V.Mishra, J. - (1.) This is an appeal against acquittal arising out of a complaint case (No. 1190 of 1968 - Tr. No. 295/70) which has been tried by Shri S. K. Sinha, Munsif-Magistrate First Class, Jamui.
(2.) The appellant was the complainant. Briefly stated, the case is that he had sold onion seedlings worth Rs. 11 to Bhikhan Dhobi, the price of which had not been paid to him. On 28-2-1968, at about 7.30 a.m., when the complainant Sanichar Mahton was returning after answering the call of nature, he found the accused respondents Bhikhan Dhobi and Kishun Dhobi going to their fields. Sanichar demanded from Bhikhan the sum of Rs. 11. Bhikhan felt offended at the demand made on that occasion when he was on way to field and there was some altercation between them, in course of which Bhikhan inflicted a lathi blow on his right thigh and Kishun gave him another lathi blow on his left side. Accused Buniyad and Dalip also reached the place of occurrence in support of Bhikhan and Kishun said and they also assaulted Sanichar with lathis. The occurrence was seen by some of the people who were nearabout in the fields and also came on hearing hulla. The accused parsons, however, ran away from there. Sanichar was brought in injured condition to Jamui Subdivisional hospital. Information was sent to the police from the hospital. The police came and recorded the fardbeyan, but did not institute any case as the injuries were all simple and the offence was non-cognizable. On the 29th February, 1968 itself the complainant sent a complaint to the Subdivisional Magistrate, Jamui.
(3.) In the hospital Sanichar was examined by Dr. D. P. S. Mauar (P.W. 8) On his person he found the following injuries : "(i) Abrasion 1/4" x 1/4" on tips of right little finger. (ii) One bruise 8" x 2" horizontal across middle of left side of back. (iii) One bruise 6" x 1" oblique in the lower aspect of right side of back (iv) One swelling 2" x 1" on the right scapular region on its upper part. (v) One abrasion 1/2" x 1/4" with swelling 2" x 1" around it on outer aspect of lower third of left forehead. (vi) One abrasion 1" x 1/4" with swelling 2" x 1" around it on outer aspect of lower third of right thigh:" Out of these injury nos. (i), (iv), (v) and (vi) were found to be simple, but the opinion about injury nos. (ii) and (iii) was reserved. Sanichar had been admitted in the hospital for the treatment of these injuries and on 6-3-1968 he was referred to Monghyr Sadar hospital for X'ray examination. He remained at Monghyr Sadar hospital from 7-3-1968 to 19-3-1968 and in between this period he was twice X-rayed. It was found that injury no. (ii) was a fracture of the 7th rib and as such this was a grievous injury. Injury no. (iii) was, however, found to be simple. 3-(a) When Sanichar was sent back from Monghyr hospital, he was again admitted in Jamui Subdivisional hospital where he was treated for a few days. It was on 26-3-1968 that he was examined on solemn affirmation in support of the complaint which he had filed on 29-2-1968. Cognizance was taken and the case was thereafter tried in course of which accused Kishun Dhobi, who had inflicted the grievous injury was charged under Sec. 323 of the Indian Penal Code (hereinafter referred to as 'the Code') and all the rest were charged under Sec. 323 of the Code.;