Suraj @ Satish vs State Gnct Of Delhi

Chandrasekharan Sudha, J

This appeal under Section 374 of  the Code of Criminal Procedure, 1973 (the Cr.P.C.) has been filed by accused number 1 (A1), in Sessions Case No. 1511/2016 on the file of Additional Sessions  Judge,  South  East  District,  Saket  Courts,  Delhi, assailing the judgment dated 21.03.2017 and order on sentence dated 24.03.2017 as per which he has been convicted for the offence punishable under  Section 324 read  with Section 34 of the Indian Penal Code, 1860 (the IPC).

The prosecution case is that on 01.03.2013 at about 7:45  PM  at  Ali  Fields  Village,  A1  and  A2  voluntarily caused  hurt to PW2, by stabbing him  with a knife and giving fist blows. A1 and A2 also committed robbery of one mobile phone and ₹5,000/- from PW2.

On the basis of Ext. PW2/A FIS of PW2, given on 02.03.2013, Crime No. 79 of 2013, Sarita Vihar Police Station, that is, Ext. PW1/A FIR was registered by PW1, Constable. PW12 conducted investigation into the crime and on completion of the same, filed the charge-sheet/final report alleging commission of the offences punishable under Sections 394, 397 and 34 IPC.

When the accused persons were produced before the jurisdictional  magistrate,  all  the  copies  of  the  prosecution  records were furnished to them as contemplated under Section 207 Cr.P.C. Thereafter,  the  case  was  committed  to  the  Court  of  Session.  After hearing  both  sides,  the  trial  court,  as  per  order  dated  03.02.2014, framed a Charge under Sections 392, 397 read with 34 IPC against A1 and A2. Additionally, the trial court also framed a Charge under Section 174A IPC against A2. The charge was read over and explained to A1 and A2, to which they pleaded not guilty.

On behalf of the prosecution, PW1 to 15 were examined and Exts. PW1//A, PW2/A-C, PW3/A, PW4/A, PW5/A- H, PW6/A, PW7/A, PW9/A, PW10/A, PW11/A-C, PW12/A-E, PW13/A-D, and PW15/A-D were marked in support of the prosecution case.

On behalf of A2, DW1 was examined and Ext. DW1/A was marked in support of the defence case.

After the close of the prosecution evidence, A1 and A2 were questioned under Section 313(1)(b) Cr.P.C. regarding the incriminating circumstances appearing against them in the evidence  of  the  prosecution.  They  denied  all  those  circumstances and  maintained  their  innocence,  stating  that  they  had  been  falsely implicated  in  the  present  case  as  PW2  was  having  illicit  relations with A1’s sister who is the wife of A2.

After questioning the accused persons under Section 313(1)(b) Cr.P.C., compliance of Section 232 Cr.P.C. was mandatory. In the case on hand, no hearing as contemplated under Section 232 Cr.P.C. is seen done by the trial court. However, non- compliance of the said provision does not ipso facto vitiate the proceedings  unless omission  to  comply with  the  same  is  shown  to have resulted in serious and substantial prejudice to the accused (see  Moidu  K.  versus  State  of  Kerala,  2009  (3)  KHC  89;  2009 SCC OnLine Ker 2888). Here, appellant/A1 has no case that non- compliance of Section 232 Cr.P.C. has caused any prejudice to him.

On consideration of the oral and documentary evidence and after hearing both sides, the trial court, vide the impugned judgment dated 21.03.2017 found A1 and A2 guilty of offence punishable  under  Section  324  read  with  34  IPC.  A2  has  also  been found guilty of offence punishable under Section 174A IPC. Accordingly, vide order on sentence dated 24.03.2017, A1 and A2 have  been  sentenced  to  rigorous  imprisonment  for  a  period  of  03 years each along with fine of ₹1,500/-, for the offence punishable under Section 324 read with 34 IPC, and in default of payment of fine, to simple imprisonment for 02 months. A2 has also been sentenced to rigorous imprisonment  for a period of 03 years along with fine of ₹1,500/-, for the offence punishable under Section 174A IPC, and in default of payment of fine, to simple imprisonment for 02 months. Benefit under Section 428 Cr.P.C has also been granted. Aggrieved, A1 has come up in appeal. The registry reports that no appeal has been filed by A2 till date.

