JUDGMENT 1. - This is an application in revision filed by Jai Kishan and Mahesh Chand alias Bhanna u/ss. 397 and 401 of the Code of Criminal procedure against the judgment of the learned Additional Sessions Judge No. 2, Jodhpur, by which the appeal filed by Jai Kishan and Mahesh Chand alias Bhanna (petitioners) and Kedar Nath, Hari Kishan, Ratan Lal and Ram Kishan was partly accepted and Ram Kishan, Ratanlal, Kedar Nath and Hari Kishan were acquitted of the offences punishable under sections 147, 223 read with section 149 and 325 read with section 149, I. P. C. while Mahesh Chand alias Bhanna was convicted under section 325, I.P.C, and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 400/-, in default of payment of fine to further suffer rigorous imprisonment for two months and Jai Kishan was convicted of the charge under section 323, I.P.C. and sentenced to undergo rigorous imprisonment for three months only. 2. it will not be out of place to mention that Jai Kishan and Mahesh Chand were tried by the Munsiff and Judicial Magistrate, First Class, Phalodi along with Kedar Nath, Hari Kishan, Ratan Lal and Ram Kishan for offences under sections 147, 323 and 325 read with section 149, I.P.C. and found guilty thereof. Each of them was sentenced to six months rigorous imprisonment under section 147, I.P.C. and to suffer six months rigorous imprisonment under section 323 read with section 149, I.P.C. and to undergo rigorous imprisonment for two years and to pay a fine of Rs. 400/-, under section 325 read with section 149 I.P.C. and in default of payment of fine to further suffer rigorous imprisonment for three months. It was further ordered by the Munsif and Judicial Magistrate, Phalodi, that out of the fine realised from the accused persons half of it would be awarded to the complainant by way of compensation. All the substantive sentences awarded to each accused on each count were, however, ordered to run concurrently. 3. The prosecution case against the two petitioners and their companions was as follows : Loonkaran son of Shesh Karan Thanvi resident of phalodi was a teacher in a Government School at Phalodi. on March 20, 1973, he was on leave, as he was not feeling well on that day. 3. The prosecution case against the two petitioners and their companions was as follows : Loonkaran son of Shesh Karan Thanvi resident of phalodi was a teacher in a Government School at Phalodi. on March 20, 1973, he was on leave, as he was not feeling well on that day. While Loon Karan was taking rest in his house, Ramkishan accused, came to his house and informed him that Kedar Nath, Hari Kishan, Ratanlal and Jai Kishan were calling him. hood Karan then accompanied Ram Kishan and came to their shop. As soon as he reached there, all these persons, i.e. Jai Kishan, Hari Kishan, Ratanial, Kedarnath and Ramkishan along with Mahesh Chand alias Bhanna made an attack on him with hockey sticks.They beat Loon Karan with the weapons in their hands as a result of which the latter fell down and became unconscious. After a short while, when he regained conscious he saw several persons standing by his side. Jas Raj, Baij Nath and Deo Kishan Vyas came to the rescue of Loon Karan who, after his rescue, rushed to the police station, Phalodi, the very day at about 1 p.m. The police asked better particulars from Loon Karan and recorded them in the first information report itself. Loon Karan was sent for medical examination, soon thereafter, but as no Medical Officer at Phalodi was available on that day, he was taken to Jodhpur for treatment and examination of his injuries. Loon Karan was examined by Dr P. Dayal, Medical Jurist, Mahatma Gandhi Hospital, Jodhpur. Upon examination the Doctor found as many as six following injuries on his body:- 1. abrasion 1 cm. x 0.5 cm. on the anterior aspect of left knee. There was ill-defined swelling over the region. 2. complaint of pain in the left wrist but there were no external injuries. 3. abrasion 1 cm. x 1 cm. on the anterior aspect of right leg at its middle. 4. bruise 2 cms x 1 2 cms over the right zygomatic region of face. 5. complaint of pain, in the left thigh but there was no external evidence of injury. 6. complaint of pain in the abdomen on left side but there was no external evidence of injury. The Doctor advised X-ray examination for injuries Nos. 1, 2, and 4. All other injuries were simple in nature and appeared to have been caused by a blunt object. 6. complaint of pain in the abdomen on left side but there was no external evidence of injury. The Doctor advised X-ray examination for injuries Nos. 1, 2, and 4. All other injuries were simple in nature and appeared to have been caused by a blunt object. The duration of the injuries was within 3 to 4 days. X-ray examination was taken in the presence of Dr. P. Dayal, and it revealed fracture of the left patella bone. However, there was no evidence of any bone injury on the left wrist and on the face. Dr.P. Dayal was, however, of opinion that injury No. 1 only was grievous in nature while all other injuries were simple in nature. Upon receipt of the injury report, the Police registered a criminal case under section 325, I.P.C. and took up usual investigation into the matter. Upon completion of investigation, the police filed a charge-sheet