THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl. R.C.No.1405 of 2005 Date: 27.09.2011 Between: M.V. Seshaiah … Petitioner AND K. Pullaiah and another … Respondents THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl. R.C. No.1405 of 2005 ORDER: This revision is laid by the de facto complainant (PW.1) in Crime No.88 of 2001 on the file of the Bandi Atmakur Police Station, Kurnool District, from which C.C.No.112 of 2002 on the file of the Judicial Magistrate of First Class, Nandyal arose. The sole accused was charge sheeted and charged for the offence under Section 326 of the Indian Penal Code (IPC). The prosecution examined six witnesses and marked Exs.P.1 to P.5. While accepting the evidence of the prosecution witnesses and disbelieving the defence, the trial Court, however, held that the injury was not proved to be a grievous injury, since the Radiologist was not examined and that the accused, consequently, was punishable for the offence u/s.324 IPC only. The accused, accordingly, was convicted for the offence u/s.324 IPC and was sentenced to a fine of ` 5,000/- with appropriate default sentence. The trial Court also directed payment of ` 4,900/-, out of the said amount, to PW.1 (by way of compensation u/s.357 of the Criminal Procedure Code). Contending that the offence u/s.326 IPC was made out and that the trial Court erred in recording the conviction u/s.324 IPC instead of u/s.326 IPC. PW.1, who is the injured and victim in this case, brought the present revision. 2. The case of the prosecution that the accused beat PW.1 with a stick on his back and on his wrist is not in dispute. The dispute in the revision runs on a very narrow compass. The question is whether the injury sustained by PW.1 was a grievous injury or a simple injury. If PW.1 sustained grievous injury, the accused would be liable for the offence u/s.326 IPC. On the other hand, if grievous injury is not made out, the accused would be liable for the offence u/s.324 IPC only, as held by the trial Court. This is the only point. 3. Sri G. Ramachandra Reddy, learned counsel for PW.1 submitted that the trial Court disbelieved the defence. There is no political rivalry between PW.1 and the accused. There would also appear to be no differences of any nature between the accused and PW.1 at any point of time. It is also a fact that the accused admitted that PW.1 sustained injuries. 4. PW.2 is the wife of PW.1. PW.3 is a co-drama artist of PW.1. They are, perhaps, interested in PW.1. PW.4 is an independent witness. The trial Court believed the evidence of PW.1 primarily and the evidence of PWs.1 to 4 generally and held that the accused was responsible for the injuries sustained by PW.1. There is no controversy once again in this regard. Sri G.V.S. Mehar Kumar, learned counsel representing the accused submitted that he has not been questioning the conviction of the accused for the offence u/s.324 IPC. 5. PW.5 is the medical officer, who treated PW.1. PW.5 issued Ex.P.2 wound certificate. PW.5 claimed that PW.1 sustained fracture at the neck of the right femur. However, neither Radiologist was examined nor the x-ray marked by the prosecution in support of their case. Considering that fracture was not established, the trial Court recorded the conviction u/s.324 IPC. The learned counsel for PW.1 contended that when PW.5 medical officer certified that PW.1 suffered a fracture of the right femur and where the evidence of PW.5 is supported by PW.2 wound certificate, it should be considered that the prosecution has established that PW.1 sustained a grievous injury. Inter alia, the learned counsel for the accused contended that PW.1 sustained injury when PW.1 slipped on the floor and that the accused never caused the injuries to PW.1, as alleged by the prosecution. Be that as it may, there is no appeal from the accused. I am afraid that the accused cannot now turn round on the claim that the conviction recorded by the trial Court is improper. In fact, the basic contention of the learned counsel for the accused is that the offence u/s.326 IPC is not made out and not that no offence is made out against the accused. 