MOHICHAND SAO Vs. STATE OF BIHAR

JUDGEMENT

(1.) This revision is directed against the judgment dated 23.1.2001, passed by Shri Udai Narain Singh, 2nd Additional Sessions Judge, Jehanabad, in Criminal Appeal No. 5 of 2000/72 of 1997, confirming the order of conviction rendered by the Judicial Magistrate, 1st Class, Jehanabad in its judgment dated 4.10.1997 in G.R Case No. 670 of 1993 Tr. No. 264 of 1997. Revisionist No. 1 was convicted under Sections 324 and 149 of the Indian Penal Code and he was sentenced to undergo R.I. for six months. Revisionist No. 2 Yogendra Prasad was convicted under Sections 325/149 of the Indian Penal Code by the trial Court, but the appellate Court converted his conviction into an offence under Section 323 of the Indian Penal Code and sentenced him to undergo S.I. for six months.

(2.) It has been submitted by the revisionist's lawyer that as alleged revisionist No. 1 Mohichand Sao assaulted the informant with Garasa, but the victim received one lacerated wound on his person of the dimension of 2 1/2" x 1/4" x 1/8". This injury was caused on the middle of scalp of the informant. Although there was allegation that the informant was assaulted by Mohichand Sao with Garasa, the nature of injury indicated that it was a lacerated wound on the scalp of the informant so the doctor described the injury to have been caused by hard and blunt sub- stance.

(3.) I find that the trial Court had convicted Mohichand Sao for the offence under Section 324/149 of the Indian Penal Code, but the appellate Court convicted this accused revisionist for the offence under Section 323 of the Indian Penal Code perhaps in view of the nature of injury found on his person. I find further that Mohichand Sao along with others was charged under Sections 147, 148, 324 and 325/149 of the Indian Penal Code. So in view of the nature of injury on account of blow inflicted by him upon the informant, he would be legitimately convicted for the offence under Section 323 of the Indian Penal Code, because perhaps his blow hit the informant with the handle portion of Garasa. I am, therefore, of the opinion that the appellate Court rightly convicted Mohichand Sao under Section 323 of the Indian Penal Code. So iar the revisionist No. 2 is concerned, he had dealt lathi blow upon the arm of the informant and the doctor described his injury to be a fracture injury. That was the reason why he was convicted by the trial Court for the offence under Section 325 of the Indian Penal Code. However, the appellate Court reduced this offence to an offence under Section 323 of the Indian Penal Code because the doctor (PW 7) did not refer the patient to any radiologist to get his injury x-rayed, although the x-ray report and the x-ray plate were filed. But the appellate Court held that these were not connected with the injury which was inflicted by the revisionist No. 2. That was the reason why the appellate Court convicted revisionist No. 2 only for the offence under Section 323 of the Indian Penal Code. I am of the opinion that the appellate Court had no business to disbelieve the medical evidence simply because PW 7 did not refer the injured to a radiologist when the nature of injury was clearly a fracture. The appellate Court should have relied upon the medical evidence and he should not have gone beyond the circumstance on record in recording the finding that the x-ray plate was not connected with the injury No. 2 upon the informant. It is not necessary that a victim must get his injury x-rayed without any advice from the treating doctor. A patient is free to get the best medical treatment which he feels he should get whether advised by the doctor or not. However this Court will not enhance the punishment. Hence I do not think it necessary to interfere with the findings recorded by the appellate Court and the sentence imposed by it.