JUDGMENT : KAUSHIK GOSWAMI, J. Heard Mr. M. K. Sharma, learned counsel appearing for the revision petitioner. Also heard Mr. M. P. Goswami, learned Additional Public Prosecutor, Assam appearing for the respondents. 2. By way of this application under Section 397 of the Code of Criminal Procedure, 1973 read with Section 401 of the said Code the petitioner is assailing the impugned judgment and order dated 27.10.2014 passed by the learned Sessions Judge, Kamrup (R), Amingaon in Criminal Appeal No.29/2014 upholding the judgment and order dated 26.06.2014 passed by the learned SDJM(M), Rangia in G.R. Case No.138/2009 whereby the accused/petitioner was convicted under Section 326 of the INDIAN PENAL CODE and sentenced him to undergo simple imprisonment for one year and to pay a fine of Rs.10,000/-, in default, to suffer simple imprisonment for a period of one month. 3. The prosecution case, in brief, is that on 15.02.2009 one Sri Madan Das had lodged an F.I.R. before the Officer-in-Charge of Rangia Police Station alleging inter-alia that the accused/petitioner and his brother wrongfully restrained the informant’s brother (PW-1) and caused grievous hurt upon him and to that effect the police have been requested to take action against them. Accordingly, a case was registered. Thereafter, upon completion of investigation, the police submitted charge-sheet against the accused/petitioner and the co-accused under Sections 34 1/326/294/506/34 IPC. 4. Upon trial being commenced, as many as 8 witnesses have been examined by the prosecution side and they have also been cross-examined by the defence. The accused/petitioner and the co-accused were thereafter examined under Section 313 Cr.P.C wherein the defence case is of total denial. However, the accused/petitioner examined none in support of their defence. 5. Thereafter, upon perusing the materials on record the learned SDJM(M), Rangia delivered the impugned judgment and order dated 26.06.2014 whereby though the co-accused was acquitted of the charges, however, the accused/petitioner has been found guilty under Section 326 IPC and accordingly convicted and sentenced to undergo simple imprisonment for one year and to pay a fine of Rs.10,000/-, in default, to suffer simple imprisonment for a period of one month. Aggrieved by the aforesaid conviction and sentence, an appeal was preferred. However, the learned Appellate Court after analyzing the evidence on record by judgment and order dated 27.10.2014 was pleased to dismiss the same. Situated thus, the present revision petition. 6. Mr. Aggrieved by the aforesaid conviction and sentence, an appeal was preferred. However, the learned Appellate Court after analyzing the evidence on record by judgment and order dated 27.10.2014 was pleased to dismiss the same. Situated thus, the present revision petition. 6. Mr. M. K. Sharma, learned counsel for the petitioner submits that both the Courts below have failed to appreciate the evidence on record in true perspective. He further submits that despite one material witness, viz., Amrit Das being present at the place of occurrence at the relevant time with whom the victim PW-1 was talking about the disputed drain, the prosecution having not examined him, the impugned judgment and order of conviction stands vitiated. He further submits that both the Courts ought to have considered the factum of injury and in relation to the facts and circumstances assailed by the prosecution including the medical treatment, period of treatment, date of treatment and the statement of the Medical Officer but having not considered the same, the impugned conviction and sentence is liable to be interfered with. He further submits that there is lack of confidence of all the witnesses as to the injury and treatment of the victim PW-1. He further submits that all the alleged eye-witnesses being family members, considering that there is a dispute as regards a drain between the parties, the same are not trustworthy and hence, the judgment of the Trial Court as well as the Appellate Court in convicting the accused/petitioner by relying the said related eye-witnesses is totally erroneous and perverse. He further submits that there was no evidence as to the use of such particular weapon or any expert’s opinion which conclusively proves that only the accused/petitioner has inflicted injury and that too, only by the said weapon. As such, in absence of such material evidence both the Courts ought not to have sentenced the accused/petitioner. He further submits that the impugned judgment and order accordingly suffers from illegality. He further submits that the Courts while passing the judgment and order have denied the benefit under the Probation of Offenders Act, 1958 in considering the fact that both the informant and the accused/petitioner are neighbours to each other and in relation to the legislative intent as well as other law and equity. He further submits that the Courts while passing the judgment and order have denied the benefit under the Probation of Offenders Act, 1958 in considering the fact that both the informant and the accused/petitioner are neighbours to each other and in relation to the legislative intent as well as other law and equity. He further submits that the accused/petitioner is a daily wage earner and is residing in the aforesaid locality along with his wife and two sons aged about 6 years and 11 years old and he is the only bread earner of his family. Hence, the benefit under the relevant provision of the Probation of Offenders Act, 1958 ought to have been given to him. 7. In support of the