The only point that arises for consideration in this appeal is whether the conviction entered and sentence passed against the appellant/A1 by the trial court are sustainable or not.

The  learned  Amicus  Curiae  for  the  appellant  submitted that  the  accused  persons  and  PW2  were  known  to  each  other  and there was a dispute inter se the parties. He submitted that the testimony  of  DW1,  wife  of  the  appellant/A1  corroborates  the  fact that  there  was  an  illicit  relation  between  PW2  and  the  wife  of  A2 and  that  PW2  had  threatened  the  accused  persons.  Therefore,  A1 and A2 have instituted separate criminal proceedings against PW2. He further submitted that the weapon of offence and the stolen articles, i.e., PW2’s mobile phone and cash of ₹5,000/-, was never recovered/seized by the police at the instance of the accused.

11.1. Further, PW2, never disclosed to doctor about the alleged incident or how the injuries were sustained or that his belongings had been stolen. PW2 did not even inform the police. It was the duty officer posted at the hospital, who reported the matter. There is also inordinate delay in lodging the complaint. The hospital where PW2 was treated was at least an hour away from  the scene  of occurrence. There were several  other  hospitals nearby where PW2 could have availed treatment. No reason(s) are given as to why PW2 was taken for treatment to a far away hospital.  It  was  also  pointed  that  the  auto  driver  who  is  alleged  to have  taken  PW2  to  the  hospital  was  never  examined.  It  was  also submitted that there are contradictions and inconsistencies in the statements of PW5 and PW6. In support of the arguments, the learned  Amicus  Curiae  referred  to  the  dictums  in  Wahid  v.  State Government  of  NCT  of  Delhi,  (2025)  3  SCC  341,  Ravi  Kumar v. State [NCT of Delhi], 2024 SCC OnLine Del 9628 and State of Maharashtra v. Ashok Marotirao Tekale, 2025 SCC OnLine Bom 528.

On the other hand, it was submitted by the learned Additional Public Prosecutor that there is no infirmity in the impugned  judgment  calling  for  an  interference  by  this  Court.  The testimony of PW2 is corroborated by the medical evidence. The materials on record is sufficient to convict the accused persons, argued the prosecutor.

Heard both sides and perused the records.

I shall  briefly  refer  to  the  evidence  on  record  relied  on by  the  prosecution  in  support  of  the  case.  In  Ext.  PW2/A  FIS/FIR of PW2, recorded on 02.03.2013, it is stated thus: “.....On 01.03.2013 at 6:00 PM after finishing my office work I went to meet  someone  in  Ali  Village.  After  getting  off  at  the  Ali  Village bus stand, I was walking towards the fields in Ali Village. As soon as I entered the field through a broken wall, three boys stopped me. One  of  them is  named  Prem  Singh  (A2),  whom  I have  known  for about  two  years;  he  and  two  other  boys  stopped  me.  Prem  Singh took ₹5,000 which I had withdrawn from the ATM and my mobile phone  from  my  pocket.  When  I  resisted,  the  two  boys  with  Prem Singh, one of whom was about 5'2" tall, of dusky complexion and medium built, grabbed  my left hand. The second person, who was about 5'6" tall, dusky, and of thin build (whom Premsingh was addressing  as  'Chhotu'),  grabbed  my  right  hand.  Premsingh  pulled out a knife from under his shirt and stabbed me 2-3 times in my right thigh and also stabbed me in the back. The other two boys with Prem Singh punched me on the face. I was injured. Prem Singh and his two companions fled from the field towards the road. I somehow managed to pull  myself together, took an auto- rickshaw to Mata Chanan Devi Hospital in Janakpuri, and with someone's  help  at  the  hospital,  I contacted  Dilip,  an  acquaintance. Dilip has admitted me to the hospital. Legal action should be taken against Prem Singh and his two other associates whom I can identify----.”

