DAVE, J. - (1.) THIS revision petition is directed against the judgment dt. 26. 06. 1990, passed by the learned Sessions Judge, Jaipur District, Jaipur, confirming the judgment passed by the learned Addl. Munsif and Judicial Magistrate, No. l, Jaipur Distt. Jaipur, whereby he convicted the accused for the offence under S. 326 IPC and sentenced him to undergo two years simple imprisonment and a fine of Rs. 100/ -. In default of payment of fine he was to further undergo one month's simple imprisonment.
(2.) BRIEFLY stating the facts are that a case was registered by the S. H. O. Police Station, Bajaj Nagar, Jaipur, on 12. 12. 1980, on the statement of Smt. Shanti Devi, wherein she stated that her husband made her fall on the cot and gave a bite on her nose. She shouted and then ran for help to the residence of her uncle-in-law Girdharilal. Thereafter, Nanak Ram Patel, came and scolded her husband. That she has been married for last 18 years and the attitude of her husband towards her had not been good. She stated that before 8 years, he had also biten her nose. On this statement, a case for offence under S. 325 IPC was registered which was later on converted in S. 326 IPC and on completion of investigation a charge-sheet was submitted. The prosecution examined as many as 10 witnesses in support of its case and the accused none. The trial court, convicted and sentenced the accused appellant as indicated above. The appeal preferred was also dismissed. In this revision petition, learned counsel for the petitioner submits that the conviction of the appellant for the offence under S. 326 IPC is bad in law in as much as no evidence has been led to show that the injury is grievous as defined in Section 320 IPC. It is submitted that unless the case falls within the clauses mentioned in Section 320 IPC till then it would not be safe to hold him guilty for offence under S. 326 IPC particularly, for two reasons first is that she has alleged previous biting of the nose also and secondly, according to her own statement, her husband used to get fits of insanity and it cannot be said that in that act he caused injury which comes within the purview of voluntary causing grievous injury. Learned Public Prosecutor, has supported the judgment of courts below and submitted that there is a concurrent finding of fact & this court should not interfere when after the appreciation of evidence two courts have concurred. It is further submitted that the husband has acted cruelty in causing an injury on the nose of his own wife and no lenient view can be taken in such a matter. In normal course no interference is done in the revisional jurisdiction with the findings arrived at by the courts below, yet exception to this rule, the Court has to consider the points raised by the learned counsel for the petitioner, in case, they are born out from the record. Two important questions have been raised in this case. One is that there is caused is grievous injury within the meaning of sec. 320 IPC and secondly, there is no medical evidence on record to show that the injury no evidence that it is a case of voluntary causing grievous hurt. In view of the statement of Shanti Devi in her own statement, the accused was possibly under a fits of insanity. In the instant case, when Smt. Shanti Devi, was taken to hospital and was taken to Medico Legal Jurist, it appears that she refused to get herself medically examined as she was no intending to make any case against the petitioner to that extent a document or record bears her thumb impression & the signe also of Medico Legal Jurist. However, she did not undergo the treatment. The prosecution has examined P. W. 6 Dr. B. S. Chandalia, who was head of the department of reconstruction surgery and he is his examination in Chief has stated that the patient was operated in his ward under his guidance. He further stated that the injury sustained by Smt. Shanti Devi resulted in permanent disfiguration. This witness however, could not stand the cross- examination properly & he had to admit that he neither examined Shanti Devi, resulted in permanent dis figuration. This witness however, could not stand the cross-examination properly & he had to admit that he neither examined Shanti Devi, in detail nor operated upon her. He further stated that he does not remember at what time he examined the patient. He had to admit that at the time when he examined the patient operation had already been done. In the light of the aforesaid statement made by the Doctor, no inference can be drawn that he had any opportunity to see the injury which was caused and what is required to be proved the nature of the injury sustained. The Doctor, who had no opportunity of examining the injury prior to treatment cannot in all circumstances give a correct picture of the nature of the injury which had been sustained. May be in exceptional cases of serious nature, this may be possible but reliance cannot be placed when it was open to the prosecution to have procured several other evidence which can be available on record. According to Dr. Chandalia, the house surgeon had already treated the patient and according to his own statement, Doctor, Mahesh Mangal, had signed the Ex-P-7, and it was he who had performed the operation and so also Doctor, Bafna, who was present at the time of operation. They could have been the best witness to state that what was the nature of the injury which was sustained by Smt. Shanti Devi.
(3.) IN this view of the matter, it would not be safe to convict the accused for the offence under S. 326 IPC more particularly, when according to Shanti, herself she had sustained almost similar injury on the nose before 8 years also. It is, therefore, appropriate to convict the accused for the offence under S. 325 IPC. IN the light of this I need not go to another points, event regarding quantum of sentence. It may be stated that the accused had already been in jail for over a month and according to his wise, he used to get the first of insanity and she suspected that he was getting such a fits at the time of commission of offence coupled with the fact that the Panchayat, of the community has also imposed the fine on the petitioner a sum of Rs. 10,000/- which he was asked to pay to the complainant injured. I deem it proper to reduce the sentence to the period already undergone. The result of the aforesaid discussions is that I partly allow this revision petition and acquit the accused-petitioner of the offence under Section 326 IPC and instead convict him for the offence under S. 325 IPC, I reduce the sentence to the period already undergone. The accused-petitioner is on bail and need not surrender to his bail-bonds. .;