STATE Vs. KISHORE POLE

JUDGEMENT

(1.) This appeal by the State questions the acquittal of the respondent for the offence punishable under Section 338 of Indian Penal Code. Learned Judicial Magistrate, First Class had convicted the respondent for the offences punishable under Sections 279 and 337 of Indian Penal Code and sentenced him to pay fine of Rs.1000/- and 500/- respectively on the two counts. The accused does not seem to have challenged his conviction and sentence before the Sessions Court.

(2.) Learned Additional Public Prosecutor submitted that the learned Trial Magistrate was in error in refusing to convict the respondent for the offence punishable under Section 338 of I.P.C. by observing that there was no evidence of any grievous hurt being caused to any victim in the accident. He points to the medicoligal certificate, which had been placed on record in the trial Court and which had been admitted upon notice by the Assistant Public Prosecutor under Section 294 of Cr.P.C. Certificates in respect of one Anant Morje and Utkarsha Sawant show that these two persons had suffered respectively undisplaced fracture of right tibia and dislocation of right elbow joint. The Medical Officer had referred the patient to Orthopedic surgeon for treatment and confirmed the above outcome. Therefore, learned Magistrate should have seen that the prosecution had proved that some of the victims had suffered grievous injuries.

(3.) Learned Counsel for the respondent on the other hand submits that merely tendering certificates without examining the Doctor would not have been enough and one of the victims was also not examined. Therefore, she supports the conclusion arrived at by the trial Magistrate. Once the defence admits the certificates, which are sought to be tendered by the prosecution, this contention on the part of the accused cannot at all be accepted. Since there was material before the learned Magistrate showing that at least two persons suffered fracture and dislocation, learned Magistrate should have seen that there was material to record conviction for the offence punishable under Section 338 of Indian Penal Code as well. Therefore, to that extent, the appeal shall have to be allowed.