RAJESH ALIAS VIMAL KUMAR Vs. STATE DELHI ADMINISTRATION

JUDGEMENT

(1.) The appellants have been convicted under section 307 read with section 34 of the. Indian Penal Code and each one of them has been sentenced to undergo rigorous imprisonment for a period of three years with a fine of RS.1000.00 each. Feeling aggrieved by the said judgment of conviction and the order of sentence they have preferred this appeal.

(2.) The learned counsel for the appellants had been brief but incisive. They have pressed the appeal only on one ground and it is that the doctor who examined the injured and opined that the injuries were dangerous in nature had not been examined. They say that in view of this lacuna the conviction ought to have been only under section 324 read with section 34 of the Indian Penal Code.

(3.) The perusal of the impugned judgment would go to show that this very point was urged before the learned Additional Sessions Judge but without success. Probably the attention of the learned Additional Sessions Judge was not drawn to the judgment of this court in Narinder Kumar vs. State of Delhi, 1980 CC Cases 62 (Delhi). In die said case also the doctor who had attended the injured during treatment was not produced and as such the injury could not be proved to be grievous. It was consequently held to be simple. The prosecution suffers from the same malady in the present appeal too. Though it placed on the record the medico-legal report, it never thought of examining the Doctor who had opined that the injuries were dangerous in nature. Since that particular opinion has not 'been proved through the doctor who gave it and since we do not know on what basis he formed that opinion, and keeping also in view the medicolegal report placed on the record, I do feel that in the present case the conviction shall have to be only under section 324 read with section 34 of the Indian Penal Code. The appeal with regard to conviction is accepted to that extent.