PW2 when examined before the trial court on 07.03.2014  stands  by  his  case  in  the  FIS/FIR.  He  deposed  that  he was employed as a peon at Foundation Company, 6 Institutional Area, Katwariya Sarai. On March 1, 2013, after work at approximately 6:00 pm, he proceeded to Ali Village. Upon deboarding  a bus  and  traveling  on  foot,  he  reached  the  vicinity  of the village by about 7:45 pm. While he was in a nearby park, three persons apprehended him, one of whom was A2. One assailant caught hold of him from behind while another gave him fist blows, during  which  time  A2  demanded  money.  A2  forcibly  robbed  him of ₹5,000 and a Nokia mobile phone. A2 stabbed him thrice with a knife on his thigh and once on his back, in addition to striking him on the head with a belt. The other two persons gave him fist blows on  the  face.  Thereafter,  the  assailants  fled  the  scene.  He  managed to hail a three-seater auto rickshaw (TSR). He became unconscious. He regained his senses at Mata Chanan Devi Hospital. He informed the police of the incident the following morning,  resulting  in  the  recording  of  Ex.  PW2/A  FIS/FIR.  PW2 identified A1 and A2 during the trial. PW2 deposed that the amount  stolen  from  him  had  been  withdrawn  from  his  Axis  Bank account. The relevant bank statement has been marked as Ex. PW2/C, which was seized vide memo Ex. PW2/B. His blood- stained clothing had been seized by the police.

PW5, Police Constable, Sarita Vihar, Police Station when  examined  before  the  trial  court  deposed  that  on  25.03.2013, he had joined the investigation led by PW12, Sub Inspector Yogendra Singh. On receiving secret information regarding the whereabouts of A1 the police team proceeded to Meethapur, Jaitpur, Tanki Road. At approximately 4:00 pm, acting on the instance of a secret informer, they apprehended A1. PW5 correctly identified A1 during the trial. Steps for conducting Test Identification Parade (TIP) was initiated. But A1 refused to participate in the same. PW5 further deposed that on 07.09.2013 he rejoined the investigation team which was led by PW6, Sub Inspector Brahm Prakash. A2 was produced before the Saket District Court, in connection with another case. According to PW5, PW6 interrogated A2 after obtaining the necessary permission from the court. Thereafter, A2 was formally arrested vide arrest memo Ex. PW-5/E.

PW6, Sub Inspector, Sarita Vihar Police Station deposed that on 25.03.2013 he joined the investigation team of PW12. PW6 also deposed regarding the arrest of A1. PW6 also identified A1 during the trial.

PW10, doctor, AIIMS, Mata Chanan Devi Hospital, Delhi when examined deposed that she had seen Ex. PW10/A MLC of PW2. She identified the signatures of Dr. Lalit Kumar, who had prepared the MLC. According to PW10, Dr. Lalit Kumar had left the service of the hospital. PW10 in her cross examination deposed that she has no personal knowledge regarding the specific facts of the case. She stated that since the injuries sustained by the victim were recorded as "stab injuries," the weapon used by the offender would have been a sharp object.

PW12, Sub Inspector, Sarita Vihar, Police Station when examined before the trial court deposed that on the intervening night of 01.03.2313-02.03.2013, he was on emergency duty. At about 01:00 am, a call was received from the hospital regarding the admission of PW2 at Mata Chanan Devi Hospital, Janakpuri. Accompanied by PW3, Constable Bhajan Lal, he reached the hospital, when he found PW2 under treatment. He collected the MLC.  The  next  day  at  about  08.00  AM,  he  recorded  Ex.  PW2/A FIS/FIR. PW12 further spoke regarding the various steps taken during investigation including the arresting of A1 and A2.

