ORDER
V. Gopalaswamy, J.
1. This revision is preferred against the judgment dated 27-10-1984 passed by the Second Additional Sessions Judge, Berhampur, in Criminal Appeal No. 66 of 1983 (8/83-G) confirming the order of the Judicial Magistrate, First Class, Bhanjanagar, in G. R. Case No. 217 of 1987, convicting the petitioner under Section 323, I.P.C. and sentencing him thereunder to undergo rigorous imprisonment for one year and to pay a fine of Rs. 500/-, in default, to undergo rigorous imprisonment for a further period of one year, with a direction that out of the fine amount, if realised, an amount of Rs. 250/- be paid to P.W. 3 Balkrishna Bisoi.
2. On a proper consideration of the evidence of P.Ws. 1 to 4 and the evidence of the doctor (P.W. 5), both the Courts below have come to a finding that the petitioner had voluntarily caused grievous hurt to Balakrishna Bisoi (P.W. 3) by giving a blow on his neck with a Kati and thereby rendered himself liable under Section 326, I.P.C.
3. At the outset the learned Counsel for the petitioner contended that the prosecution has not satisfactorily proved that the injury caused on the person of P.W. 3 was grievous, in nature and therefore, the petitioner is liable under Section 324, I.P.C. and not under Section 326, I.P.C. That on account of the blow given by the petitioner with a Kati P.W. 3 sustained an incised wound on his neck, is not challenged at the time of hearing. Dr. Sahu (P.W. 5) deposed that on 7-6-1977, at about 9.30 P.M., he examined Balakrishna Bisoi (P.W. 3) and found an incised wound on the back of his neck and the age of the injury was within about half an hour from the time of his examination. So it is evident that the injured got himself examined by the doctor soon after the occurrence. The doctor opined that the injury noticed by him on the neck of P.W. 3 was grievous in nature. He proves the medical certificate Ext. 2 given by him which also mentions that the injury sustained by P.W. 3 was grievous; in nature. The learned Counsel for the petitioner contended that the doctor had not explained how the injury was grievous in nature. But then there is absolutely no cross-examination of the doctor regarding his opinion that the injury in question was grievous in nature. So the evidence of the doctor that the injury was grievous in nature goes unchallenged. In any event the medical evidence can be safely relied on at least for coming to a finding that there was an incised wound on the neck of P.W. 3 caused by the Kati blow given by the petitioner. The incised wound on the beck of P.W. 3 inflicted with a sharp-edged weapon like a Kati must be considered serious enough so as to 'endanger the life' of P.W. 3, within the meaning of Clause 8 of Section 320, I.P.C. and, therefore, the same must be held to be a grievous injury. So the conviction under Section 326, I.P.C. is justified.
4. The case was tried by the Subordinate Judge, Bhanjanagar, acting as the Court of a Judicial Magistrate, First Class. Under Section 29(2), Cr. P.C. as such Magistrate, of the First Class, he may pass a sentence of imprisonment for a term not exceeding three years. In this case while convicting the accused under Section 326, I.P.C. the learned magistrate sentenced him to rigorous imprisonment for one year and also to pay as fine of Rs. 500/-, in default, to undergo rigorous imprisonment for a further period of one year, It is the legality of the award of one year's R.I. in default of payment of fine, which is being questioned by the learned Counsel for the petitioner.
5. Where the sentence is imprisonment and fine, as in the present case, Section 30, Cr. P.C. should be read with Section 65, I.P.C. as well. Section 30, Cr. P.C. reads thus:
Sentence of imprisonment in default of fine- (1)The Court of a Magistrate may award such term of imprisonment in default of payment of fine as is authorised by law:
Provided that the term -
(a) is not in excess of the powers of the Magistrate under Section 29,
(b) shall not, where imprisonment has been awarded as part of the substantive sentence, exceed one-fourth of the term of imprisonment which the Magistrate is competent to inflict as punishment for the offence otherwise than as imprisonment in default of payment of the fine. xx xx xx xx
Section 65, I.P.C. reads thus:
Limit to imprisonment for non-payment of fine, when imprisonment and fine awardable.- The term for which the Court directs the offender to be imprisoned in default of payment of a fine shall not exceed one-fourth of the term of imprisonment which is the maximum fixed for the offence, if the offence is punishable with imprisonment as well as fine.
6. Chhajulal v. State of Rajasthan : 1972CriLJ1184 is a case under the old Cr. P.C. where the Magistrate, First Class, was empowered to impose sentence of imprisonment not exceeding two years. Section 33 of the old Code corresponds to Section 30(1)(b) of the new Code. In that case, the sentence imposed by the Magistrate, First Class, for the offence under Section 406, I.P.C., in default of payment of fine, was reduced from one year to six months, because that was the maximum that could be awarded by him in case of default of payment of fine. In that context the Supreme Court observed thus (Paras 6 and 10):
It is clear that Section 65 only fixes a maximum period of imprisonment which can be awarded for default of payment of fine whenever any Court convicts. On the other hand, Section 33, Criminal Procedure Code governs specifically the powers of 1st Class Magistrate on this matter....
xx xx xx xxIt is obvious that the two sections must be harmonised. This means that, while a Magistrate's powers are specifically limited by Section 33, Criminal Procedure Code, they must also be so exercised as not to contravene Section 65 Indian Penal Code.
Relying on the above quoted observations of the Supreme Court, I hold that where the sentence is imprisonment and fine, while awarding imprisonment in default of fine, there are two limitations as to the term of such imprisonment, the one imposed by Section 65, I.P.C. and the other by Sub-section (1Kb) of Section 30 read with Section 29, Cr. P.C.
7. Section 326, I.P.C. is punishable with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. But then because of Section 29(2), Cr. P.C. the learned Magistrate, First Class, cannot impose the maximum amount of imprisonment prescribed by this Section. So also he cannot, by resorting to Section 65, I.P.C., award a period of imprisonment, in default of payment of fine, on the erroneous assumption that he has the power to award the maximum sentence prescribed by Section 326, I.P.C.
In the facts of the present case on a reading of Sections 29 and 30(1)(b), Cr. P.C. it is clear that in this case the Magistrate, First Class, could not have awarded more than nine months imprisonment in default of payment of fine, because the maximum sentence he could have imposed is three years or thirty-six months and one-fourth of it is nine months. Hence the order of the learned Magistrate that in default of payment of fine, the petitioner should suffer imprisonment for a further period of one year is contrary to law and, therefore, the same is hereby set aside.
8. While imposing a sentence of fine, due regard must be had to the means of the accused to pay the fine. In this case the petitioner is a cultivator and he is sentenced to substantive term of imprisonment. Considering the facts and circumstances of the case, I think imposition of a sentence of fine of Rs. 200/- (two hundred) would sufficiently meet the ends of justice. Hence, while confirming the order of conviction passed against the petitioner under Section 326, I.P.C. and maintaining the sentence of imprisonment, the sentence of fine imposed is reduced from Rs. 500/- to Rs. 200/-.
9. In the result, the petitioner is convicted under Section 326, I.P.C. and sentenced thereunder to undergo rigorous imprisonment for one year and to pay a fine of Rs. 200/- (rupees two hundred), in default, to undergo rigorous imprisonment for a further period of one month and from out of the fine amount if realised, a sum of Rs. 100/- (rupees one hundred) be paid to the injured Balakrishna Bisoi (P.W. 3). With the above modification of the sentence, the revision is dismissed.