Criminal Appeal No.1229/2010 10/10/2011 Shri Manoj Saxena, learned Advocate for the appellant Kailash. Shri Ashish Vyas, learned Counsel for respondent Nos. 3 & 4. Shri R.S. Chouhan, learned Govt. Advocate for the respondent No.6/State. Heard on the question of admission. This appeal has been filed by the appellant/complainant under Section 372 of the Criminal Procedure Code,1973 against the judgment dated 31/8/2010 passed by the Additional Sessions Judge, Rajgarh in Sessions Trial No.80/2010, whereby the learned trial Court acquitted the respondents No.1 and No.2 under Section 148, 307 in alternative 307/149 and respondents No.3 to 5 under Section 147, 307/149 of IPC and convicted the other accused/ respondents i.e. Vinod, Durgesh and Radheshyam for the offence punishable under Section 323 in lieu of Section 307 of the IPC. Brief facts of the prosecution case are that on 14/12/2009, the complainant has lodged report against the accused/respondent Nos. 1 to 4 that he has been assaulted by the accused persons by deadly weapon (lathi and iron rod) with their common object and intention to cause the death. After investigation charge sheet has been filed by respondent No.6/State against accused/respondent Nos. 1 to 5 under Sections 148, 307 in stead of Section 307/149 of the IPC. Learned Counsel for the appellant has drew our attention to paragraph 13 of the impugned judgment of the trial Court and has submitted that Ex.P/16 and Ex.P/ 17 are X-ray reports of the Bombay Hospital, Indore. No opinion has been given by the treating doctor nor the treating doctor/Radiologist was examined before the learned trial Court. It is also submitted that the learned trial Court accepted the injuries mentioned in Ex.P/16 & P/17, but committed an error in converting the charges into Section 323 of the IPC. It has been further submitted by the Counsel for the appellant that the complainant was admitted at Bombay Hospital, Indore from 15/12/2009 to 16/1/2010 as evident from the discharge ticket dated 16/1/2010 of the injured, but no one from the Bombay hospital were examined by the prosecution and therefore, the learned trial Court committed an error for acquitting two of the accused persons and also committed an error in convicting the co-accused persons only for offence under Section 323 of the IPC. We have gone through the discharge summary report of the Bombay Hospital, Indore dated 16/1/2010. As per this report the appellant was suffering from old parenchymal disease treated 10 years back and it is also mentioned that the old papers were not available. There is no material evidence on record to show that two accused persons were present at the place of incident or they have caused any injury to the injured. In respect of accused persons, Vinod, Durgesh and Radheshyam, after accepting the medical report Ex.P/16 and P/17 in toto the trial Court came to the conclusion that the injured Kailash received simple injury and therefore, other three accused persons have been convicted for offence punishable under Section 323 of the IPC. There is no medical evidence to prove that the injury sustained by them to injured was grievous in nature or if proper treatment was not given to him the same were enough to cause death. In respect of appellant Kailash, the contention of the learned Counsel for the appellant is that the appellant was treated for the period from 15/12/2009 to 16/1/2010 at Bombay Hospital, Indore and therefore, as per provisions of Section 320 of IPC the respondents/co- accused cannot be convicted for offence under Section 323 of the IPC. In respect of the respondent No.3 Raju @ Ajay Kumar the injured Ramesh (P.W. 5) in his statement has deposed that he was not assaulted by him. There is no medical documents to prove about the injury sustained to the appellant on 14/12/2009 or that he was admitted at the Bombay Hospital, Indore for a period about one month. It is not disputed that the appellant is suffering from old parenchymal diseased treated 10 years back, according to the X-ray report of the Bombay Hospital, Indore as well as the discharge summary report, which specifically mentions that the appellant sustained simple injury, we are of the opinion that the learned trial Court has not committed any illegality or error in convicting the three other accused persons for offence under Section 323 of the IPC. Learned trial Court in para 16 of the impugned judgment specifically observed that the other co- accused persons had not caused any injury to the injured and they have been acquitted from the offences by the learned trial Court. The nature of injuries sustained, the weapon used and as per medical report as noted above the injuries were not enough to cause death, the trial Court has rightly convicted the respondent Nos.1, 2 and 5 for the offence punishable under Section 323 of IPC. On due consideration of the facts and circumstances of the case, we are of the opinion that the reasoning assigned by the learned trial Court is just and proper and the findings recorded by the trial Court is just and proper. The view taken by the trial Court is a possible view. Taking into account all relevant aspects, order of the trial Court needs no interference. In view of the above, the appeal filed by the appellant has no merit and is accordingly dismissed. (P.K. Jaiswal) (Mrs. S.R. Waghmare) Judge Judge moni