Now, coming to the defence evidence. DW1, the sister of A2 and the wife of A1 deposed that when they were residing in Uttam Nagar, PW2, the neighbour, used to come and meet Kavita, wife of A2. PW2 and Kavita developed intimate relations. The family members objected to the relationship, but Kavita did not mend her ways and continued to meet PW2. Due to this illicit relationship, the family shifted from Uttam Nagar to Badarpur, Delhi. But the  situation remained unchanged. A1 and  A2 objected to the relationship, due to which PW2 became angry and threatened  them.  According  to  DW1,  PW2  has  falsely  implicated A1 and A2 in the present case. DW1 also deposed that Kavita now lives with PW2.

Though the charge against A1 and A2 framed by the trial court was for the offences punishable under Sections 392 and 397  read  with  Section  34,  IPC,  the  trial  court  disbelieved  the  case of robbery of the  mobile phone and the amount of ₹5000/- from PW2. After referring to the testimony of PW2 as well as the testimony of DW1, the trial court in paragraph Nos. 20, 21 and 22 concluded thus:-

“20.  Thus  from  the  testimony  of  DW-l  Smt.  Mira,  it  is  clear that  the  complainant  was  having  illicit  relationship  with  the wife  of  accused  Prem  Singh.  Admittedly,  the  complainant  is resident of Balmiki Camp, Begumpur, Malviya Nagar, New Delhi.  He  was  working in  Katwaria  Sarai.  He  has  not  given any reason as to for what reason, he was coming to the area of Aali Village.

In the given facts and circumstances of the case, the motive for giving beatings to complainant/injured does not appear to be robbery. The motive may be to teach a lesson to complainant so that he should not meet the wife of Prem Singh. The possibility of committing robbery with complainant  by  accused  is  not  probable  in  the  given  factual matrix of the case. The probability for false implication of accused persons for the offences under section 394/397/34 IPC cannot be ruled out.

Admittedly, the complainant suffered grievous injuries in the case. He has duly identified both the accused as the persons, who are involved in the commission of offence in the case.  He  identified  accused  Prem  Singh  as  the  person,  who assaulted him with knife and also gave fist blows and belt blows to him. He also identified accused @ Satish as the person,  who  caught  hold  of  him  from  behind  and  also  given beatings to him. Therefore, in my view, prosecution has succeeded to prove the offence punishable under section 324/34  IPC  against  both  the  accused;  Accordingly,  accused Prem  Singh  and  Satish  @  Suraj  are  hereby  held  guilty  and convicted for committing the offence punishable under section 324/34 IPC”.

It is true that no charge under Section 324 IPC had been framed by the trial court. However, Section 222(2) Cr.P.C. says that when a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it. There is no reference to Section 222(2) Cr.PC in the impugned judgement. But, apparently, it is on the strength of the same, the trial court, convicted the accused persons for the offence under Section 324 IPC.

As noticed earlier the accused has been charged for the offences  punishable  under  Sections  394  and 397.  Section  394 IPC deals  with  voluntarily  causing  hurt  in  committing  robbery.  It  says that if any person, in committing or an attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for life or with rigorous  imprisonment  for  a  term  which may  extend  to  10  years, and shall also be liable to fine. Section 397 IPC deals with robbery, or dacoity, with attempt to cause death or grievous hurt. As per the Section, if, at the time of committing robbery or dacoity, the offender  uses  any  deadly  weapon,  or  causes grievous hurt to any person, or  attempts  to  cause  death  or  grievous  hurt  to  any  person, the imprisonment with which such offender shall be punished, shall not be less than 7 years.

