HIGH COURT OF THE CHHATTISGARH AT BILASPUR Criminal Appeal No. 1696 of 1995 APPELLANT Shambhoo Nath Sinha, sén of a B.N. Sinha, aged 43 years, resident of village Kosrhanda, Police Station Darrha, Tahsil Korba, District Bilaspur Versus (Now State of Chhattisgarh) g ‘ Appeal u/s 374 (2) of the Code of Criminal Procedure Appearance: t J j RESPONDENT ' r The State of Madhya Pradesh t ; V Mir. Pradeeb Rajgir, Advocate for the appellant. Mr. R.R. Sinha, Panel Lawyer forthe State. JUDGMENT (12.07.2011) SUNIL KUMAR SINHA, J. (1) This appeal is directed against the judgment dated 5th of December, 1995 passed in Sessions Trial No. 179/88 by the First Additional Session Judge, Bilaspur, Link Court Korba. By the impugned judgment, the appellant has been convicted uls 333 IPC and sentenced to undergo R.l. for 1 year and to pay fine of Rs.1‘,‘000/—, in default to further undergo S.l. for 3 months. 6 (2) The facts, briefly stated, are as under:- The appellant was a dumper—operator in Western Coal Fields Limited (WCL). Complainant— R.K. Shrivastava (PW-1) was Executive Engineer and he was on duty on 7.6.83. The allegations are that the appellant assauited him by hand due to which he received injuries on his eye and nose. The matter was reported to LJ/ 1 ‘ I 2 Cr.A. N0. 1696 of 1995 @ the Higher Authority and thereafter a First Information Report (F.I.R. — Ex.—P/6) was also Iodged. lnjured- R.K. Shrivastava (PW- 1) was sent for his medical examination and was examined by Dr.(Smt.) P.B. Puri (PW-6) who noticed one contusionvon the Ieft eye-[id having sweiling on the lower portion of the left eye. She also noticed another contusion of 1/2 inch x 1/2 inch on the surface i of lower eye-Iid of the left eye and nose. Swelling was also l present. There was another contusion of 1/2 inch x 1/2 inch over the right upper lip. She opinedthat except injury No.2, all the injuries were simple. For injury No.2, she advised for X—ray examination. “injury report is Ex.-P/4. lt appears that complainant— R.K. Shrivastava was sent for his X-ray examination. X-ray was taken by Dr. G.K. Rahalkar (PW-8). He wrote on the requisition slip (Ex.- P77) that there was a crack fracture of nasal bone. After completion of usual investigation, the charge-sheet was filed in the Court of Judicial Magistrate First Class, Korba, who in turn committed the matter to the concerned Session Court, from where, it was received on'transfer by the First Additional Session Judge, Bilaspur, Linck Court Korba, who conducted the trial and convicted & sentenced the appellant as aforementioned. l (3) , Mr. Pradeep Rajgir, learned counsel appearing on behalf of the appellant, argues that it was not established that the appellant had assaulted the injured due to which he received the above injuries. He also argues that only X—ray slip has been produced a‘hd X-ray plate has not been produced, therefore, it was not established that the injury sustained by complainant— R.K. Shrivastava was grievous injury, and an offence u/s 333 IPC would not be made out. 'Trx (4) Mr. R.R. Sinha, learned Panel Lawyer appearing on behalf of the State, opposes the arguments and supports the judgment passed by the Session Court. 3 Cr.A. No. 1696 of 1995 (5) i have heard learned counsel for the parties at length and have also perused the records of the session case; r (6) i So far as first argument of Mr. Pradeep Rajgir is concerned, there is no force in it. R.K. Shrivastava (PW-1) has clearly deposed that when he \lvas on duty on 7.6.83, he was assaulted by the appellant on his face. He jhas clearly deposed that he was on duty in the-shift of 5.00 a.m. to l 1.30, p.m. and the above incident took placeat about 7.00 a.m. He has beemoross-examined at length by the counsel for the appellant, but g nothing material could be brought on record, on which, either his testimony may be discarded or it may be said that he has falsely implicated the appellant in the present crime. His above version is supported by other witnesses and documents on record including entries of relevant attendance register (Ex.-P/5-A) and the F.l.R. (Ex.-P/6). Therefore, there is sufficient evidence on record to hold that it was the appellant who assaulted the deceased due to which he received injuries on his eye and nose. (7) Now we shall consider the second argument of Mr. Pradeep Rajgir. $ e (8) Dr.(Smt.) P.B. Puri (PW-6) found the above 3 injuries on the eye, nose and lip of the injured. For injuries No. 1 & 3, she clearly deposed that they were simple injuries and for injury No.2, she advised for X-ray ’ examination. According to the prosecution, the appellant was sent for X- :l‘ ray examination to Dr, G.K. Rahalkar (PW-8). He deposed that he had conducted the X-ray examination of injured- R.K. Shrivastava and he Cr’A. No. 1696 of 1995 found that there was a crack fracture of his nasaf bone. This He deposed on the basis of entry made in Ex ~P/7 Which is a slip for X—ray examination Issued by X ray Department of B P M Hosplta| Though It Is mentioned m the said document as crack fracture of nasal bone but the X-ray plate relating to the X—ray examination conducted by Dr G K i Rahalkar (PW-8) has not been filed by the prosecution to substantiate the above report given by Dr G K Rahalkar (PW-8). Therefore, in absence of the production of X-ray plate by the prosecution merely on the ba3is of entry of such nature in the slip for X-ray examination it cannot be said that it was proved beyond all reasonable doubt that the ‘ complainant sustained fracture on his nasal bone on account of the above injury caused to him by the appellant 3' (9) ESection 333 IPC prowdes that whoever voluntarily causes grievous hurt to any person being a public servant in the discharge of his duty as sucnnublic servant, or With intent to prevent or deter that person or any other public servant from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by that person in the lawful discharge of his duty as sucgh public servant, shall be punished u/s 333 IPC. Therefore, for holding the appellant guilty of an offence u/s 333 IPC it is required to be proved that the accused voluntarily caused grievous hurt to the victim. ln the present case, Dr.(Smt.) P.B. Puri (PW-6) stated that injuries No. 1 & 3 were simple and injury No. 2 was‘no‘t provedxto be grievous. Therefore, there was no evidence to prove that injured/complainant in fact, received grievous injury and thus offence u/s 333 IPC would not be made out. ln the above facts and, circumstances, the learned Session Judge erred in law in \\‘ 5 C1".A. N0. 1696 of 1995 holding that the appellant was guilty of offence u/s 333 IPC. The conviction and sentence awarded to the appellant u/s 333 IPC, therefore, cannot be sustained and same deserve to be set-aside. At the Q same time, it is proved. on record that the appellant. voiuntarily caused siméle hurt to the complainant while he was discharging his duty as a publiic servant, therefore, i am of the view that the appellant was liable l for punishment u/s 332 IPC. l (10); Vin the result, the appeal is partly allowed. The conviction and sentences awarded to the appellant u/s 333 IPC are set-aside. Instead thereof, the appellant is convicted u/s 332 IPC and punishment of fine of Rs.2,000/— is imposed upon the appellant. lt is directed that the appellant shall deposit the fine amount within a period of one month from today. If the amount of fine is not deposited in time, the appellant shall be liable to undergo R.l. for 6 months. It is made clear that if any amount is already depOsited by the appellant, that shall be adjusted in the above fine amount imposed upon him. lt is stated that the appellant is on bail. His bail bonds are cancelled and surety stands discharged Sdl— Suail Kumar Sinha " Judge . 71;,LLV vatti