(1) HIGH COURT OF MADHYA PRADESH : JABALPUR Cr. A. No. 1136/1995 Mohd. Alim @ Munna Vs. State of M.P. As Per : G.S.Solanki, J. Shri S.K.P. Verma, Advocate for appellant. Shri P.C.Jain, PL for State. Judgment heard on : 1.2.2011 Judgment delivered on : 20.4.2011 J U D G M E N T 1. The appellant has preferred this appeal under section 374(2) of Cr.P.C. being aggrieved by judgment dated 17.8.1995 passed by Third Additional Sessions Judge, Sagar in S.T. No. 294/1993 whereby the appellant has been convicted under section 307 of IPC and sentenced to R.I. for 5 years and fine of Rs. 200/-, with default stipulation. 2. The prosecution case, in short, is that on 27.8.1993 while complainant Muin (PW-1) was working at his shop, he went to answer the call of nature at the place which was adjacent to the shop of appellant/accused, appellant objected on that and threw a rim of cycle on complainant Muin but complainant ran away towards Railway station. After some time when complainant came back, appellant assaulted on his head by an iron rod from the back side, (2) due to which complainant fell down and appellant gave two blows of rod on his legs also. It is further alleged that Nanhe (PW-11) and Gulam Rabbani (PW-6) also reached on the spot. Complainant lodged FIR (Ex.P-12), which was written in Roznamcha by Baijnath Singh (PW-10). Complainant was sent to the hospital along with Mutzarar Form (Ex.P-13). Dr. G.S.Choubey (PW-19) examined and treated him and found a lacerated wound ad-measuring 3 x 1 x 0.5 cm on his head and there was bleeding from the head of the complainant. It is also mentioned in the report (Ex.P-21) that complainant may feel pain in both the knees. Doctor has opined that injury No. 1 may be dangerous to life in the absence of proper treatment. 3. After usual investigation, appellant was charge sheeted before JMFC, Sagar who committed the case for trial to the Court to Sessions. Learned Additional Sessions Judge framed charges under section 307 of the IPC against the appellant. 4. The appellant abjured the guilt and pleaded false implication. 5. After completing the trial and on appraisal of evidence on record, learned Additional Sessions Judge convicted the appellant as mentioned hereinabove. 6. Learned counsel for the appellant has submitted that appellant has been falsely implicated in the case. He has further submitted that the trial Court has committed error (3) in not appreciating the evidence on record in its proper perspective. Injury caused to the complainant was not dangerous to life. The case of the appellant at the most will fall under section 325 of IPC. He has further submitted that appellant has suffered the jail sentence of about 1 ½ years, the ends of justice would be met if, he is sentenced for the period already undergone and fine. 7. Learned counsel for the State has justified the findings recorded and supported the judgment passed by the trial Court. 8. I have heard the learned counsel for the parties, perused the impugned judgment, evidence and other material on record. Complainant Muin (PW-1) deposed that primarily the appellant threw a rim of cycle on him but he ran away, thereafter when he returned back to his shop, suddenly appellant assaulted by an iron rod on his head from the back side, due to which he fell down, thereafter appellant/accused gave two further blows on his legs. He further deposed that Gulam Rabbani (PW-6) and Ramsagar (PW-5) took him to the hospital where he remained admitted for two days, thereafter, he was referred to Jabalpur Medical College, where he was admitted for 21 days. He admitted in his cross examination that appellant assaulted him by a pipe of tap. Despite extensive cross examination, he remained undeviated from his version. His version was supported by (4) Ramsagar (PW-5), Nanhe (PW-11) and Gulam Rabbani (PW-6). Name of Nanhe finds place in the FIR. Though Gulam Rabbani turned hostile, however, he has partly supported the prosecution story that Muin was lying on the spot and there was bleeding from his head. Ramsagar (PW-5) supported the version of the complainant. At the time of incident he was sitting near the place of incident. Other witnesses like Mohd. Dara (PW-14) also partly supported the version of the complainant. Nand Kumar (PW-15) reached to the spot after listening the hue and cry. He deposed that appellant/accused was beating complainant Muin. 9. Dr. P.K.Dhagat (PW-16) of Tily Hospital,Sagar examined the complainant and found injury ad-measuring 3 x 1 x 0.5 cm on his head. He opined that injury may be dangerous to life, if it is not treated. This fact is further corroborated by the version of Dr.G.S.Choubey (PW-19). He also opined that injury may be dangerous to life if it is not treated timely or properly. His report is (Ex.P-21) and bed head ticket (Ex. P-22). Complainant deposed that he was shifted to Medical College, Jabalpur where he was operated and remained admitted for about 21 days. A summary of MLC report is attached with bead head ticket in which his period as indoor patient is written from 30.8.93 to 21.9.1993. (5) 10. Dr. V.K.Mishra (PW-9) deposed that on 28.8.1993 he took x-ray of complainant Muin and found fracture of parietal region. X-ray report is (Ex.P-10) and X-ray plate is (Ex.P-11). 11. Learned counsel for the appellant/accused has submitted that it was not a case under section 307 of IPC but it was a case under section 326 of IPC. After careful scanning of aforesaid evidence on record, it is proved on record that when complainant returned back to his shop, suddenly appellant assaulted on him by pipe of tap on his head due to which he fell down. As per medical evidence, there was fracture of parietal region. In my opinion, the prosecution has failed to proved the case under section 307 of IPC because it was a single injury on his head and same was caused by pipe of tap. Medical evidence is also shaky in this regard. Both the Doctors opined that injury may be dangerous to life, if remained untreated. Thus, in my opinion, it would be the case under section 326 of IPC instead under section 307 of IPC. 12. Resultantly, the appeal is allowed. Conviction and sentence passed by the trial Court is hereby set aside. Appellant is convicted under section 326 of IPC. Though, appellant is in jail since 18 months, however, considering the facts and circumstances of the case in which the appellant committed the offence, I am not inclined to sentence the appellant for the period already undergone. (6) Thus the appellant is sentenced to R.I. for 2 years and fine of Rs. 200/- and in default he has to undergo further S.I. for one month. Appellant has suffered the jail sentence of about 18 months. Set off of period of custody will be taken into account at the time of preparation of supersessions warrant. Record be transmitted back to the trial Court along with the copy of this judgment for compliance and necessary action. (G.S.Solanki) Judge PB