MEHTA, J.—The respondent Mathura Lal has been convicted under sec.323 I.P.C. and sentenced to pay a fine of Rs.125 by the Munsif Magistrate Chhoti Sadari. The State of Rajasthan has filed this appeal against that judgment. The brief facts of this case are that on February 19, 1968, at 8 P.M., Narain P.W. 1 was sitting in the house of Gokul. The accused Mathura Lal came there. He was armed with an axe. He took Gokul with him under the pretext that he would like to discuss something with him. Narayan and Mangilal P.W. 3, followed Gokul was asked to go up to the village temple and when he was climbing the steps, the accused Mathura Lal gave an axe blow on the back side of his head. The victim fell down. Mangilal and Narayan rushed to the place where Gokul was lying. They lifted him up. They saw on his head, an injury, which was bleeding. Gokul was taken to the Government dispensary, Chhoti Sadari, to which he was admitted. Later on Narayan went to the police station, Chhoti Sadari and submitted first information report. The Police registered a case under sec. 326, I.P.C., and after investigation put up a challan in the Court of learned Munsif Magistrate, Chhoti Sadari. Before the trial Court the accused pleaded not guilty. In support of its case the prosecution examined 9 witnesses. In his statement, recorded u/s. 342, Cr.P.C. the accused denied the commission of the crime. He further said that he was sitting in the temple and he told Gokul that if, according to him, he owed nothing to him, he should open the door of the temple. While going to the temple Gokul slipped on the steps and fell thereon as a result of which he sustained some injuries. He produced 3 witnesses in his defence. Eventually the trial Court convicted and sentenced the accused, as stated above.

2. Aggrieved by the above judgment, the State has taken this appeal. The contention of learned counsel for the appellant is that the Court below went wrong in convicting the accused for causing simple hurts only. The medical evidence produced in the case shows that the injury No. 1 was grievous in nature and was caused by a sharp edged weapon. The accused, therefore, should have been convicted under sec. 326, I.P.C. or in the alternative under sec. 324, I.P.C. and not under sec. 323, I.P.C, simpliciter Learned counsel for the respondent submitted that there is no medical evidence in this case. Medical certificate Ex. P. 6 is alleged to have been given by Doctor Naveen Chand Upadhyaya Incharge Primary Health Centre, Chhoti Sadari. The Doctor died in the month of November, 1968. He, therefore, could not be examined before the trial Court and in absence of such examination the certificate could not be treated as a substantive piece of evidence.

3. A perusal of Ex. P. 6 shows that Gokul received the following injuries—

(1) Incised wound 1-1/2" x 1/2" x 1/2" on the right side of the scalp parietal region. It was grievous in nature and was caused by a sharp edged weapon.

(2) Bruise 3" long horizontal on right scapula. It was simple in nature and was caused by a blunt object.

Because of the death of Dr. Naveen Chand Upadhyaya the prosecution examined Compounder Motilal P. W. 6, who had served under Doctor Naveen Chand in the Chhoti Sadari dispensary. He testifies that the Doctor Naveen Chand died in November, 1958. The medical certificate Ex. P. 6 is in the hand writing of the deceased. It also bears his signatures. Learned Munsif Magistrate, Chhoti Sadari, dealt with this aspect of the matter in the penultimate para of his judgment. His reasons are quoted below—

"Since the Doctor is dead, he could not be examined or cross-examined; it is, therefore, not proper to hold that injury No. 1 was grievous and was caused by a sharp edged weapon. Both the injuries are simple and were caused by blunt object."

The passage avers that the Munsif-Magistrate had no clear conception of law. It is, therefore, necessary to clarify the true legal position. The injury report Ex. P. 6, given by Dr. Nave