Full Judgment
Kanta Bhatnagar, J.
1. This revision petition is directed against the judgment of the learned Sessions Judge, Merta dated January 31, 1974 by which he while maintaining the conviction of the accused-appellant by the learned Mwisiff Magistrate, Merta reduced the substantive sentence of two years' rigorous imprisonment to one and a half years' rigorous imprisonment, and maintain the sentence of fine of Rs. 300/-.
2. The learned Counsel for the petitioner advanced his arguments to assail the findings of the two courts below on the ground that there is specific evidence of Dr. Sohanlal (CW. 1) that the fracture of Shanker could not have been caussd by the same object by which the external injury has been caused. According to the learned Counsel it is evident and held by the learned Judge deciding the appeal that the sword alleged to be recovered from the accused Shabharam, would be held to be responsible for the injury of Shanker-injured. According to the learned Counsel it is the specific case of the prosecution that only one weapon was used by Shobharam and only orca injury was caused by him hence in view of Dr Sohan Lal's statement that is the external injury by sharp edged weapan and the corresponding fracture could not have been caused by the same object makes the case of the accused-petitioner suspicious and therefore his conviction under Section 326, Indian Penal Code, is not maintainable. It his been submitted by the learned Counsel that the parties filed a compromise h the appellate court and because of the conviction being under Section 326 Indian Penal Code, the Court could not consider the same and that may be taken in to consideration now, & a liberal view of the matter may be taken. The learned Public Prosecutor contended that though Dr. Surendra Kumar (PW 8) has stated that the injury of Shanker could have been caused by sword though of course not by the sword exhibited in the Court. The contention of radiologist Or Sohan lal is different, but he having not initially examined the injury he should not be believed in preference to Dr. Surendra Kumar.
3. I heard 'he rival contentions & carefully examined the testimony of these two doctors, Dr. Surendra Kumar examined the injured initially but not being of any specific opinion about the nature of fracture he referred the case to radiologist and Dr. Sohanlal, X Rayed the injury and issued a certificate, and formed an opinion that there was a fracture of febula. It so appears that the opinion of Dr Surendra Kumar not being specific the trial Court thought it proper to get the matter clarified by examining the radiologist concerned. The radiologist has of course stated that the clean cut marginal surface injury could have been caused by some sharp object, but at the same time he was not specific on the point and stated that there is greater possibility of its being caused by blunt object even. He further stated the possibility of its being sharp edged weapon Then he further stated that the possibility of that injury being by sharp edged weapon could also be there. There is one sentence appearing in the statement of Dr. Sohanlal which makes the case of the accused under Section 326, Indian Penal Code doubtful. It is the opinion of the doctor that the fracture could not have been caused by the same object by which the clean cut marginal external injury might have been caused. This creates a doubt whether any sharp edged weapon alleged to have been used by the accused could be responsible for any fracture. It is not the case of the prosecution even that any blunt object or more than one sharp edged object was used by the accused. Under these circumstances while the guilt of the accused for causing some injury to Shanker is well established, I am of the opinion that the prosecution could not prove it beyond doubt that the grievous injury, that is, the facture was caused by Shobha Ram by any sharp object. If the prosecution case would have been about Shobharam using a blunt object, he could have been convicted under Section 325, Indian Penal Code. With a specific plea of Shobharam using sharp object his casein view of the peculiar statement of Dr Sohanlal does not travel beyond the ambit of Section 324, Indian Penal Code.
4. Under these circumstances, I partly accept the revision petition, set aside the conviction of the accused-petitioner under Section 326, Indian Penal code and convert the same to Section 324, Indian Penal Code, & for this offence I hold that the sentence undergone by the accused which comes to about three months, and the sentence of Rs. 300/- fine, which he has already deposited will meet the ends of justice.