THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT IN CRL.A.NO.230/2015 DATED 10.02.2017 DISMISSING THE APPEAL ON THE FILE OF THE II ADDL. SESSIONS JUDGE, MYSURU AND ETC.

THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

ORAL ORDER

This revision petition is filed against the conviction order passed in C.C.No.71/2010 for the offences punishable under Sections 341, 324, 326, 504 and 506 of IPC and also against the judgment of the appellate court in Crl.A.No.230/2015 wherein the appellate Court modified the judgment of conviction to 3 months for the offence punishable under Section 326 of IPC and convict No.2 is further sentenced to pay Rs.1,00,000/- for the offence punishable under Section 326 of IPC and directed to pay the compensation to the victim on deposit of the said amount.

2. Heard the learned counsel appearing for the respective parties.

3. The present revision petition is filed by accused No.2 i.e., convict No.2. The factual matrix of the case against this revision petitioner is that he inflicted the injury on the victim with the iron rod and as a result, he had sustained the injury on the forehead. The trial court having considered the evidence available on record, particularly evidence of PW1 to PW9 and Ex.P1 to P12, and also considering the MO1 to MO4, comes to the conclusion that the prosecution was able to prove the charges levelled against the accused persons and convicted the accused persons. The same was challenged before the Appellate Court. the Appellate Court also on re-appreciation of material on record, confirmed the judgment of the Trial Court with the modification, particularly directing this petitioner to pay compensation of Rs.1,00,000/- apart from the sentence of 3 months which was reduced from 2½ years.

4. The counsel appearing for the petitioner would vehemently contend that it will not attract the offence of Section 326 of IPC. In support of his contention, he relied upon the judgment of this Court reported in 2010 SCC ONLINE KAR 5294 in the case of STATE vs SHEENAPPA GOWDA AND OTHERS wherein this Court made an observation that if the prosecution fails to produce the X-ray before the court, 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 PW1 would only show that there was injury as described in the wound certificate-Ex.P2. When PW1 suspected such fracture, he ought to have referred the injured-PW4 for taking X-ray to confirm his finding that there is fracture of middle phalanx. It is now well settled that unless the prosecution produces the X-ray for confirmation of fracture opined by the doctor and medical examination clinically, it cannot be said that the accused have caused grievous injury of fracture. Having considered the same, it discloses that instead of comes to the conclusion that it will not attract Section 326 of IPC and the offence committed by them falls within the ambit of Section 324 of IPC.

5. The counsel appearing for the petitioner also relies upon the order passed by this Court in Crl. R.P No.330/2017 dated 21.02.2024 wherein the accused No.1 had challenged the very same judgment in C.C.No.71/2010 and the said revision petition was allowed in part and offence punishable Section 326 of IPC is set aside. The counsel would submit that in view of the said revision petition arrived out of the very same judgment and this Court set aside the offence punishable under Section 326 of IPC and maintained the conviction for the other offences, this Court has to extend the very same benefit to this petitioner also.

6. The counsel appearing for the State would vehemently contend that that eye witnesses are PW1, PW2, PW4 and PW6 and they have categorically deposed before the Court the manner in which the incident was taken place and particularly this revis