aforesaid submission, the learned counsel for the petitioner relies upon the following decisions :- 1) Habeeb Mohd. Vs. State of Hyderabad [ 1954 SCR 475 ] 2) Thulia Kali Vs. The State of Tamil Nadu [ (1972) 3 SCC 393 ] 3) Sawal Das Vs. State of Bihar [ (1974) 4 SCC 193 ] 4) Kipa Sero Vs. State of Arunachal Pradesh [ 2005 (4) GLT 86] 5) Sadhan Chowdhury Vs. State of Tripura [ (2007) 3 GLT 226 ] 8. Per contra, Mr. M. P. Goswami, learned Additional Public Prosecutor for the State submits that merely because the eye-witnesses are family members of the victim PW-1, there is no hard and fast rule for relying on such testimonies for convicting the accused/petitioner under Section 326 IPC. He further submits that before convicting, the Court shall, however, examine as to whether such related eye-witnesses stands the test of starling witness. He further submits that in the present case the testimony of the eye-witnesses being fully corroborated by the medical expert’s evidence, the testimony of the eye- witnesses are wholly reliable and credible and hence the impugned judgment and order of conviction based on evidence ought not to be interfered with by this Revisional Court. He further submits that non-examination of one person as claimed by the accused/petitioner is of no consequence inasmuch as the other witnesses who have witnessed the assault has been examined and have remained fully consistent right from the initial stage. He further submits that the defence has not shaken their testimonies during cross-examination. He further submits that the defence has also not given any explanation and/or adduced any evidence in support of their defence. He further submits that the defence has not shaken their testimonies during cross-examination. He further submits that the defence has also not given any explanation and/or adduced any evidence in support of their defence. 9. I have given my prudent consideration to the arguments advanced by the learned counsel appearing for the parties and have perused the materials available on record. I have duly considered the case-laws cited at the Bar. 10. It appears that on the basis of an F.I.R. being lodged by the PW-2 the investigation commenced leading to submission of charge-sheet and trial. It appears that PW-1, who is the victim PW-1 himself, has deposed that the accused/ petitioner gave blows on his left hand with an axe on the date of the incident when he tried to clear the drain by removing the blockade. He further deposed that the accused/petitioner came and slashed him from behind on his left hand and at that time his brother Amrit Das was present. He further deposed that he fell down and then he was taken to Rangia Hospital and thereafter to the Gauhati Medical College Hospital for treatment. During cross- examination he stated that the house of the accused/petitioner is contiguous to their house. Though a suggestion has been made that there is enmity between them, however, he denied the same. 11. PW-2, the informant deposed that on the date of the incident around 6:00 a.m., his brother Madan Das was slashed by the accused/petitioner with an axe on his left hand and at that time he was present at the courtyard of their house from where he witnessed the occurrence. He further deposed that on the date of the incident there was an altercation in the accused/petitioner and Bhupen were in one side and the PW-1 on the other side and hearing the altercation he proceeded to the place and before reaching the place the accused/ petitioner gave blow on the left hand of Madan by an axe. He further deposed that thereafter he took the victim PW-1 to Rangia Hospital by 108 ambulance and later on he was taken to Guwahati Medical College Hospital. He further deposed that the altercation took place over the blockade of a drain. During cross-examination he denied the suggestion that there was dispute from earlier over the drain. 12. He further deposed that thereafter he took the victim PW-1 to Rangia Hospital by 108 ambulance and later on he was taken to Guwahati Medical College Hospital. He further deposed that the altercation took place over the blockade of a drain. During cross-examination he denied the suggestion that there was dispute from earlier over the drain. 12. PW-3, who is the sister-in-law of the victim PW-1, deposed that on the date of the incident when she was cleaning utensils near her tube-well she heard a hue and cry and proceeded to the place and saw the accused/petitioner giving blow on the left hand of the victim PW-1 by an axe. She further deposed that the victim PW-1 was sent to hospital by 108 ambulance thereafter. She further deposed that the incident occurred due to blockade of the drain. During cross-examination she deposed that there was a dispute from earlier between the parties over the drain and thereby two groups in the village and both the accused/petitioner and the injured were members of the two different groups. 13. PW-4, who is another brother of the victim PW-1, deposed that he saw the accused/petitioner slashing the victim PW-1 by means of an axe. He further deposed that there was a quarrel between them over a blockade of a drain. 14. PW -5, who is another sister of the victim PW-1, also supported the testimonies of PWs-1, 2, 3 and 4. 