ORDER

Heard Sri S.Balakrishnan, learned counsel for the revision petitioners and Sri Channappa Erappa, learned High Court Government Pleader.

2. Revision petition is by the accused person who suffered an order of conviction in C.C No.315/2004 dated 22.03.2006 on the file of the Civil Judge (Jr.Dn.) and JMFC, Harihar, confirmed in Criminal Appeal Nos.55/2014 and 05/2014 dated 13.04.2016 on the file of the I Addl. District and Sessions Judge, Davanagere.

3. The learned Trial Magistrate passed an order of conviction for the offence punishable under Sections 143, 147, 448, 504, 323, 324, 326 r/w 149 of the Indian Penal Code in C.C.No.

315/2004 dated 22.03.2006 and sentenced as under:

“Heard regarding sentence.

The learned counsel for the accused has submitted that the accused persons are cousin brothers of the complainant and the 6th accused is a KSRTC bus conductor and so lenient view is to be taken. Taking into consideration the relationship between the complainant and the accused persons and also of the fact that the 6th accused is KSRTC bus conductor, if maximum sentence is imposed the life of the 6th accused will be spoiled. The 4th accused is aged about 60 years. So, the accused persons are not punished for all the offences and instead of releasing the accused persons under P.O. Act the accused persons are sentenced to pay a fine of Rs.2000-00 each, in default of payment of fine the accused persons are sentenced to undergo simple imprisonment for 3 months. Out of the fine amount so collected 50% of the amount is to be paid to the complainant by way of compensation. M.O.1 is ordered to be confiscated to the state and M.Os.2 to 4 are ordered to be destroyed after the appeal period. The bail bonds of the accused persons stand cancelled.”

4. After hearing the parties in detail, this Court noticed that the wound certificate marked at Exs.P4 and P5 would no doubt depict the grievous injuries. Admittedly, no supporting material is placed on record in the form of expert opinion, especially, to establish the fracture injury sustained by Junjappa, as is shown in Ex.P.4.

5. It is settled principles of law and requires no emphasis that mere production of the wound certificate would not be sufficient enough to establish the grievous injuries, especially a fracture injury. Supporting material like x-ray film or radiological report are sine qua non for proving the fracture injury.

6. In the case on hand, the Doctor who examined the injured persons and issued Exs. P4 and P5 has no doubt been examined by the prosecution. But original x-ray film or radiological report is not furnished by the prosecution and marked as exhibit.

7. Under such circumstances, whether Court can convict an accused for the offence punishable under Section 326 of the Indian Penal Code is no longer res integra.

8. In the case of State v. Sheenappa Gowda reported in (2011) 4 KCCR 2759, a Division Bench of this court has held as under.

“11. Therefore, the question for determination is limited to find out whether the said injury No. 2 is proved to be a grievous injury sustained by PW. 4. It is well settled that in criminal cases, the burden of proving the guilt of the accused is always on the prosecution and that burden would not shift unless there is a presumption or defence as enumerated in the Penal Code, 1860 is taken by the accused. In this case, the defence taken by the accused is one of denial. It is clear from the evidence of PW. 1 that he has given description of injury on physical examination of PW. 4 and has come to the conclusion that there was fracture of the middle phalanx. It is well settled that when the prosecution alleges that grievous injury has been caused, it is necessary for the prosecution to prove the same beyond reasonable doubt. The evidence of PW.1. would only show that there was injury as described in the wound certificate - Ex.P2. When PW. 1 suspected such fracture, he ought to have referred the injured - PW. 4 for taking X-ray to confirm his finding tha