The absence of visible external injuries does not preclude conviction for assault under Section 323 RPC.

JUDGMENT :

1. The instant appeal is directed against the judgment of conviction dated 27.03.2008 passed by the court of learned Principal Sessions Judge, Udhampur (hereinafter to be referred as ‘the trial court’) by virtue of which the appellant has been convicted for the commission of offences under Sections 451 and 323 RPC and sentenced to undergo rigorous imprisonment for a period of two years and to pay fine of Rs. 2,000/- for commission of offence under Section 451 RPC and imprisonment for a period of one year for commission of offence under Section 323 RPC. In default of payment of fine, the appellant has been ordered to undergo further one month’s imprisonment.

2. The appellant has assailed the judgment dated 27.03.2008 on the ground that the learned trial court has not appreciated the evidence in its right perspective and that the Investigation Officer who had conducted the investigation was not examined as a witness to explain the contradictions in the prosecution evidence and site plan of the place of occurrence was also not proved.

3. Mr. A.S. Khera, learned counsel for the appellant submits that the falsity of the prosecution case is established by the judgment itself as the appellant was acquitted of the charge for commission of offence under Section 304 RPC and was convicted only for commission of offences under Sections 451 and 323 RPC. He has further argued that the learned trial court has not appreciated the evidence in its right perspective, as such, has erroneously convicted the appellant. He has further argued that the appellant is a poor man and sole bread earner of his family comprising of his mother, wife and son, as such, lenient view may be taken.

4. Per Contra, Mr. Dewakar Sharma, learned counsel for the respondents has vehemently argued that the prosecution had proved its case beyond reasonable doubt and that is why the learned trial court has convicted the appellant in the manner mentioned above. He has further argued that the material witnesses were examined by the prosecution and one of the Investigating Officers, who had conducted the investigation initially, was examined by the prosecution, as such, non examination of the second Investigating Officer would not make any difference so far as the case of the appellant is concerned.

5. Heard learned counsel for the parties and perused the record.

6. The brief facts necessary for the disposal of the present appeal are that on 11.08.2003 at about 13.30 hours, IHC-Kewal Krishan arrived at the Police Station after recording the statement of Prayanka Gupta, who was admitted in Ramnagar Hospital. In her statement she had deposed that on 06.08.2003 at about 10.00 P.M., she had slept along with other family members in the room and her father was sleeping all alone in the courtyard on the cot. The appellant came there and asked her father as to why the electricity was off. Her father told him that the light might be off from the electric pole and asked him to contact the lineman. The appellant attacked her father with fists and kicks. After hearing the noise, she along with her mother came out in the courtyard and tried to save her father. The appellant also assaulted her with kicks and fists. Some people also came on spot and intervened and saved her and her father from the clutches of the appellant. Because of the assault by the appellant, there was pain in her chest, neck and legs. Her father had made a report on 07.08.2003 with the Panchayat and she continued to obtain treatment from Doctor of Dispensary at Sunetar.

7. On the basis of statement of Prayanka Gupta (deceased), FIR bearing No. 72/2003 was registered for commission of offences under Sections 451 and 323 RPC. The injured was referred to District Hospital, Udhampur for better treatment, from where she was further referred to GMC, Jammu on 12.08.2003, where she came to demise after few hours on account of internal injuries suffered by her. Thereafter, she was brought back to Ramnagar Hospital, w