15. PW-6, who is an independent witness, deposed that he arrived at the house of PW-1 after hearing about the incident and on reaching his house he noticed injury on the left hand of the victim PW-1. During cross-examination he deposed that he does not know about the standing dispute between them. 16. PW-7, who is the Medical Officer who examined the victim PW-1 on the next day of the occurrence, deposed that on 16.02.2009 on police requisition he had examined the victim PW-1 and as per X-ray found fracture of the forearm accompanied by incised looking wound of 7 cm x 2 cm size in left forearm. He further opined that the injury was grievous in nature and caused by sharp cutting weapon. During cross-examination, he clarified that the X-ray plate is not available on the record at the time of his deposition in the Court. 17. He further opined that the injury was grievous in nature and caused by sharp cutting weapon. During cross-examination, he clarified that the X-ray plate is not available on the record at the time of his deposition in the Court. 17. What transpires from the above is that the prosecution relies upon the testimonies of the eye-witnesses i.e. PWs-1, 3, 4 and 5 in order to sustain the conviction of the accused/petitioner. It appears that PW-1 is the victim PW-1 himself and the PWs-3, 4 and 5 are his brother and sisters. Eye-witnesses merely because they are related cannot be branded as liars in toto. On the contrary, such testimony has to be evaluated carefully. The courts are required to be realistic in their exception from such witnesses. The test is whether it was possible for such eye-witness to be present at the place of occurrence and is there anything inherently improbable and/or unbelievable. Therefore, unless the testimony of such related eye-witnesses is shaken by clear infirmity, the same is not required to be thrown away. [Ref : (1990) 3 SCC 266 , (2013) 11 SCC 688 ]. 18. In the present case, it appears that the eye-witnesses, i.e., PWs- 3, 4 and 5 have categorically narrated the manner in which the accused/petitioner has inflicted the blow on the victim PW-1. Such narration of the eye-witnesses to the assault is also fully corroborated by the victim’s own testimony. It further appears that the victim PW-1 as well as the eye-witnesses, i.e., PWs- 3, 4 and 5 have clearly deposed in the Court consistently that the accused/petitioner assaulted the victim PW-1 in his left hand with an axe. The medical evidence fully corroborates the nature of the injury described by the eye-witnesses. Though it has been brought to the notice of the Court that there is evidence to indicate that there was a dispute between the families of the accused/petitioner and the victim PW-1, however, the fact that on the day of the occurrence when the victim PW-1 was clearing the drain in question, the accused/petitioner came from behind and slashed him in his hand with an axe is clearly established. There is nothing inherently improbable and/or unbelievable in the testimony of the eye witnesses, i.e., PW-1, 3, 4 and 5; their presence in the place of occurrence is also natural. There is nothing inherently improbable and/or unbelievable in the testimony of the eye witnesses, i.e., PW-1, 3, 4 and 5; their presence in the place of occurrence is also natural. Hence, testimony of the eye witnesses, i.e. PW-1, 3, 4 and 5 are found to be trustworthy and wholly reliable for sustaining a conviction against the accused/petitioner. It is clearly evident also from the evidence of the Medical Officer that in view of the injury inflicted by the accused/petitioner there was a fracture in the left forearm of the victim PW-1. Hence, this case squarely falls under List-7 of Section 320 of the IPC. 19. It appears that both the Trial Court and the Appellate Court has carefully assessed and evaluated the evidence available on record and has accordingly recorded a finding of guilt against the accused/petitioner. Merely because the Investigating Officer was not examined and/or the seized weapon was not produced in the Court does not, in the facts of the present case, makes the prosecution case vitiated. 20. The case-laws cited by the learned counsel appearing for the accused/petitioner is distinguishable in facts. Likewise, for not examining another brother of the victim PW-1 i.e. Amrit Das, who is stated by the PW-1 to have been present at the time of the incident, the prosecution case is not vitiated inasmuch the other brothers and sisters of the victim PW-1 who have witnessed the incident were examined and have corroborated the case of the prosecution fully in material particulars. Hence, this Court finds that no illegality or infirmity having been committed by the Trial Court as well as by the Appellate Court in convicting the accused/petitioner. 21. Considering that the Trial Court as well as the Appellate Court has sentenced the petitioner under Section 326 IPC for simple imprisonment for one year jail terms, this Court finds the same not be excessive in the facts and circumstances of the case. That being so, the Revision Petition fails and is accordingly dismissed. 22. It appears from the record that the accused/petitioner was allowed to remain on previous bail vide order dated 05.01.2015 passed by this Court in Crl. M.C. No.1058/2014 arising out of the present Crl. Rev. P. No.525/2014. That being so, the Revision Petition fails and is accordingly dismissed. 22. It appears from the record that the accused/petitioner was allowed to remain on previous bail vide order dated 05.01.2015 passed by this Court in Crl. M.C. No.1058/2014 arising out of the present Crl. Rev. P. No.525/2014. In view of the above, the accused/petitioner is directed to surrender before the learned SDJM(M), Rangia, within a period of one month from today, to serve out the remaining part of the sentence. After expiry of such period, his bail bond shall stand cancelled. Send back the LCR.