1984 Supreme(MP) 702

B. C. Varma and P. C. Pathak, JJ.
Kanhaiyalal v. State of M. P.
Cr. A. No. 1030 of 1981 (J); Decided on 31-10-1984.

Headnote:(1) Evidence Act, 1872 -- S. 45 -- Xd`ray plates missing -- fracture can be proved by statement of doctor.

        (2) Penal Code, 1860 -- Ss. 307 and 326 -- nature of injury not fatal -- offence falls under section 326.

        (3) Penal Code, 1860 -- S. 326 -- sentence under -- prosecution pending for 7 years -- accused already suffered 15 days jail -- imprisonment sufficient with fine of Rs. 1000/-.

        Appellant Kanhaiyalal in this appeal and respondents Hanumandas, Ramprasad, Kallu, Sunderlal, Ramgopal, Ramkishore and Mst. Bundkunwar in the other appeal (Cr. Appeal No. 1460 of 81) were prosecuted under sections 307, 307/149 and 148, Indian Penal code on the allegation that on 2-11-77 at about 4.45 P. M. in village Seoni, Police Station Marwahi District Bilaspur, P. W. 1 Sukh Sampatdhar received information from one Har Prasad that all the accused persons were forcibly taking away his urda crop staked in Khaliyan. He, in company of 3 or 4 persons proceeded to the spot and found a cart-load of crop being taken away by the accused. As soon as appellant Kanhaiyalal saw the complainant party, assault was opened on them. First, Gopal alias Ramgopal dealt a lathi blow on P. W. 1 Sukh Sampatdhar, where after appellant Kanhaiyalal gave a farsa blow on his head. It has also been the allegation that the other accused persons also wielded lathis and accused Mst. Bundkunwar used a gupti. Sukh Sampatdhar was sent to the hospital where he was examined by Dr. J.S. Shende (P.W. 5) who found a head injury 4"x ½"x ¼". Bone was visible. According to Doctor, the injury could have proved fatal. Xd`ray was taken by the Radiologist Dr. G.K. Rahalkar (P. W. 8) who found linear fracture of the skull. After observing other formalities, the accused were prosecuted on the aforesaid charges. P. W. 1 Sukh Sampatdhar, P. W. 2 Bash Gopal and P. W. 3 Badri Prasad were examined as eye-witnesses to substantiate those charges and their testimony was sought to be corroborated by the medical evidence of the aforesaid two doctors. The accused denied to have committed any offence and submitted that they were falsely implicated due to political rivalry. The lower Court held that the prosecution could not establish formation of any unlawful assembly. It was, however, held that appellant Kanhaiyalal and another accused Ramgopal did assault P. W. 1 Sukh Sampatdhar. Kanhaiyalal has been convicted under section 307, Indian Penal Code and sentenced to four years rigorous imprisonment. Accused Ramgopal was converted under section 313. IPC, and was sentenced to pay a fine of Rs. 100/-. He has not appealed against his conviction. Appellant Kanhaiyalal questioned his conviction under section 307 IPC, and the State has filed appeal praying that all the accused including appellant Kanhalyalal should be convicted under section 148 and also under section 307 read with section 149 I.P.C.

        Held : Evidence of Dr. J. S Shende (P. W. 5) proves the head injury on Sukh Sampatdhar (P. W. 1). It also discloses that the injury was caused by a sharp edged weapon. Dr. G. K. Rahalkar (P. W. 8) deposed that on taking skiagram of the skull, a fracture was found on the head of Sukh Sampathdar. The learned counsel for the appellant argued that in the absence of Xd`ray plates, it should not be held that the fracture has been proved. The learned counsel does not seem to be right here. P. W 8 Dr. G. K. Rahalkar has deposed that the Xd`ray plates were missing and could not be traced out. He has, therefore, deposed about the fracture after referring to his report, Ex. P-5. He has not been cross-examined at all. It has, therefore, to be held that Doctors evidence is sufficient to prove the fracture of skull of Sukh Sampatdhar (P. W. 1). It has also been established that the injury was caused by sharp cutting weapon. Although, Dr. Shende (P. W. 5) has deposed that on being referred to again on 14-11-1977, he opined that the head injury could have proved fatal. If it was not properly treated, yet in cross-examination be had to say that originally he could not say if tile hurt was even grievous. There is nothing on record to show the material on the basis of which he opined that the injury could have proved fatal. Even from the nature of the injury, it could not be said that either for want of treatment or otherwise, it could have proved fatal. Appellant Kanhaiyalal can at the best be convicted under section 326, Indian Penal Code.

        The learned counsel also argued that the accused hit the deceased because the complainants party illegally obstructed them from carrying away the urda crop. This contention cannot be accepted in view of the evidence on record. None of the prosecution witnesses was cross-examined in this direction and no question was put to rather of them, on in this direction. In these circumstances, the accused cannot be given any such right as they now claim. The contention is rejected.

        The record also does not show any material to conclude that the accused persons formed any unlawful assembly or that they were various armed as alleged. For this reason, the acquittal of the accused under section 143 and 307 read with section 149, I. P. C. has to be maintained.

        The result of the aforesaid discussion is that Criminal Appeal No. 1460 of 1981 filed by the State is dismissed and the acquittal of the respondents as aforesaid, is maintained.

        Criminal Appeal No. 1030/81 filed by Kanhaiyalal succeeds and is partly allowed. His conviction under section 307, I. P. C. and the consequent sentence of four years rigorous imprisonment, are set aside. Instead, he is convicted under section 326, I. P. C. As regards sentence, we find that the prosecution against him is pending since the year 1977 at different stages. The appellant had been in jail for a period of 15 days. Looking to these circumstances and taking into consideration the age of the appellant, we felt that it will not be just to send him back to the jail custody again. In our opinion, imposition of some fine will meet the ends of justice. We accordingly sentence appellant Kanhaiyalal to suffer imprisonment for the period already undergone by him and to pay a fine of Rs. 1000/-. Out of the fine, an amount of Rs. 500/- shall be paid to the complainant Sukh Sampatdhar (P. W. 1). In default of payment of fine, the appellant shall further undergo rigorous imprisonment for three months. Appeal partly allowed.