Voluntarily  causing  hurt  or  grievous  hurt  is  one  of  the ingredient of the aforesaid offences, which is a minor offence when  compared  to  the  offences  under  Sections  394  and  397  IPC. The trial court has disbelieved the  case of robbery. On the other hand held that the appellant/A1 is guilty of the offence punishable under  Section  324  read  with  Section  34  IPC.  No  appeal  has  been preferred by the State against the acquittal of the accused for the offences  punishable  under  Sections  394  and 397 IPC.  Section  324 IPC  deals  with  voluntarily  causing  hurt  by dangerous weapons or means. It says that whoever except in the case provided for by Section 334, voluntarily causes hurt by means of any instrument for  shooting,  stabbing  or  cutting,  or any instrument which used as a weapon of offence, is likely to cause death,  or  by  means  of  fire, or any heated substance, or by means of any poison, or any corrosive substance, or by means of any explosive substance, or by means  of  any substance  which  it  is  deleterious  to  the  human  body to  inhale,  to  swallow,  or  to  receive  into  the  blood,  or  by  means  of any animal, shall be punished with the imprisonment of either description for a term which may extend to 3 years, or with fine, or with both. Therefore, the ingredients to be proved under Section 324 are that the prosecution must prove that the accused voluntarily  caused  hurt  to  a person  with  a weapon  as  described  in the Section, which if used as a weapon of offence, is likely to cause death. In Mathai v. State of Kerala (2005)3 SCC 260 it has been held that the expression "any instrument which, used as a weapon of offence, is likely to cause death" has to be gauged, taking note of  the heading of  the section. What would constitute a "dangerous weapon" would depend upon the facts of each case and no generalization can be made. In Nanda Gopalan v. State of Kerala,  (2015)  11  SCC  137,  after  referring  to  Mathai  (Supra)  as well  as  the  dictum  in  Dasan  v.  State  of  Kerala,  (2014)  12  SCC 66, it has been held that, the expression "any instrument, which used as a  weapon of offence,  is likely  to cause  death"  should be construed with reference to the nature of the instrument and not the manner of its use. What has to be established by the prosecution is that the accused voluntarily caused hurt and that such hurt was caused by means of an instrument referred to in this section. Various factors like size, sharpness etc would throw light on the question  whether  the  weapon  was  a  dangerous  or  deadly  weapon or not. That would determine whether in a case, offences under Sections 323, 324, 325 or 326 would apply.

Now the question is, whether the ingredients of the offence punishable under Section 324 IPC stands established in this case. Admittedly, the weapon that was used for assaulting PW2  has  not  been  seized  or  recovered.  However,  it  is  well  settled that recovery of the weapon used in the commission of the offence is not sine qua non for concluding regarding the guilt of the accused. If there is direct evidence, which is credible and trustworthy, even in the absence of recovery of the weapon of offence, the accused can be convicted [See Rakesh vs. State of U.P.,  2021  KHC  6299:  (2021)  7  SCC  188  and  State  vs.  Laly  @ Manikandan 2022 LiveLaw (SC) 851]. Therefore, I will examine whether the remaining evidence on record is sufficient to attract the ingredients of the offence under Section 324 IPC.

Now coming to the medical evidence.The trial court held that the prosecution failed to prove Ext. PW10/A MLC of PW2. Paragraph 17 of the impugned judgement which gives the reasons as to why the trial court declined to rely on the MLC, reads thus:-

“17. The MLC of injured Satish Kumar has not been proved in accordance with law. The doctor, who prepared the MLC, did not appear in the court to prove the MLC. The contents of MLC  of  injured  Ex.  PW-10/A  shows  that  he  got  admitted  in the hospital with alleged history of assault at Sarita Vihar. He did not tell the doctor that he sustained injuries in the incident of robbery.  The opinion on the MLC was given by some other doctor, whose name is not mentioned in the MLC. The doctor, who prepared the MLC has not given the measurement of the injury suffered by injured. Thus, the contents of MLC Ex. PW-10/A pertaining to injured is highly; doubtful”.

The learned prosecutor submitted that though the doctor  who  examined  PW2  was  not  examined,  the  prosecution  by resort to Section 32(2) of the Evidence Act has succeeded in proving Ext. PW10/A MLC by examining PW10 and, therefore, the trial court was wrong in discarding the MLC.

