STATE OF ORISSA Vs. ABHIRAM SETHI

JUDGEMENT

(1.) Inadequacy of sentence for the offences under Ss. 279 and 338 of the Penal Code has given rise to this appeal presented by the Public Prosecutor. It is not controverted either in the trial court or in this court that the accused-respondent dashed the motor-cycle which he was driving with P. W. 3 from behind causing bleeding injuries on him. The plea in defence was that the accused-respondent was not an experienced driver as he was newly driving motor-cycle at the time of accident.

(2.) The learned trying Magistrate found that the accused-respondent was driving the vehicle rashly and negligently on the public way. He also found that on account of the rash and negligent driving, P.W. 3 sustained grievous hurt as a result of the accident. Finding the accused guilty under Ss. 279 and 338, I.P.C. the learned Magistrate convicted him and sentenced to pay a fine of Rs. 200/- on each count which is the subject-matter of this appeal.

(3.) The injury report has not been proved in this case and the Medical Officer has not been examined. On the evidence of P.W. 3 that he sustained fracture of his hand, it is difficult to come to the conclusion that he sustained grievous hurt as for a layman it is not possible to draw the inference that it was a fracture. The ingredients of grievous hurt as provided under S. 320, I.P.C. have not been proved. Accordingly, the accused cannot be convicted under S. 338, I.P.C. In exercise of the power under S. 377(3), Cr. P.C. I set aside the conviction and sentence inflicted on the accused respondent under S. 338, I.P.C. This will not, however, absolve the respondent from the offence under S. 337, I.P.C. since on the admitted facts P.W. 3 sustained injuries as a result of the accident provided the act of the respondent is rash and negligent.