IMPORTANT POINT
Acquittal of accused for an offence under sections 323/325 Indian Penal Code for failure of prosecution to examine the doctors is not justified if in the absence of medical evidence offence under section 325 Indian Penal Code is clearly made out by prosecution.

JUDGMENT

C. P. Sen, J. - The State has preferred this appeal against acquittal of the respondent Pillu for the offence under section 325 Indian Penal Code by the trial Magistrate.

2. The prosecution case is that on 5-5-1976 the complainant Jagdish Chandra (P.W. 1) was taking sugar canes in his bullock-cart, followed by another bullock-cart of Kadwali (P.W. 3) similarly loaded and Mangilal (P. W. 4) was an occupant. When they were in Bhawani Mata Road at about 2 a.m. the respondent took out some sugar canes from the bullock-cart of the complainant. He protested, thereupon he was beaten with the stick of sugar cane and he was dragged from the cart and thrown on the ground. As a result he received injuries and there was fracture of left femur bone. A report was sent from the hospital where he was being treated informing about the incident. The complainant in all received 8 injuries and on X-ray his left femur bone was found to be fractured. After completing the investigation, the respondent was charge-sheeted. His defence was of denial. It appears that inspite of several adjournments the prosecution failed to examine the doctor who treated the complainant and also the doctor who had taken the X-ray. So the respondent has been acquitted.

3. After hearing the parties and perusing the record. I am of the opinion that the acquittal is not justified from the findings already reached by the trial Magistrate. It has been found from the evidence of the three eye-witnesses that the respondent had beaten the complainant. This is corroborated by the F.I.R. but since the injuries have not been proved by examining the doctor, no case is proved under section 325 Indian Penal Code. But in the absence of medical evidence offence under section 323 Indian Penal Code is clearly made out. It may be mentioned that no question has been asked to the complainant Jagdish Chandra (P.W. 1) about the beating while the other two witnesses Kadwaji (P.W. 3) and Mangilal (P.W. 4) have not at all been cross-examined. Therefore, the case against the respondent stands proved beyond doubt for the offence under section 323 Indian Penal Code. There is no reason for disbelieving the eye witnesses regarding the injuries received by the complainant. However, looking to the fact that the incident is of the year 1976 and the respondent was aged about 17 years on the date of the incident he has to be given benefit under the Probation of Offenders Act.

4. Accordingly the appeal is allowed. The acquittal of the respondent is set aside and instead he is convicted under section 323 Indian Penal Code and he is released under section 6 of the Probation of Offenders Act on his executing a bond for Rs. 2000/- with one surety in the like amount for his good behavior and for keeping peace for a period of one year subject to the condition that whenever he is called upon he should appear to undergo the sentence. He shall also pay a compensation of Rs. 250/- to the complainant under section 5 of the Act. On his failure to comply with this order he would suffer R.I. for three months.

Appeal allowed-Order accordingly.