J U D G M E N T

This appeal has been preferred against judgment and order dated

29.04.1998 passed by Second Additional Sessions Judge, Betul (M.P.) in S.T. No.71/1996, whereby the appellant has been convicted under Sections 325 and 307 of IPC and sentenced to undergo R.I. for 3 years and 8 years and to pay fine of Rs.2000/- and Rs.5000/- respectively with default stipulations.

2. The prosecution case, in brief, is that on 26.12.1995 at about 8:30 pm, when Ashok (PW9), Rajaram (PW16), victim Hansraj (PW8) and some other people were standing at a pan shop in Betul Bazar chauk, suddenly, the appellant, who is brother of Hansraj’s second wife, came with an iron rod and hit on his head. He sustained injury with bleeding and fell unconscious. Ashok and Rajaram took him to the police station, where Ashok lodged FIR No.137/95 under Section 324 IPC (Ex.P/7). In medical examination, conducted on the same day at 9:15 pm by Dr Ramesh Kumar Badve, two lacerated wounds on left frontal and parietal region of skull caused by hard and blunt object were detected (Ex.P/1). Dr Amar Javalkar (PW4) observed a fracture in occipital bone (Ex.P/6). His condition was not well, therefore, he was referred to CT scan and in CT scan a blood clot in right parietal region was detected (Ex.P/13). This clot was creating compression on the brain; therefore, he was operated by neurosurgeon Dr Lokendra Singh at Central Institute of Medical Sciences, Nagpur. His middle meningeal artery was found ruptured and was stitched and blood clot was removed. In reply to the query (Ex.P/8) raised by the police, Dr Badve opined that if not treated in time, the injuries of Hansraj could have been fatal to the life (Ex.P/1).

3. The police investigated the case, visited the spot and prepared spot map (Ex.P/4), seized blood stained clothes of Hansraj (Ex.P/3), recorded statements of witnesses u/S 161 CrPC and after completing the investigation, filed the charge sheet under Section 307 IPC in the Court of JMFC, who committed the case to the Sessions Court.

4. The appellant stood charged under Sections 325 & 307 IPC. He abjured the guilt and claimed to be tried contending that he has been falsely implicated.

5. The prosecution examined 16 witnesses in all. The appellant also examined 2 witnesses in his defence. After appreciating the evidence, the trial Court found him guilty under Sections 325 and 307 of the I.P.C. and sentenced him as stated here-in-above.

6. Being aggrieved, this appeal has been preferred on the grounds that this is a case of misjoinder of charges, as both the charges (u/Ss

325 & 307 IPC) have been framed and the appellant has been convicted for both the offences for the same act. Evidence produced by the prosecution clearly indicates that no offence u/S 307 IPC is made out. There is no evidence on record to show that the injured had sustained a fracture or that the injury was grievous in nature. The report (Ex.P/6) of Dr Javalkar (PW4) is based on X-ray taken after two months of the incident. He has admitted that the fracture observed by him was a recent one. He observed fracture on the occipital region of skull, while no external injury was found on this region. He has admitted that in case of injury on frontal or parietal region, fracture in occipital region is not possible. Dr Lokendra Singh (PW13) has admitted that to remove haematoma, he had opened up the skull. Thus, the fractured observed by Dr Jawalkar was not caused in the incident and was caused by Dr Singh only to operate injured Hansraj. Medical and ocular evidence is inconsistent and the medical evidence available on record does not make out a case under Section 307 IPC. A dispute was prevailing between injured Hansraj and his second wife Mamta. The appellant is brother of Mamta. Mamta was asking Hansraj to give property to her children but he was not ready and brought back his first wife. The accused being enraged and provoked had acted under a sudden and grave provocation and assaulted the injured. All