N.M. Kasliwal, J. - (1.) This appeal by Ganga Singh accused is directed against the judgment of the learned Additional Sessions Judge, Dholpur. dated 18th July, 1975, convicting the appellant under Section 323 I.P.C. and sentencing him to six months, rigorous imprisonment and a fine of Rs. 200/- in default, one months' rigorous imprisonment.
(2.) The appellant along with four other persons were challaned under Sections 147/148, 323, 302 and 307 read with Section 149, I.P.C. for committing the murder of Shrimati Gulbai and for attempting to commit murder of complainant PW. 1 Angan Lal. The learned Sossions Judge acquitted all the accused persons of offences under Sections 148, 302 snd 307 I.P.C. The appellant alone has been convicted and sentenced under Section 323 I P.C., as mentioned above. The learned Additional Sessions Judge has convicted the appellant for having inflicted simple hurt on PW. 1 Angan Lal and in this connection he has placed reliance on the solitary statement of PW. 1 Anganlal. The learned counsel for the petitioner has contended that no reliance can be placed on the statement of PW. 1 Anganlal who has been declared hostile and whose oral testimony is contradicted by the evidence of Dr. B.K. Sharma PW. 2, who had examined his injuries. It is contended that according to the statement of Dr. B.K. Sharma, PW. 2, all the injuries found on the person of Anganlal were simple and caused by blunt object. The statement of Anganlal on the contrary is that the injuries were inflicted on him by Gangasingh appellant by farsi. It is, thus, contended that when the medical evidence is that the injuries were inflicted by blunt object, the statement of Anganlal that the injuries were inflicted by Gangasihgh by farsi cannot be believed. The learned Public Prosecutor on the other hand, has supported the judgment of the learned Additional Sessions Judge.
(3.) I have given my careful consideration to the arguments advanced by the learned counsel for both the parties. It may be mentioned, at the outset, that as regard the injuries alleged to have been inflicted by Gangasingh on Anganlal, there is a solitary statement of PW. 1 Anganlal injured himself, who had been declared hostile on the request of the Public Prosecutor. The learned Additional Sessions 1th Judge has remarked that the testimony of this witness in respect of injuries inflicted by Gangasingh appellant is clearly separable and though he might have turned hostile in respect of the injuries caused to Smt. Gulbai, the part of his statement regarding the injuries inflicted by Gangasingh remained intact. I am not impressed by the above reasoning given by the learned Additional Sessions Judge, when PW. 1 Anganlal has been disbelieved as regards the injuries inflicted on his mother Smt. Gulbai and a request was made to declare the witness hostile, his statement as regards the injuries alleged to have been inflicted on him by Gangasingh cannot be taken to be correct on its face value. Admittedly, there is no other oral evidence to corroborate his statement. The only support to his statement could have been taken from the injury report given by Dr. B.K. Sharma. PW. 2, but unfortunately, the injury report and the statement of Dr. B.K. Sharma PW 2. also do not support his statement. According to Dr. B.K. Sharma PW. 2. all the injuries found on Anganlal were caused by blunt object. Anganlal himself on the other hand, has clearly stated that the injuries were inflicted on him by Gangasingh by farsi. The learned Additional Sessions Judge in this regard has given a finding on mere surmises. In this regard, he has observed in the following manner- "In such circumstances, it is just possible that the sharp edged blade side of pharsa might have not hit his finger and Angana received injuries from its reverse side. Not a single question has been put in his cross-examination on behalf of the accused Gangasingh regarding aforesaid version of complainant Anganlal, The statement of Anganlal, therefore, finds substantial corroboration from the testimony of Dr. B.K. Sharma." In my view, the above reasoning given by the learned Additional Sessions Judge is itself faulty and he has drawn the conclusion on the basis of presumption. It was the duty of Anganlal to have said that the injuries were inflicted by Gangasingh from the reverse side of the pharsa and it was not proper for the learned trial court to have drawn any presumption in this regard. As already mentioned above, Anganla PW. 1 has been declared hostile and, in these circumstances, his statement cannot be believed without any corroboration. Thus, in my view, there is no convincing evidence led by the prosecution to hold the appellant guilty for having committed an offence under Section 323 I. P. C. In the result, this appeal is allowed, the judgment of conviction and sentence passed by the learned Additional Sessions Judge, Dholpur dated 18th July,1975 is set aside and the accused appellant is acquitted of the charge under Section 323 I. P. C. The appellant is on bail and he need not surrender to his bail bonds and the bail bonds are discharged. Sd/- N.M. Kasliwal, J.;