Section 32(2) of the Evidence Act reads thus:-

“32. Cases in which statement of relevant fact by person who is  dead  or  cannot  be  found,  etc.,  is  relevant.––Statements, written  or  verbal, of relevant  facts  made by  a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable,  are  themselves  relevant  facts  in  the  following cases:-

(1) xxxxxxxxxxxxxxxxxxxx

(2) or is made in course of business.––When the statement was made by such person in the ordinary course of business, and in  particular  when  it  consists  of any  entry or memorandum made by him in books kept in the ordinary course  of  business,  or  in  the  discharge  of  professional  duty; or of an acknowledgement written or signed by him of the receipt  of  money,  goods,  securities  or  property  of  any  kind; or of a document used in commerce written or signed by him; or of the date of a letter or other document usually dated, written or signed by him.

(3) to (8) not relevant, therefore, not referred to”.

28.1. In  Prithi  Chand  v.  State  of  Himachal  Pradesh, AIR 1989 SC 702, it has been held that Section 32 of the Evidence Act, 1872 (the Evidence Act) provides that when a statement written or verbal, is made by a person in the discharge of professional duty whose attendance cannot be procured without an amount of delay, the same is relevant and admissible in evidence.

28.2. In Rambalak Singh v. State of Bihar AIR 1964 Patna 62, it has been held that if the doctor who had performed the autopsy  was  not  available  at  the  time  of  trial  or  he  is  abroad,  the post-mortem certificate prepared by him would be admissible in evidence  if  the  handwriting  and  signature  of  the  autopsy  surgeon on the post-mortem certificate are proved.

28.3. I  also refer to the  dictum  in Kochu and Ors.  v. State of Kerala, 1978 KHC 321 : 1978 SCC OnLine Ker 79. In the said case, an argument was advanced on behalf  of  the accused that the burden cast on the prosecution cannot be said to have been discharged  by  the mere  examination  of  the  medical  officer  who  is familiar with the handwriting and signature of the doctor who issued the post  mortem certificate; but the prosecution must  prove the contents of the document and also elicit from the witness examined, his independent opinion as an expert on the conclusions reached by the doctor who held the autopsy. It was held that it was not always necessary and the law also does not insist that in all such cases the witness should give his independent opinion on the findings  in  the  post  mortem certificate  or  speak  to  each  and  every statement made  therein.  Of  course,  if  an  expert  witness,  who  has been examined to prove the post mortem certificate issued by a doctor who was dead or was not available for examination in court under the circumstances stated in S.32 (1) of the Evidence Act, also gives independent evidence as an expert on the conclusions arrived at in the post mortem certificate, it would constitute an additional  piece  of  evidence  of  an  expert.  Under  S.32,  statements, written  or  verbal,  of  relevant  facts  made  by a person  who  is  dead, or  who  cannot  be  found,  or  who  has  become  incapable  of  giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the court unreasonable, are themselves relevant facts in  cases falling under sub-s.1 to 8. A post  mortem certificate is  not  substantive  evidence.  It  is  only  the  evidence  given  in  court by the doctor who held the autopsy that constitutes substantive evidence.  A post  mortem certificate,  being  a document  containing the  previous  statement  of  a  doctor  who  examined  the dead  body, can be used only to corroborate his statement under S.157 or to contradict his statement under S.145 or to refresh his memory under  S.159  of  the  Evidence  Act.  But, S.32 (2) is an exception to this. If  the  doctor  who  held  the  autopsy is  dead  or  is  not  available for  examination  under the  circumstances  mentioned  in S.32  of  the Evidence Act, the certificate issued by him is relevant and admissible under S.32(2) of the Evidence Act. The weight to be attached  to  such  a  report  or  its  probative  value  depends  upon  the facts and circumstances of each case. The court can come to its independent conclusion on the cause of death, if there is independent evidence on record in support of it. Then the question is whether the statements made in the post mortem certificate, containing what was observed by the doctor during autopsy and the conclusion arrived at by him therein have been properly proved in accordance with law. S.67 of the Evidence Act speaks of the mode of proof of a document. Under S.67 if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document  as  is  alleged  to  be  in  that  person's  handwriting  must  be proved  to  be  in  his  handwriting.  When  in  cases  the  prosecution  is not  able  to  procure  the  attendance  of  the  doctor  who  held  autopsy without unreasonable delay or expense, the statement coming under  S.32(2)  of  the  Evidence  Act  has  to  be  proved  by  one  of  the various modes prescribed in S.47 of the same Act.

