JUDGMENT 1. - Appellants Sawai Singh and Hari Singh were convicted by the learned Sessions Judge, Jhunjhunu by his order dated 14.2.1976 in Sessions case No. 23 of 1975 and Sawai Singh appellant was sentenced to undergo four years' rigorous imprisonment under Section 307 Indian Penal Code while the appellant Hari Singh was sentenced to undergo one year's rigorous imprisonment under Section 325 Indian Penal Code. As both these appeals arise out of the same judgement given in connection with one case, I proceed to decide to decide both of these appeals by this single judgement. 2. The case of the prosecution is that on March 27, 1975 at about 8.00 a.m. in village Gatbada the appellants and other two accused Mool Singh and Devi Singh, with the common intention to murder Nathu Singh caused him injuries by sword and lathies and also caused simple and grievous injuries to Jagmal Singh in furtherance of the common intention to cause him such injuries. It is said that Jagmal Singh made an enquiry from the accused about the theft of a radio and a sum of Rs.500/- at which the accused got engaged and attacked Jagmal Singh, Nathu Singh tried to intervene and he was also attacked with sword and lathies. 3. After investigation the Police challaned the accused along with Mool Singh and Devi Singh in the court of Munsif and Judicial Magistrate, Nawalgarh, who by his order dated 9.7.75 committed them to stand their trial under Sections 307, 326, 325 and 323 read with 34 Indian Penal Code. 4. After trial the learned Sessions Judge, convicted the appellants as mentioned above. Devi Singh convicted under Section 323 Indian Penal Code and was sentenced to pay a fine of Rs.500/- and in default of payment of fine to undergo simple imprisonment for a period of three months. Mool Singh was given the benefit of doubt and was acquitted. Aggrieved by this conviction and sentence appellants Sawai Singh and Hari Singh have preferred this appeal. 5. I have heard Mr. Dave, who has put in his appearance on behalf of the Legal Aid Society for the cause of the appellants and the learned Public Prosecutor and have also gone through the record of the case. 6. The only point which has been pressed by Mr. 5. I have heard Mr. Dave, who has put in his appearance on behalf of the Legal Aid Society for the cause of the appellants and the learned Public Prosecutor and have also gone through the record of the case. 6. The only point which has been pressed by Mr. Dave on behalf of Sawai Singh is that there is no evidence of the Medical Officer to the effect that the injuries caused by Sawai Singh were sufficient in the ordinary course of nature to cause death and the offence therefore does not fall within the ambit of Section 307 Indian Penal Code and it may however fall within the ambit of Section 326 Indian Penal Code, but as the offence under Section 326 is not the minor offence of the offence under section 307 Indian Penal Code the accused Sawai Singh cannot be punished under Section 326 Indian Penal Code also but he can only be punished under Section 324 Indian Penal Code and as such he has requested for reducing the sentence of Sawai Singh. 7. I have gone through the statements of Medical Officer Dr. Mohan Prakash Bhatnagar, PW.7. I have also looked into the statements of other witnesses for the prosecution. The prosecution has failed to bring on record that the injuries on the body of Nathu Singh were such as they would in the ordinary course of nature be sufficient to cause death. PW.7 has simply said that Nathu Singh's condition was very serious and if he would have not been given adequate medical aid there were chances of his death. But such a vague statement is not sufficient to bring an offence under Section 307 Indian Penal Code. 8. It has further been submitted by Dr. Dave that though the offence may fall under Section 326 Indian Penal Code yet it being not the minor offence of Section 307 Indian Penal Code the punishment cannot be converted for an offence under Section 326 Indian Penal Code and the accused may be convicted for the offence under Section 324 Indian Penal Code. 9. Dave that though the offence may fall under Section 326 Indian Penal Code yet it being not the minor offence of Section 307 Indian Penal Code the punishment cannot be converted for an offence under Section 326 Indian Penal Code and the accused may be convicted for the offence under Section 324 Indian Penal Code. 