under sections 147, 323 and 325/149, I.P C. against all the six accused incline ding the two petitioners in the court of the Munsiff and Judicial Magistrate-Phalodi, who tried all the accused persons and convicted and sentenced them in the manner stated above. Aggrieved by their convictions and sentences, all the accused persons including the two petitioners preferred an appeal in' the court of the Sessions Judge, Jodhpur, The appeal was, however, heard by the Additional Sessions Judge No. 2, Jodhpur, who convicted and sentenced Mahesh Chand alias Bhanna under section 325, I.P.C. simpliciter rand Jai Kishan under section 323, I.P.C. and acquitted all the other accused of the charges framed against them. The two petitioners, therefore, have challenged their convictions and sentences by way of this revision-petition. 4. I have carefully gone through the record and heard Mr. Bhim Raj Purohit, learned counsel for the petitioner and Mr. M.D. Purohit, Public Prosecutor, for the State, Firstly, it was contended by Mr. Bhim Raj Purohit, learned counsel for the petitioners that conviction of Mahesh Chand alias Bhanna under section 325, I.P.C. is bad in law in the absence of any legal proof of any grievous injury having been inflicted by him on the person of Loon Karan. It was further urged that there is no reliable evidence on the record to prove the guilt of the two petitioners and both the courts below committed grave error in relying upon the testimonies of interested eyewitnesses and inimical witnesses. It was further urged that there is no reliable evidence on the record to prove the guilt of the two petitioners and both the courts below committed grave error in relying upon the testimonies of interested eyewitnesses and inimical witnesses. The Public Prosecutor on the other hand argued that the prosecution has succeeded in proving beyond reasonal the doubt that Mahesh Chand alias Bhanna voluntarily caused grievous hurt to the body of Loon Karan and Jai Kishan caused simple hurts to him without any lawful excuse. 5. I have considered the rival contentions mentioned above. Firstly, I take up for discussion the evidence against Jai Kishan, petitioner, Loon Karan P.W. 1 stated on oath at the trial that when he caught hold of the hoc-key stick of Mahesh Chand alias Bhanna petitioner, Jai Kishan inflicted a blow on the wrist of his hand, as a result of which he left the hockey stick of Mahesh Chand Shesh Karan P.W.2 is not an eye-witness to the occurrence He merely professed to have seen Jai Kishan and Mahesh Chand alias Bhannd armed with hockey sticks. Deo Kishan P.W.4, who claimed to have eye-witnessed the occurrence, stated at the trial that Loon Karan was beaten by Jai Kishan and Mahesh Chand alias Bhanna Mahesh Chand and/Jai Kishan had hockey sticks in their hands. According to his version, Mahesh Chand alias Bhanna had first struck a blow on the right knee of Loon Karali as a result of which Loon Karan fell down-Thereafter all the three began to shower blows on his body, while Kedar Nath, Ram Kishan and Ratan Lal were instigating them to beat Loon Karan. In his cross-examination Deo Kishan further stated that when Loon Karan alias Shanker fell down, Jai Kishan aimed a blow at him, but Loon Karan tried to ward off the blow by raising his hands and in this attempt he sustained an injury on this eye. Ratan Kanwar P. W. 6 also professed to be an eye-witness to 'the occurrence. She claimed to have seen Jai Kishan and Mahesh Chand alias Bhanna beating Loon Karan alias Shanker with lathis. According to her version these two persons gave a good beating to Loon Kaham In her cross examination she further stated that Kedar Nath Hari Kishan, Ratan Lal and Ram Kishan co-accused were not present there. She claimed to have seen Jai Kishan and Mahesh Chand alias Bhanna beating Loon Karan alias Shanker with lathis. According to her version these two persons gave a good beating to Loon Kaham In her cross examination she further stated that Kedar Nath Hari Kishan, Ratan Lal and Ram Kishan co-accused were not present there. The evidence of the aforesaid eye-witnesses so far as it related to the Participation of Jai Kishan petitioner in the assault made on Loon Karan is not credible because it is in direct conflict with the testimony of Dr. P. Dayal, P.W. 8 Who medically examined the injured. Dr. P. Dayal clearly stated in his deposition that there was no external injury on the left wrist of Loon Karan. On the right wrist and the Doctor did not detect any injury. He simply stated that Loon Karan complained of pain in the left wrist, but there was no external injury. It the statement of Loon Karan that Jai Kishan struck a blow with his hockey stick on the wrist of his hand when he had caught hold of the hockey stick of Mahesh Chand alias Bhanna is taken to be true, then, there must have been some external injuries either on the left wrist or on his right wrist. Loon Karan has not ascribed any other injury to Jai Kishan petitioner. It will not be out of place to mention that the evidence of Deo Kishan so far as it relates to the part played by Jai Kishan in the assault is highly incredible because according to this version when Loon Karan fell down as a result of the injury inflicted on his right knee by Mahesh Chand alias