- (1.) THE respondent Mathura Lai has been convicted Under Section 323, IPC and sentenced to pay a fine of Rs. 125/- by the Munsif Magistrate, Chhoti Sadari. The State of Raiasthan has filed this appeal against that -judgment. The brief facts of this case are that on February 19. 1968. at 8 P. M. Narain P. W. 1 was sitting in the house of Gokul. The accused Mathura Lai came there. He was armed with an axe. He took Gokul with him under the pretext that he would like to discuss something with him. Naravan and Mangi Lai P. W. 2 followed Gokul and the accused Mathura Lai. Gokul was asked to go up to the village temple and when he was climbing the steps, the accused Mathura Lai save an axe blow on the back side of his head. The victim fell down. Mangi Lai and Naravan rushed to the place where Gokul was lv-irig. They lifted him up. They saw on his head, an incurve. which was bleeding. Gokul was taken in the Government dispensary, Chhoti Sadari, to which he was admitted. Later on Naravan went to the police station. Chhoti Sadari. and submitted first information report. The police registered a case Under Section 326, IPC and after investigation put up a challan in the Court of learned Munsif Magistrate, Chhoti Sadari. Before the trial Court the accused pleaded not guilty. In support of its case the prosecution examined 9 witnesses. In his statement, recorded Under Section 342, Cr. PC the accused denied the commission of the crime. He further said that he was sitting in the temple and he. told Gokul that if, according to him, he owed nothing to him, he should open the door of the temple. While going to the temple Gokul slipped on the steps and fell thereon as a result of which he sustained some injuries. He produced 3 witnesses in his defence. Eventually the trial Court convicted and sentenced the accused, as stated above.
(2.) AGGRIEVED by the above judgment. the State has taken this appeal. The contention of learned Counsel for the appellant is that the Court below went wrong in convicting the accused for causing simple hurts only. The medical evidence produced in the case shows that the injury No. 1 was grievous in nature and was caused by a sharp edged weapon. The accused. therefore, should have been convicted] Under Section 326, IPC or in the alternative Under Section 324 IPC and not Under Section 323, IPC sim-pliciter. learned Counsel for the respondent submitted that there is no medical evidence-in this case. Medical certificate Ex. P. 6 is alleged to have been given by Doctor Naveen Chand Upadhava In-charge Primary Health Centre, Chhoti Sadari. The Doctor died in the month of November. 1968. He. therefore, could not be examined before the trial Court and in absence of such examination the certificate could not be treated as a substantive piece of evidence.
(3.) A persual of Ex. P. 6 shows that Gokul received the following iniuries: (1) Incised wound 1 1/2" x 1/2" x 1/2" on the right side of the. scalp parietal reeion. It was grievous in nature and was caused by a sharp edged weapon. (2) Bruise 3" long Horizental on right scapula. It was simple in nature and was caused by a blunt object. Because of the death of Dr. Naveen Chand Upadhava the prosecution ' examined Compounder Motilal P. W. 6, who had served under Doctor Naveen Chand in the Chhoti Sadari dispensarv. He testifies that the Doctor Naveen Chand died in November. 1968. The medical certificate Ex. P. 6 is in the handwriting of the deceased. It also bears his signatures. Learned- Munsif Magistrate. Chhoti Sadari, dealt with this aspect of the matter in the penultimate para of his iudgment. His reasons are auoted below: Since the Doctor is dead, he could not be examined or cross-examined, it is. therefore, not proper to hold that injury No. 1 was grievous and was caused by a sharp edged weapon. Both the iniuries are simple and were caused by blunt object. The passage avers that the Munsif-Magistrate had no clear conception of law. It is, therefore, necessary to clarify the true legal position. The injury report Ex. P 6, given by Dr. Naveen Chand, is a previous statement based on the examination of the injured. It is not a substantive piece of evidence. The oral deposition of the Doctor before the trial Court is alone substantive evidence-The medical certificate could be used only for the purpose of corroboration Under Section 157 or for refreshing the memory, as laid down in Section 159 or for contradicting his statement in accordance with Section 145, Evidence] Act. Rohuni Singh v. Empress. (1883) ILR 9 Cal 455, Bechan Prasad v. Jhuri A. I. R. 1936 All 363. Rangappa Goundan v. Emperor. A. I. R. 1936 Mad 426, are the authorities in which the doctors were available but were not examined. The Hieh Courts held that the certificates issued by the Doctors were not admissible in evidence without the examination of their authors.;