SBCr.Appeal No.83/86. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. J U D G M E N T S.B. CRIMINAL APPEAL NO.83/1986. Bhanwar Singh & Ors. Vs. State of Rajasthan Date of Judgment : September 4, 2008. PRESENT HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri A.K. Gupta and Shri Vijayant Nirwan for the accused-appellants. Shri D.D. Sharma, Public Prosecutor for the State. Shri Mahendra Goyal and Shri Rajkumar Goyal for the complainant. **** Reportable BY THE COURT :- This criminal appeal is directed against the judgment & order of learned Additional Sessions Judge Baran dated 10/2/1986 thereby convicting the appellant-appellants No.1 and 2 Bhanwar Singh and Parmanand for offence under Section 326 read with Sectioni 34 IPC and sentencing each of them with rigorous imprisonment for three years with a fine of Rs.2000/-, in case of default of payment of fine, to further undergo rigorous imprisonment for six months. SBCr.Appeal No.83/86. 2 Accused-appellant No.3 Kanhaiya Lal though was convicted for offence u/S.323 r/w. S.34 IPC but he was released on probation. 2) Shri A.K. Gupta, learned counsel for the accused-appellants has argued that accused-appellants Bhanwar Singh and Parmanand could not have been convicted for offence under Section 326 IPC because the evidence that has been produce does not prove such charge against them beyond reasonable doubt. Two witnesses namely; PW-14 Shivcharan and PW-15 Sajjan Bai, who were the independent eye-witnesses, though produced by the prosecution, but they did not support the prosecution case. That apart, satement of injured PW-13 Rampratap is also full of contradictions, therefore, conviction of accused-appellants cannot be sustained on his sole testimony. Further, it is evident from the statement of PW-13 Rampratap that occurrence took place in the night and not in evening and there was no sufficient light enabling him to identify the accused. Accused-appellants have thus falsely been implicated on the basis of mere doubt and due to enmity. It was contended that PW-1 Mohan, PW-2 Sushila and PW-3 Kanchan are not eye-witnesses of the occurrence. Their evidence fall within the category of hearsay evidence therefore their testimony cannot be relied on to sustain the conviction. Learned counsel argued that conviction of accused-appellants Bhanwar Singh and Parmanand for offence u/S.326 IPC cannot at SBCr.Appeal No.83/86. 3 all be sustained because PW-4 Dr.B.D. Lahoti in injury report Exh.P.2 prepared by him on visual examination advised x-ray of injured Rampratap in respect of Injuries No.1 & 2. Although x-ray plates and x-ray report Exh.P3 and Exh.P4, respectively, were produced but Radiologist who subjected injury examination was not produced and in absence of evidence thereof, it was not proved that x-ray plate was of injured- Rampratap although x-ray report was prepared by the Ratiologist. In absence of evidence of Radiologist, offence against accused-appellants Bhanwar Singh and Parmanand merely on the basis of testimony of Dr.B.D. Lahoti PW-4 could be proved only for offence under Section 324 IPC and not one under Section 326 IPC. In support of his argument, he placed reliance on the judgment of Principal Seat at Jodhpur in Naraindas Vs. State of Rajasthan & Ors. : 2004(3) RCC 1379 and Ganpatlal Vs. State : RCC 1989 (14) 278. 3) Shri A.K. Gupta, learned counsel for the appellants submitted that the accused-appellants and the complainant are neighbours and that they have now compromised the matter. Duly attested compromise-deed by way of affidavit of injured-Rampratap has been produced on record through his counsel Shri Mahendra Goyal, Advocate. Learned counsel for the appellants submitted that in view of the compromise and the fact that they could be convicted only for offence under Section 324 IPC, sentence may be accordingly modified SBCr.Appeal No.83/86. 4 by substituting the same to the period already undergone by them. In support of his contention, learned relied upon judgments of Supreme Court in Pappu & Ors. Vs. State of Punjab : JT 1999(10) SC 353 and State of U.P. Vs. Fazilur Rehman : JT 2002(10) SC 137 and argued that in these two cases even when conviction of the accused for offence u/S.307 IPC along with other offences was maintained but their sentence was reduced to the period already undergone because of the compromise arrived at between the parties. 