9. It may, however, be said that even if the offence under Section 326 Indian Penal Code is not the minor offence of Section 307 Indian Penal Code, the appellant Sawai Singh in the present case could be convicted for an offence under Section 326 Indian Penal Code even in the absence of a charge in respect of it, if on the facts of the case he could be charged alternatively under Section 307 Indian Penal Code and 326 Indian Penal Code in view of the provisions of Section 237 of the Code of Criminal Procedure, 1898. For this view I am fortified by the decision in Bijay Chandra Patra v. State of West Bengal, AIR 1952 SC 105 where their Lordships of the Supreme Court have held that the accused may be convicted under Section 326 Indian Penal Code even in the absence of a charge in respect of it, if on the facts of the case, he could be charged alternatively under Section 326 Indian Penal Code. In the present case the accused were committed to the court of Sessions by the learned Magistrate to stand their trial for the offences under Section 307, 326, 325 323 read with Section 34 Indian Penal Code. I need not discuss the facts of the case in detail and it would suffer to say that there can be no doubt that in the facts and circumstances of the case, it was open to the learned Session judge to charge the appellant Sawai Singh alternatively under Section 307, 326 Indian Penal Code and the appellant Sawai Singh can be convicted under Section 326 Indian Penal Code. In Jai Narain Mishra and ors. v. State of Bihar, AIR 1972 SC 1764 their Lordships of the Supreme Court while setting aside the conviction under Section 307 Indian Penal Code convicted the accused under Section 326 Indian Penal Code. 10. Now, I come to the case of Hari Singh. It has been argued by Mr. In Jai Narain Mishra and ors. v. State of Bihar, AIR 1972 SC 1764 their Lordships of the Supreme Court while setting aside the conviction under Section 307 Indian Penal Code convicted the accused under Section 326 Indian Penal Code. 10. Now, I come to the case of Hari Singh. It has been argued by Mr. Dave that the X-Ray of the injured Jagmal Singh was taken for confirmation but the X Ray plates have not been produced and therefore the benefit should go to the accused Hari Singh and he should have been convicted under Section 323 Indian Penal Code instead of under Section 325 Indian Penal Code. 11. I have gone through the statement of PW.7 Dr. Mohan Prakash Bhatnagar. He has stated as regards the injuries sustained by Jagmal Singh, that the injury No. 2 was grievous and the rest of the injuries were simple and all the injuries were caused by hard and blunt weapon within 6 to 24 hours of the examination. The injury report Ex. P/16 is admitted to be in his hand written, bears his signatures and is correct. X-Ray was taken of Jagmal Singh's injuries and fracture of ulnar shape in its lower ⅓ of left forearm was seen. X-Ray report of which is Ex. P/17 also bears his signatures. The fracture was clinically detectable and the X-Ray was taken to confirm it. Ex. P/17 has been signed and prepared by the witness himself. There is nothing to suggest that this Medical Officer did not look into the X-Ray report and read the plate and that it was some one else. This report also confirms the fracture of ulnar shape in its lower ⅓rd of left forearm. Looking to the evidence on record the conviction of Hari Singh under Section 325 Indian Penal Code by the learned Sessions Judge is correct. 12. As regards the sentence awarded to Hari Singh appellant it is only one year's rigorous imprisonment and there seems to be no reason to reduce the same. 13. As regards the appellant Sawai Singh his conviction for an offence under section 307 Indian Penal Code is set aside and he is convicted under Section 326 Indian Penal Code. His sentence of four year's rigorous punishment is reduced to that of three year's rigorous punishment. 14. 13. As regards the appellant Sawai Singh his conviction for an offence under section 307 Indian Penal Code is set aside and he is convicted under Section 326 Indian Penal Code. His sentence of four year's rigorous punishment is reduced to that of three year's rigorous punishment. 14. In result, with the above modification of the conviction and sentence of appellant Sawai Singh the appeal filed by him is partly allowed. The appeal filed by Hari Singh is dismissed. Jail Authorities be informed accordingly. *******