Coming to the case on hand, as noticed earlier, the prosecution in order to prove the MLC, has examined PW10, who only deposed that she is familiar with the handwriting of the doctor who had examined PW2 and issued the MLC. PW10 does not say that  the  doctor  was  not  available  due  to  any  of  the  circumstances mentioned in Section 32 of Indian Evidence Act. It is only when it is shown that the witness is not available due to any of the reasons stated in Section 32, Sub-section (2) of Section 32 comes into play. Had any of the grounds as contemplated under Section 32 for non- examination of the  doctor  who examined PW2 had been brought on record, the prosecution could have resorted to Section 32 (2) read with Sections 47 and 67 of the Evidence Act to prove the MLC.  That has not been done. Hence, I agree with the  conclusion of the trial court that Ext. PW10/MLC has not been proved by the prosecution, though for different reasons.

Now, what remains is the testimony of PW2, which shows  that  A1  and  A2  had  voluntarily  caused  injury/hurt  to  him. Hurt,  defined  under  Section  319  IPC  says,  whoever  causes  bodily pain, disease, or infirmity to any person is said to cause hurt. In the absence  of  medical  evidence  showing  the  nature  of  injury  caused coupled  with  the  absence  of  the  recovery  of  the  weapon,  it  is  not possible  to  conclude  whether  the  weapon  was  a  dangerous  one  as contemplated under Section 324 IPC.

It  was  pointed  out  by  the  learned  defence  counsel  that the  trial  court  in  the  impugned  judgment  refers  to  the  conduct  of PW2 in going to a hospital which is far away from  the scene of occurrence. The trial court noticed that there were several hospitals on the way but instead of going to any of the said hospitals, he went to a hospital quite far away from the scene of occurrence for which no explanation has been given. Likewise, the trial court has also  pointed  out  the  defect  of  non-examination  of  the  auto  driver who is alleged to have taken PW2 to the hospital for treatment. The trial court disbelieved the motive or the case of robbery by concluding that the possibility of false implication could not be ruled  out.  Despite  such  finding,  the  trial  court  went  on  to  convict the accused, which according to learned counsel is an apparent error/infirmity, that needs to be interfered with by this Court.

Despite the aforesaid aspects, the testimony of PW2 does show that A1 and A2 had voluntarily caused hurt to him. The said  aspect  has  not  been  discredited  in  any  way.  Whatever  be  the motive/reason for the assault, the testimony of PW2 does show that A1 and A2 voluntarily caused hurt to him. The said testimony also satisfies the ingredients of 323 IPC and not Section 324 IPC.

Now coming to the sentence that needs to be imposed on the appellant/A1. The nominal roll on record shows that the appellant/A1 has criminal antecedents. That being the position, the question  of  invoking  the  provisions  of  the  Probation  of  Offenders Act,  1958  or  avoiding  substantive  sentence  of  imprisonment  does not arise. Hence, the appellant/A1 is sentenced to rigorous imprisonment for a period of two months with fine of ₹1,000/- and in default of payment of fine to simple imprisonment for 15 days.

In the result, the appeal is partly allowed, the impugned judgement  is  modified  to  the  following  extent  the  appellant/A1  is found guilty of the offence punishable under Section 323 IPC. Hence, the appellant/A1 is convicted to rigorous imprisonment for a period of two months with fine of ₹1,000/- and in default of payment of fine to simple imprisonment for 15 days.