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Judgment
Gopal Prasad, J.—Heard learned Counsel for the Appellants and learned Counsel for the State.
The Appellant No. 1 has been convicted u/s 326 of the Indian Penal Code and 27 of the Arms Act and sentenced to undergo rigorous imprisonment for four years and one year respectively and Appellant No. 2 to 4 have been ordered to be released on probation bond of Rs. 2,000/- with one surety each for a period of one year each with a condition that in the meantime they will keep peace and be of good behaviour and appear and received the sentence when called upon by the court during such period.
The prosecution case as alleged that occurrence took place with regard to dispute in irrigation of the land from the water in the ditch and on protest Appellant No. 1 Tarikh Gond fired from katta causing injury on thigh and hand of Munshi Bind and doctor has found correspondence injury on the thigh and hand of Ramlal Bind.
However, on the Fardbeyan, F.I.R. was lodged. After investigation charge sheet submitted. Cognizance taken and case committed to the Court of Sessions. During trial, ten witnesses were examined and they supported the prosecution case and accordingly conviction and sentenced recorded as stated above.
Learned Counsel for the Appellant however challenged the order of conviction u/s 326 I.P.C. is not sustainable in view of the fact that X-ray report on the basis of which doctor has only formally proved and the doctor or the person before whom X-ray has been done has not been examined nor X-ray pLate has been proved as evidence and hence contends that conviction u/s 326 I.P.C. is not maintainable and if sentence u/s 326 I.P.C. converted into Section 324 I.P.C. then it is reliable for benefit u/s 360 Code of Criminal Procedure or a lenient view may be taken as occurrence is of the year 1989 and Appellant has remained in jail for more than six months from trial and after conviction.
Having regard to the fact, the evidence of the doctor that he found following injuries on Munshi Bind;
(i) punctured wound over mid of right ring finger with irregular margin. Red in colour 1.1/2" x 1/2" bone deep.
(ii) punctured wound over upper part of right thigh 1/2" in diameter wotu exit posterior part of thigh 1/4" in diameter.
He has stated in his evidence that he advised for X-ray and hold that injury No. II is simple. In his further evidence he has stated that he received X-ray report later and it was done under Dr. Birendra Kumar Singh, which is in his writing and bear his signature and X-ray report has been marked as Ext. 1 and X-ray report of Munshi Bind shown fracture on the right ring finger.However the doctor who gave the x-ray report has not been examined to prove that the x-ray of the injured was done in his presence and x-ray pLate is the x-ray of said injured person and he hold the opinion about fracture. However, person before whom X-ray was done has not been examined and the report of doctor on x-ray was not examined. It is pertinent to mention Section 60 of the Evidence Act provides that opinion of the doctor is required to be proved by direct evidence by production of the doctor who gave his report and not by formally proving the signature of the doctor as the report of the doctor is not a substantive evidence. Here when the doctor Birendra Kumar Singh who gave X-ray report has not been examined and his report has been based for holding that injury is grievous which is not accepted as there is no evidence before whom the x-ray was done. Hence part of this evidence holding that injury was grievous is not sustainable. Hence order of conviction and sentence u/s 326 I.P.C. is not sustainable. However, conviction u/s 326 I.P.C. is substituted by Section 324 I.P.C.
Hence taking into consideration the entire facts that occurrence is of the year 1989 and Appellant No. 1 remained in jail from 13.11.1989 to 25.04.1990 during trial and further remain in jail after conviction from 11.09.1998 to 17.11.1998.
Hence end of justice shall meet by sentencing the Appellant No. 1 for the period already undergone. So far,Appellant Nos. 2 to 4 are concerned, they have been convicted u/s 323 I.P.C. and hence given benefit u/s 3 of Probation of Offender Act and they are ordered to be released on due admonition. Hence the appeal is allowed in part.