The main legal point established is the requirement for the prosecution to produce sufficient evidence to prove the severity of injuries in assault cases.

1. - The appellant was tried by the learned Addl. Sessions Judge, No. 1, Udaipur in Sessions Case No. 39/87 and was convicted under sections 307, 325 and 447, IPC and thereafter sentenced to undergo R.I. for a period of three years and to pay a fine of Rs. 500/- under section 307 IPC; to undergo R.I. for a period of two years and to pay a fine of Rs. 200/- under section 325 IPC and to undergo RI for a period of three months, under section 447 IPC. The prosecution story in short was as under:-

2. On 12-3-1987 at about 2 P.M. while Jaloo was working in his field, the appellant came with a lathi and started assaulted him with the result that Jaloo received injuries on his head, shoulder, left arm and left knee. Jaloo fell down and was removed to the hospital where his wounds were stitched. On taking x-ray examination, it was found that the injuries on the head, fore arm and knee had caused fractures. After completing the investigation, the police filed the challan against the appellant in the court of the learned Judicial Magistrate, who committed the appellant to the court of Sessions, where he was tried, convicted and sentenced as noted above. Feeling aggrieved the appellant who is confined in jail has filed this Appeal through Superintendent of Jail, Udaipur. At the asking of the Court, Shri O.P. Singhania agreed to act as Amicus Curiae and as such has was so appointed by this Court.

3. I have heard Shri O. P. Singhania, learned counsel for the appellant, Shri S.K. Mathur, learned P.P. for the State and have also perused the record of the case.

4. From the record I find that Jaloo as well as eye-witnesses have supported the prosecution case that at the time of occurrence the appellant had entered the field of Jaloo with a view to assault him and had actually assaulted him with lathi with the result that Jaloo received injuries on his person. To be fair to Shri Singhania, it may be recorded that he has not challenged the findings of the learned trial court in this respect.

5. The only contention of Shri Singhania is that the prosecution had not produced either the Radiologist who prepared his x-ray report Ex. P. 6 nor have the X-ray filma on the basis of which the report had been prepared, have been produced in court. The contention of Shri Singhania is that in this view of the matter it cannot be said that the prosecution had proved that the grievous and dangerous injuries had been caused on the persons of the injured after the occurrence.

6. This fact is not disputed that neither the Radiologist has been produced during trial nor is any reason coming forward for non-production of X-ray films, on the basis of which the Radiologist prepared the report Ex. P. 6 which has been proved in the statement of Dr. G.L. Dadh, who had examined the injured when he was first brought to the hospital. The appellant thus did not have the opportunity either to cross-examine the Radiologist who prepared the report or to see the x-ray films and to cross-examine Dr. G.L. Dadh who has proved the report of the Radiologist. In absence of this evidence, it cannot be said that the prosecution has succeeded in proving that the injuries on the person of Jaloo were grievous or dangerous. Consequently the conviction of the appellant under section 307 or under section 325, IPC cannot be upheld and it can only be said that the prosecution had succeeded in proving the case under sections 323 and 447, IPC.

7. Consequently, while maintaining the conviction and sentence of the appellant under section 447, IPC, set aside the judgment of the learned trial court in regard to the conviction of the appellant under sections 307 and 325, IPC and instead convict him under section 323, IPC, for having caused injuries on the person of Jaloo.

8. The sentences of imprisonment under section 447, IPC has to run concurrently with the Sentence under section 323, IPC. The appellant has been in jail since 18-3-1987 and in my view ends of justice would he met if the Sentence of