6. The learned counsel for the accused claimed that the prosecution failed to establish fracture and that the accused, consequently, cannot be convicted for the offence u/s.326 IPC. Ex.P.2 wound certificate certified that there was fracture of the right femur. Ex.P.2 reveals that the Radiologist submitted a report regarding the fracture of the right femur. Curiously, x-ray relating to the fracture had not been exhibited by the prosecution. Added to it, the Radiologist was also not examined by the prosecution. This dual circumstance has been considered by the learned trial Judge, as circumstance to hold that the prosecution failed to prove that PW.1 sustained grievous injury. Where the injury has been established but where the same has not established to be grievous, the injury is liable to be treated as a simple injury. On that logic, the learned trial Judge convicted the accused for the offence u/s.324 IPC. 7. The learned counsel for the accused, inter alia, contended that the prosecution need not examine the Radiologist when it examined the medical officer, who treated PW.1 and that PW.5 and Ex.P.2 are sufficient to hold that the accused sustained grievous injuries. I n P. Jhonson v. State[1], Kerala High Court held that conviction u/s.326 IPC or u/s.325 IPC would not sustain in the absence of the examination of the Doctor, who took x- ray and in the absence of non-production of the x-ray report. In the present case, neither x-ray was marked nor the Radiologist was examined to prove that PW.1 sustained fracture. I, therefore, agree with the finding of the trial Judge that the prosecution failed to establish fracture. 8. The learned counsel for PW.1, however, contended that even in the absence of evidence of fracture, the offence u/s.326 IPC would be made out, as PW.1 suffered bodily pain for a period of more than 20 days. 9. Section 320 IPC reads: “320. Grievous hurt.—The following kinds of hurt only are designated as “grievous” :-- ……… Eightly.—Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.” 10. The Supreme Court pointed out in Harilal v. State of U.P.[2] that a hurt, in order to amount to grievous hurt, must fall under any of the clauses of Sec.320 IPC. In State v. Samaj[3], it was observed that to invoke clause 8 of Sec.320 IPC, the prosecution must prove hurt was caused to the person and further that the sufferer was in severe bodily pain for over 20 days or that a person was unable to follow his ordinary pursuits. It further amplified that the mere fact that the accused was confined to hospital for more than 20 days would not be enough to conclude that the sufferer was unable to follow his ordinary pursuits during the period. 11. The learned counsel for PW.1 contended that PW.1 was in hospital for more than 20 days and that even if the fracture was not proved, it would be tantamount to grievous injury. PW.1 deposed that he was inpatient in the Government Hospital, Nandyal for about 15 days and that he was inpatient for about a week thereafter at the Government General Hospital, Kurnool. The total period of stay in the hospital would be for over 20 days according to the learned counsel for PW.1. It may first be noticed that barring for the evidence of PW.1, there is no proof that PW.1 was inpatient for a period of 15 days at the Government Hospital, Nandyal and was also inpatient for a further period of about a week at the Government General Hospital, Kurnool. However, the accused did not suggest to PW.1 that PW.1 was not in the hospital as claimed by PW.1. I, therefore, may assume that PW.1 was inpatient for over 20 days first at the Government Hospital, Nandyal and later at the Government General Hospital, Kurnool. More importantly, PW.1 himself did not state that he could not follow his ordinary pursuits on account of his confinement to the hospital. The view of the Gujrat High Court in State v. Samaj (supra) is that mere hospitalisation is not tantamount to incapacity to follow the ordinary pursuits. PW.1 also did not whisper that he was suffering from severe bodily pains during the period of 20 days. Either of the ingredients u/s.320 (8) IPC has not been made out by PW.1 from his evidence. Consequently, it cannot be held that the prosecution established that PW.1 sustained a grievous injury from the fact that PW.1 was confined to hospital for over 20 days. Viewed in either angle, the prosecution failed to show that PW.1 sustained a grievous injury. 12. As already observed, where the injury upon the person of PW.1 has been made out and where the injury has not been shown to be a grievous injury, necessary conclusion is that PW.1 sustained a simple injury. Where such an injury was caused by the accused with a deadly weapon, the accused would be liable for punishment u/s.324 IPC. I am not able to restrain myself but to commend appreciation of the evidence by the trial Court and the manner in which the judgment was written both of which are very good. The finding of this well- written judgment of the trial Judge does not suffer from any error. The trial Court was perfectly justified in holding that the prosecution failed to establish that PW.1 sustained a grievous injury. The conviction of the accused for the offence u/s.324 IPC, therefore, is perfectly justified. There are no merits in this revision. 13. The Criminal Revision Case, accordingly, is dismissed. ________________ K.G. SHANKAR, J Date: 27.09.2011 Isn [1] 1998 Crl.L.J. 3651 [2] AIR 1970 SC 1969 [3] AIR 1969 Guj 337