GUPTA, J. - (1.) ACCUSED appellant Nikoo Ram has been convicted under Section 307 IPC and sentenced to undergo rigorous imprisonment for three years and pay a fine of Rs. 500/-, in default 3 months' rigorous imprisonment by the judgment dated 24. 7. 80 passed by the Additional Sessions Judge No. 1 Hanumangarh.
(2.) THE facts as stated in the FIR Ex. P/4 lodged by Taru Ram are that on 22. 1. 79 his brother Kesra Ram had gone in 'barat' of his brother-in-law in Chak 13 Rohimunda and that when the 'barat' was taking dinner and talks were going on, Nikoo Ram picked up a 'ghotna' from there and all of a sudden inflicted a blow on the head of Kesra Ram. On this report, a case under Section 308 IPC was registered. THE police submitted challan after completion of the investigation. A charge under Section 307 IPC was framed against the accused. THE prosecution examined PW 1 Dr. Paras Jain, PW 2 Dr. Shankar Lal, PW 3 Dr. R. K. Gupta, PW 4 Kesra Ram, PW 5 Indraj, PW 6 Tulcha, PW 7 Taru Ram, PW 8 Khyali Ram and PW 9 Charan Singh. Accused in his statement recorded under Section 313, Cr. P. C. denied the correctness of the statements given by the witnesses. He stated that the witnesses have given false statement because of enmity. He examined no witness in defence. THE learned trial Judge after hearing the parties convicted the accused as above. Arguments of learned counsel for the appellant and the learned Public Prosecutor appearing for the respondent State have been heard. The learned counsel for the appellant has contended that the learned trial Court has not properly appreciated the evidence and has come to erroneous finding that the accused had hit Kesra Ram on his hand. He further submitted that in any case a charge under Section 307 IPC was not established. According to him the act of the accused did not travel beyond Section 325 IPC and the accused should be dealt with under the provisions of the Probation of Offenders Act. On the other hand learned Public Prosecutor appearing for the respondent State has tried to support the judgment of the trial Court I have carefully read the evidence produced in the case. Kesra Ram (PW 4) has deposed that when he was taking his meals accused Taru Ram hit on his head by a 'ghotna' and as a result of the blow he fell down and became unconscious for about two minutes. He also deposed that he had seen Khyali Ram and Indraj catching hold of the accused. There is nothing in the cross examination of this witness as to disbelieve him. There is no suggestion as to why he would falsely implicate the accused in this case. The statement of Kesra Ram finds support in the medical evidence contained in the statement of Dr. Paras Jain (PW1) who has stated that on examination he found lacerated wound on the head of Kesra Ram. Ofcourse, wrong date 26. 1. 79 has been stated in the examination-in-chief of Dr. Paras Jain, however, a reading of his cross examination makes it clear that he has seen the injuries of Kesra Ram on 24. 1. 79. This fact is also evident by the injury report Ex. P/1 which was prepared on 24. 1. 79. Dr. Paras Jain has deposed that the lacerated wound, on the right parietal region of Kesra Ram was caused by blunt weapon. Thus, the medical evidence fully corroborates the evidence produced in the case. It is true that Khyali Ram who is said to have witnessed the occurrence has not supported the prosecution case and has been declared hostile. But because of this reason, the prosecution case cannot be thrown away. Indraj (PW 5) was also present at the time of occurrence. He has fully supported the statement of Kesra Ram when he has stated that accused Nikoo Ram inflicted a blow by a 'ghotni' on the head of Kesra Ram. The prosecution case cannot be doubted on the mere ground that the FIR was lodged on the third day of the occurrence. PW 7 Taru Ram who had lodged the FIR has given satisfactory explanation of the delay. He has stated that he got information from Khyali Ram in the evening and thereafter he went to Hanumangarh hospital where he saw the condition of his brother Kesra Ram and then he went to lodge the report. The explanation of delay in these circumstances was satisfactory.
(3.) THUS, the learned trial court has rightly held that the accused had caused one injury on the head of Kesra Ram on 22. 1. 79. Now, the point that arises for consideration is as to whether the offence under Section 307 IPC is made out in this case or not. The learned trial Judge has placed reliance on the statement of Dr. R. K. Gupta (PW. 3) who has deposed that Kesra Ram was indoor patient in the hospital and he had fracture of his right parietal bone and because of defused injury and counter coupe injury on his head he was feeling difficulty in speaking and eating. He has also stated that this injury could be dangerous to the life. A reading of the statement of Dr. R. K. Gupta reveals that he had given the report Ex. P/3 on the basis of the notes recorded by the surgeon on the Bed Head Ticket. In the report Ex. P/3 also it has been stated as follows: - Clinical condition: - "opinion given after consulting Surgeon and Bed Head Ticket. " Dr. Gupta has nowhere stated that he himself had examined Kesra Ram. His report Ex. P/3 is based on the consultation with the Surgeon and the notes recorded on the Bed Head Ticket. The Surgeon and the doctor who had recorded notes on the Bed Head Ticket have not been examined. The report Ex. P/3 prepared by Dr. Gupta cannot be called direct evidence, therefore, no finding could be based on the report Ex. P/3. ;