4) Shri D.D. Sharma, learned Public Prosecutor has opposed the appeal and submitted that there was ample evidence on record which proved the offence u/S.326 IPC against appellants Bhanwar Singh and Parmanand. Besides, offence u/S.323 IPC against accused appellant Kanhaiya Lal also proved. It was argued that injury report was prepared by Dr.B.D. Lahoti PW4 which proved nature of injuries and therefore mere non-examination of the Radiologist would not be fatal to the case of prosecution as the medical officer himself was capable of giving the opinion on the basis of x-ray plates. Learned Public Prosecutor argued that even if PW-14 Shivcharan and PW-15 Sajjan Bai have turned hostile then also, statement of injured PW-13 Rampratap is sufficient to prove offence u/S.326 IPC. SBCr.Appeal No.83/86. 5 5) Shri Mahendra Goyal, learned counsel appearing for the complainant however submitted that matter has now been compromised between the parties and duly attested compromise-deed has been produced in which he identified complainant-Rampratap. 6) I have given my thoughtful consideration to the arguments aforenoted and perused the material on record. 7) Although injuries on the person of injured- Rampratap have been proved by the evidence of PW4 Dr.B.D. Lahoti but it is based on the injury report Exh.P.2 which he prepared on visual examination of injured-Rampratap. In that report, he reserved his opinion in respect of Injuries No.1 & 2 untill after the injured was subjected to x-ray examination. X-ray Plate Exh.P.3 and x-ray report Exh.P.4 were produced on record but none of them have been proved by production of Radiologist. In order to prove that those injuries were in the nature of grievous hurts, non-production of Radiologist would certainly be detrimental to the case of the prosecution. It was Radiologist, would had to prove that he subjected injured-Rampratap to examination and in this manner, x-ray plate Exh.P.3 could be linked to the injured and on that basis, it was Ragiologist alone who could further prove that Exh.P.4, the x-ray report was prepared under his signature in which he found injuries in the nature of fractures. Contention of the SBCr.Appeal No.83/86. 6 learned Public Prosecutor is that such injuries should be treated to be grievous hurt on the mere statement of PW4 Dr.B.D. Lahoti because he was capable of giving such opinion upon examination of x-ray plate. But in the first case, perusal of statement of Dr.B.D. Lahoti does not indicate any such assertion made by him and secondly this could not be so opined by Dr.B.D. Lahoti unless x-ray plate itself was proved to be that of injured-Rampratap. Though on the basis of statement of Dr.B.D. Lahoti, PW4, injuries No.1 and 2 merely proved as simple hurt but those injuries in absence of examination of Radiologist, cannot be accepted as grievous hurts in the meaning of Section 320 IPC. In Naraindas supra also such was the question where this court due to non-production of Radiologist did not find injury proved as grievous hurt and same view was taken in Ganpatlal supra. 8) The Supreme Court in the aforecited cases of Pappu and State of U.P. Vs. Fazilur Rehman supra, while taking note of the compromise between the parties reduced the originally awarded sentence to the period already undergone. The Surpeme Court in Bankat and another Vs. State of Maharashtra : AIR 2005 SC 368 also taking note of the fact that 10 years have elapsed from the date of incident and complainant and the accused have compromised, reduced the originally awarded sentence to the period already undergone by the accused. SBCr.Appeal No.83/86. 7 9) In view of all these judgments, accused- appellants Bhanwar Singh and Parmanand deserves to be convicted for offence under Section 324 IPC. However, keeping in view the fact that incident in the present case had taken place as far as back as 2/10/1982 and almost 26 years have gone by since then, accused- appellants Bhanwar Singh and Parmanand at that time were 24 years and 30 years old, respectively and by now they have crossed the age of 50 and 56 years, respectively and parties have now entered into a compromise which is on record, their sentence deserves to be reduced to the period of sentence already undergone by them. 10) In the result, the appeal is allowed in part. The conviction of accused-appellants Bhanwar Singh and Parmanand is altered from offence u/S.326 IPC to offence u/S.324 IPC. Their sentence is reduced to the period already undergone by them. However, conviction and sentence awarded to accused-appellant Kanhaiyalal are maintained. 11) It is, therefore, ordered that accused- appellants Bhanwar Singh S/o Raj Bahadur Singh and Parmanand S/o Rattiram be released on the period of sentence already undergone by them. Record be transmitted to the court below forthwith. (MOHAMMAD RAFIQ), J. anil/-