disbelieved. PW.2 was one of the direct witnesses who supported the case of prosecution with regard to the quarrel that took place between PW.1 and accused. Though PW.2 did not testify the actual attack made by accused on PW.1 but his evidence means that he found the accused and PW.1 quarrelling with each other. During cross-examination, PW.2 testified that prior to his visiting tea bunk, quarrel has already commenced between accused and PW.1. They went ahead, than the accused and PW.1 after subsiding the galata. He denied that he did not witness the occurrence. It is to be noted that PW.2 was not at all interested either in the case of prosecution or in the defence of the accused. He testified the presence of the accused, PW.1, LW.3 and LW.4 at the time of incident. Under the circumstances, the evidence of PW.2 to the extent he supported the case of the prosecution can be considered. 20. It is to be noted that, absolutely, there were no ill-feelings prior to the date of incident between PW.1 and the accused. During the course of cross-examination PW.1 he deposed that he did not witness personally when the accused cut down the bund of his land. Only on suspicion that he might have cut down the bund, he questioned the accused. On the next day of noticing cut down of his bund, he questioned the accused near bus stand. By then there were 6 or 7 persons present when he questioned accused about his highhandedness. The accused picked up a cart peg and beat him. On the date of incident, he lodged report. He denied that he is deposing false. 21. Absolutely, nothing could be found in favour of the accused in cross-examination of PW.1 to disbelieve his testimony. Insofar as receipt of injuries by PW.1, in the hands of accused is concerned, it has support from the medical evidence. PW.2 testified the quarrel between the accused and PW.1. Absolutely, PW.1 had no reason, whatsoever, to fabricate a case against the accused. Insofar as receipt of injuries by PW.1, in the hands of accused is concerned, it has support from the medical evidence. PW.2 testified the quarrel between the accused and PW.1. Absolutely, PW.1 had no reason, whatsoever, to fabricate a case against the accused. Under the circumstances, both the Courts below found favour with the case of the prosecution and rightly believed the evidence of PW.1 and PW.2. The finding of facts recorded by both the Courts below that the accused caused injuries to PW.1 are proper. It is also the contention of learned counsel for the petitioner that it is doubtful whether the case comes under the purview of Section 326 IPC for non-seizure of weapon and there appears to be provocation between PW.1 and the accused. By canvassing such a contention, learned counsel would seek to reduce the term of imprisonment imposed against the accused. 22. Admittedly, it is a case where the Investigating Officer did not clarify anything as to why he could not seize the weapon used by the accused. The charge against the accused is that he caused injuries to PW.1 with dangerous weapon but the narrative description of weapon, if any, or reason for its non-seizure when the accused brought in evidence. Apart from this, it is quietly evident from the evidence of PW.1 and PW.2 that the incident was occurred on a sudden provocation. As seen from the evidence of PW.1, absolutely, there was no witness because the accused allegedly cut down the bund of his land. Even according to him, on suspicion only he questioned the accused. So, PW.1 had no reasonable cause to entertain a suspicion that accused cut away the bund in his land so as to allow the pesticide sprinkled water to flow into his land. So, the act of PW.1 in questioning the accused might have provoked him to beat PW.1. Apart from this, if the evidence of PW.2 is considered, both accused and PW.1 quarreled with each other and they got separated them and then he went away from the scene. So, the evidence of PW.2 is that they intervened in the incident and got separated accused and PW.1 from each other. Apart from this, if the evidence of PW.2 is considered, both accused and PW.1 quarreled with each other and they got separated them and then he went away from the scene. So, the evidence of PW.2 is that they intervened in the incident and got separated accused and PW.1 from each other. So, all this goes to show that the incident in question was happened in a spur of moment and due to grave and sudden provocation, when PW.1 questioned the accused without there being any basis as to why he cut down the bund in his land. At this juncture, it is pertinent to refer here Section 335 IPC, which runs as follows: “ 335. Voluntarily causing grievous hurt on provocation – Whoever voluntarily causes grievous hurt on grave and sudden provocation, if he neither intends nor knows himself to be likely to cause grievous hurt to any person other than the person who gave the provocation, shall be punished with imprisonment of either description for a term which may extend to four years, or with fine which may extend to two thousand rupees, or with both.” 23. Section 326 IPC also means that except as provided in Section 335 IPC, the Section 326 IPC has to be looked into. 24. Having regard to the above, this Court is of the considered view that the allegations of the prosecution and the evidence on record would clearly attract the offence under Section 335 IPC but not Section 326 IPC. Both the Courts fell in error in overlooking certain circumstances born out from the evidence, which is clearly evident from the record. I find considerable force in the submission of learned counsel for the revision petitioner that the case on had would not attract Section 326 IPC. 25. Having regard to the above, this Court is of the considered view that the conviction and sentence of the accused under Section 326 IPC is to be modified to Section 335 IPC accordingly. 26. In the result, the Criminal Revision Case is allowed in part modifying the conviction and sentence imposed against the accused in C.C. No.81 of 2005 under Section 326 IPC to that of Section 335 IPC and reducing the imprisonment imposed against the accused from that of six (6) months to three (3) months. 27. 26. In the result, the Criminal Revision Case is allowed in part modifying the conviction and sentence imposed against the accused in C.C. No.81 of 2005 under Section 326 IPC to that of Section 335 IPC and reducing the imprisonment imposed against the accused from that of six (6) months to three (3) months. 27. The Registry is directed to take steps immediately under Section 388 Cr.P.C. to certify the order of this Court along with the trial Court record, if any, to the trial Court on or before 18.03.2024 and on such certification, the trial Court shall take necessary steps to carry out the remaining sentence imposed against the revision petitioner as revised in this judgment and to report compliance to this Court. A copy of this order be placed before the Registrar (Judicial), forthwith, for giving necessary instructions to the concerned Officers in the Registry. Consequently, Miscellaneous Applications pending, if any, shall stand closed.