Dholiya vs The State of Rajasthan and Others

Nisha Gupta, J.—This criminal revision petition has been filed against the order dated 22nd August, 2000 passed by Additional Sessions Judge, Bandikui, District Dausa in Criminal Appeal No. 1/99., whereby conviction of the respondents have been set aside. The short facts of the case are that petitioner lodged a written report Ex.P.6 at Police Station on 12.3.1994 stating therein that when Heera and Chhajya were working in the field, the accused respondents and other persons came there with deadly weapon started beating in which Chhajya, Kishan and Dholiya etc. have received simple and grievous injuries on which FIR has been registered. After conclusion of the Investigation, charge sheet has been filed. Present petitioner has been convicted for the offences under Sections 147, 148, 323, 324 and 326 read with 149 IPC by the trial court, but on appeal, respondents have been acquitted for the offences under Sections 147, 326 or 326 read with 149 IPC and for the other offences u/s 148, 323 and 324 IPC, benefit of probation has been extended to the respondents, hence, this revision petition.

Counsel for the complainant has restricted their submissions only with regard to offence u/s 326 IPC. His contention is that as the Radiologist has not been produced, offence u/s 326 IPC has not been found to be established by the Appellate Court. Inspite of fact that injured and other witnesses have stated that Kishan received grievous cut on his finger and Dr. Prakash Chand has also supported the fact of the injury, hence, the finding of the acquittal for the offence u/s 326 IPC is perverse and liable to be reversed.

Per contra, the contention of the respondents is that in absence of Radiologist and X-Ray report, offence u/s 326 IPC could not be made out and findings of the appellate court are in conformity with the law and no interference is needed.

Heard learned counsel for the parties and perused the impugned judgment as well as record of the case.

It is true that P.W. 4, Kishan, who is the injured, has stated that he received a cut in his finger and other witnesses have also stated so. To put a injury in the definition of grievous injury, the relevant provision is Section 320 IPC. Section 320 sub-clause (7) says that if there is a fracture of a bone, it will designate as grievous injury. Admittedly, case of the prosecution is that the injured Kishan has suffered fracture of the finger bone. The prosecution has not placed the case of grievous injury in any other way contained in Section 320, but P.W. 1 Dr. Prakash Chand has not stated anything that Kishan has suffered any fracture over his finger and he has only deposed that he advised X-Ray for injury No. 1, meaning thereby, in absence of X-Ray, he could not ascertain the nature of the injury and Radiologist, X-Ray Plates have not been produced before the Court below and Appellate Court has rightly considered the fact that in absence of Radiologist and X-Ray Plates, the fact of causing fracture could not be established.

The contention of the present petitioner is that only by bare eyes, it can be ascertained that Kishan has suffered grievous injury and his contention is that the Court below has also of the same opinion. In the statement of Kishan P.W. 4, it has not been observed by the Court below that he has suffered any grievous injury and further more P.W. 1 Dr. Prakash Chand, who has medically examined P.W. 4 Kishan, who is doctor, has not stated that the Kishan has suffered grievous injury. To ascertain the nature of the injuries, the injured Kishan has been referred for X-Ray and X-Ray plates and evidence of Radiologist is missing in the present case, hence, there seems to be no infirmity in the findings of the Appellate Court, the Appellate Court has rightly considered he fact that in absence of Radiologist evidence, offence u/s 326 IPC has not been proved beyond reasonable doubt. Finding of acquittal is based on reasonable appreciating of evidence and no interference is needed. Consequently, the revision petition is liable to be dismissed and the same is hereby dismissed.