IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT : THE HON’BLE SRI JUSTICE K.G. SHANKAR Civil Revision Case.No.1176 of 2004 Date:29.01.2011 Between:- Erra Narsimhulu .. Petitioner A N D State of A.P. Rep. by its Public Prosecutor, High Court of A.P., Hyderabad. .. Respondent. The Court made the following: ORDER: The sole accused in C.C. No.168 of 1999, on the file of Judicial Magistrate of First Class, Chevella, was found guilty for the offence under Section 326 I.P.C. for causing grievous injuries to P.W.2. He was sentenced to suffer rigorous imprisonment for a period of one year and also to pay fine of Rs.2,000/- in default of which to undergo simple imprisonment for a period of three months. Out of the fine amount of Rs.2,000/-, Rs.800/- was awarded as compensation to P.W.2. 2. Aggrieved by the judgment of conviction, the accused preferred appeal in Crl.A.No.69 of 2003. The learned III Additional Sessions Judge, Ranga Reddy District dismissed the appeal confirming the judgment of the trial Court. Hence this revision by the accused. 3. The primary contention of the learned counsel for the accused is that the offence under Section 326 I.P.C. is not made out and that the accused could be found guilty for the offence under Section 324 I.P.C. only. 4. The accused allegedly beat P.W.2 with the handle portion of an Axe. P.W.1, who is the father of the victim-P.W.2, rushed to the scene on hearing the alarm of the victim. P.W.1 took P.W.2 to Chevella Police Station and lodged a complaint under Ex.P.1. P.W.4, who was the then Station House Officer of Chevella Police Station, referred P.W.2 to Government Hospital, Chevella. P.W.2 allegedly underwent treatment at the Government Hospital, Chevella. Ex.P.2 is the medical certificate. Under Ex.P.2, it was certified that P.W.2 sustained as many as three fractures. On the basis of Ex.P.2, the trial Court found the accused guilty for the offence under Section 326 I.P.C. The appellate Court confirmed the same. 5. In P. JOHNSON AND OTHERS v. STATE OF KERALA[1], the Kerala High Court held that when the X-ray report was not produced and the Radiologist was not examined by the prosecution, it could not be held that the victim sustained grievous injuries, so much so, the accused could not be convicted for the offence under Sections 325 and 326 I.P.C. In ERLAPALLI PRAKASHAM v. STATE OF A.P.[2], this Court held that the non-examination of the Radiologist and the non- production of X-ray would lead to the conclusion that the prosecution failed to establish the grievous hurt. 6. In the present case, neither the Radiologist was examined nor the X-ray films showing that P.W.2 sustained as many as three fractures were filed. P.W.3, who is the medical officer, deposed that he examined P.W.2 on 26.03.1999 and found three fractures. The offence has taken place on 25.03.1999. P.W.3 did not treat P.W.2 on the date of the incident. He admitted that he did not give first aid to P.W.2. His evidence that P.W.2 sustained grievous injuries, admittedly, is on the basis of X-rays. Where P.W.2 admittedly sustained injuries and where the prosecution, at the same time, did not examine the Radiologist and did not mark X-rays, there is no alternative but to conclude that P.W.2 sustained merely simple injuries. The evidence on record otherwise establishes that P.W.2 sustained injuries in the hands of the accused. Where the accused is found to have caused injuries to P.W.2 and where the injuries are not established to be grievous injuries, the accused shall become punishable only for causing simple injuries. Where, admittedly, the accused used the handle portion of an axe, I consider that the prosecution established that the accused committed the offence under Section 324 I.P.C. only. The accused, however, cannot be convicted for the offence under Section 326 I.P.C. 7. When the accused is guilty for the offence under Section 324 I.P.C., sentencing him to suffer rigorous imprisonment for one year is on the harsher side. The accused was also fined to Rs.2,000/- by the trial court and the same was confirmed by the appellate court. I, therefore, consider that the imprisonment already suffered by the accused, which is about one month shall be treated as sentence of imprisonment against the accused while maintaining the fine and the payment of compensation to P.W.2 as awarded by the trial Court intact. 8. Accordingly this Criminal Revision Case is allowed in part. Conviction recorded against the accused by the trial court and confirmed by the appellate Court under Section 326 I.P.C. is modified into conviction under Section 324 I.P.C. The fine imposed by the trial Court and confirmed by the appellate court at Rs.2,000/- with appropriate default sentence is confirmed. The award of compensation to P.W.2 out of the fine amount paid by the accused is also confirmed. 9. To the extent of the imprisonment, the sentence of imprisonment already undergone by the accused is found to be sufficient sentence. The accused is accordingly sentenced to imprisonment already undergone by him. The Criminal Revision Case is accordingly allowed in part. __________________ K.G.SHANKAR, J 29th January 2011 KSP [1] 1998 Crl.L.J. 3651 [2] 2002 (2) ALT (Crl.) 4 (A.P.)