The prosecution must establish the grievous nature of the injury to sustain a conviction under Section 307 of the Indian Penal Code.

1. - This appeal is directed against the judgment dated 27.2.1981 passed by the Sessions Judge, Banswara convicting the second accused appellant Moga of offence under Section 307 of the Indian Penal Code and sentencing him to four year's rigorous imprisonment and to pay a fine of Rs. 50/-, in default of payment to further undergo one month's rigorous imprisonment. The first appellant Kanji has been convicted for offence under Section 307/34 of the Indian Penal Code and sentenced to three year's rigorous imprisonment and to pay a fine of Rs. 50/-, in default of payment to further undergo one month's rigorous imprisonment.

2. It is given out by the learned counsel that the appellant No. 1 Kanji has died. The order of abetment of the appeal has been made by the order of this Court on 24.2.1997 so far as the first appellant is concerned.

3. Twelve accused persons were put up for trial before the Sessions Judge, Banswara for offences arising out of an incident alleged to have taken place on 11.7.1979 in which an attack was made on PW. 3 Lal Singh to murder him. The learned Judge acquitted all the accused persons except the appellants Kanji and Moga, PW. 3 Lal Singh the injured eye witness has stated that Moga gave a kulhari blow on his head. P.W. 7 Dr. B.S. Sirohya has stated that he examined Lal Singh on 11.7.1979 and found the following injuries on his person-

"1. Incised wound semilunar in shape 6" x 2"x 11/2" on scalp in centre.

2. Incised wound 2"x 1/2"x 1/2" in between index finger middle finger right hand.

3. Incised wound 2"x 1/2"x 1/2" lower occipital region scalp.

4. Swelling whose circumference of wrist Rt. wrist.

5. Abrasion circular on biceps muscle Rt. arm.

6. Abrasion 2"x 1/2" on 9th Rib Lt. half posteriorly."

4. He has proved the injury report Ex.P/5. The injury report indicates that the injury No. 1 is dangerous caused by sharp edged weapon. The injuries No. 2 and 3 are simple caused by a sharp edged weapon. The injuries No. 4 to 6 are simple caused by blunt object. It is not in dispute that the injury no. 1 was not referred for radiological examination. Dr. Sirohya has not stated as to how the injury No. 1 was dangerous.

5. In view of this the prosecution has failed to establish that the injury no. 1 was grievous in nature. Thus that has to be construed as a simple injury.

6. In view of the aforesaid, this appeal is partly allowed and the conviction of the appellant No. 2 Moga under Section 307 I.P.C. is set-aside and is converted in Section 324 I.PC. It is pointed out that the petitioner has already undergone a substantial sentence. The sentence awarded is reduced to the period already undergone.Appeal Partly Allowed.

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