GULAB TIWARI Vs. STATE OF U.P.

JUDGEMENT

(1.) Sri B.N. Mohilay, IInd Addl. Sessions Judge, Mirzapur, acquitted the appellant, Gulab, under Sec. 333, of the Indian Penal Code, but had convicted him under Sec. 325 I.P.C. for giving blows to B.D. Bajpayiee. P.W.2 resulting in the loss of his teeth. Aggrieved by this judgment, the appellant has filed this appeal.

(2.) I have heard the counsel for the appellant and have gone through the evidence on record. The medical report, Ex. Ka-2 shows that B.D. Bajpayee had been examined at 20.15 p.m. on 22.11.76. The Doctor found laceration of the inner side of the upper lip opposite the left central incisor and also laceration in the sockets of the teeth which, as noted in the report, had been extracted earlier due to their being discussed. He gave the nature of the injury sustained to be simple. In his cross-examination he gave out that there was no outer injury and that the teeth had been found to be completely broken. It was argued by the counsel for the appellant that on the basis of the statement of the medical officer Dr. P.C. Kanaujiya (P.W. 4) it cannot be safely concluded that as result of the assault B.D. Bajpayee (P.W. 2) has lost any teeth for had it been no, there would have been a specific mention in that regard in the medical report. The complainant, besides, had not gone immediately to the Doctor which fact also was indicative of the probability of his having sustained merely laceration. The fact nonetheless remains that B.D. Bajpayee knew the appellant from before and could not be said to have a motive to falsely implicate hi-n and exonerate the real assailant. The complainant, B.D. Bajpayee, has explained why there was delay in the lodging of the F.I.R. At any rate I do not find the delay to be such that the entire prosecution story 'deserved to be discarded as suspicious.

(3.) The prosecution witness. Virendra had not supported the story set up by the prosecution. He denied knowledge of the incident. He, however, admitted that he had been examined by the Investigating Officer without any undue delay. The learned Addl. Sessions Judge was of the view that he had been won over by the appellant and felt no reason to discard the testimony of B.D. Bajpayee (P.W. 2) on the question of his having been assaulted by the appellant. The Principal of the College, too, had corroborated the statement of B.D. Bajpayee (P.W. 2) in this much that he had heard the hue and cry, raised on account of the incident. I think, from the evidence on record it could safely be held that the appellant had caused injury to B.D. Bajpayee (P.W. 2) and was liable to be held guilty under Sec. 323 of the Indian Penal Code. His conviction under Sec. 326 I.P.C. could not be safely upheld when from the medical report it follows that B.D. Bajpayee had received simple injury and his teeth had been removed earlier because of their having been found diseased.