Bhanna, Jai Kishan and Hari Kishan showered blows on his body. The above statement is not supported by the testimony of the injured himself. In his cross-examination Deo Kishan further stated that when Loon Karan fell down, Jai Kishan aimed a blow on him which the former tried to ward off by raising his hands and in the course of that effort the blow fell on his eye. Curiously enough, no injury was found on the either eye of Loon Karan by the Medical Officer. Curiously enough, no injury was found on the either eye of Loon Karan by the Medical Officer. Likewise the evidence of Ratan Kanwar is not believable because she professed to have seen Jai Kishan and Mahesh Chand alias Bhanna giving a good beating to Loon Karan with sticks, while Loon Karan injured merely stated that Jai Kishan had struck a blow on his wrist only. 6. Looked from another angle also no case is made out by the complainant against Jai Kishan petitioner beyond reasonable doubt. Dr. P. Dayal found an abrasion on the anterior aspect of the left knee of Loon Karan. This injury was attributed by Loon Karan to Mahesh Chand alias Bhanna petitioner. Injuries Nos. 2, 5 and 6 mentioned by the Doctor are mere complaints of pain in the left wrist, in the left thigh and in the abdomen on the left side, but there were no external injuries on these parts of the body of Loon Karan. Injury No. 3 is an abrasion on the anterior respect of the left leg at its middle. This injury was attributed to Hari Kishan who has been acquitted by the appellate court. Injury No. 4 is an abrasion over the right zygomatice region of the face. This injury was ascribed by Loon Karan to Mahesh Chand alias Bhanna. Hence, the prosecution story that Jai Kishan petitioner also participated in the beating administered to Loon Karan and caused multiple injuries to him appears to be entirely untrustworthy. Consequently. I am of the view that the appellate court was not justified in convicting Jai Kishan of an offence of voluntarily causing simple hurts to Loon Karan. 7. Now I turn to the evidence led by the prosecution against Mahesh Chand alias Bhanna. Loon Karan injured stated in his deposition that Mahesh Chand alias Bhanna at first struck a blow on his left knee with a stick as a result of which his knee was fractured. Mahesh Chand then inflicted another blow on his face below the right eye with his stick and, therefore, he inflicted 2 or 3 blows more which he warded off with his hands. Loon Karan further stated that he caught hold of the stick of Mahesh Chand but he left the stick of Mahesh Chand but he left the stick when Jai Kishan struck a blow on the wrist of his hand with his hockey. Loon Karan further stated that he caught hold of the stick of Mahesh Chand but he left the stick of Mahesh Chand but he left the stick when Jai Kishan struck a blow on the wrist of his hand with his hockey. He further claimed to have been beaten by Harikishan with a lathi as a result of which he sustained injuries on his leg and back As stated above, Dr. P. Dayal PW8, who examined the injuries of Loon Karan,clearly admitted that there were no external injuries on the left wrist, left thigh and abdomen on the left side or on the back of Loon Karan. He detected no injury on the face, below the right eye of Loon Karan also. As for other injury on the anterior aspect of left knee of Loon Karan, Dr P. Dayal clearly stated in his cross-examination that the possibility of sustaining fracture of patela i.e. knee cap as a result of blow by a thin lathi or blunt object was little, in re-examination he further made it clear that chances of sustaining such fracture, as was found on the left knee of Loon Karan, were little by a blow of hockey stick or such a blunt object. According to him, even if the strokes of hockey stick were repeated, chances of sustaining such a fracture were less. In his opinion fracture of the patella is usually possible when it strikes against a large surface because patella is a mobile bone. Consequently, I am of the view that the prosecution could not establish beyond reasonable doubt that fracture of patella of Loon Karans left knee was caused by a blow with a hockey stick. In the first information report, it was stated by Loon Karan injured that he was rescued by Jas Raj, Baijnath, Ded Kishan Vyas and some other persons. Curiously enough, Baijnath was not examined at the trial by the prosecution for reasons best known to it. Jas Raj no doubt appeared in the witness-box, but he turned hostile to the prosecution case and did not claim to have eye-witnessed the occurrence. Dev Kishan was examined by the prosecution at the trial. Curiously enough, Baijnath was not examined at the trial by the prosecution for reasons best known to it. Jas Raj no doubt appeared in the witness-box, but he turned hostile to the prosecution case and did not claim to have eye-witnessed the occurrence. Dev Kishan was examined by the prosecution at the trial. He is brother-in -law of Loon Karan and he appears to be a chance witness, because he admitted in his cross-examination that his house was far off from the place of occurrence and that on that day there was a holiday in the school in which he was a teacher. When further cross-examined lie admitted that on that day the other schools did not observe holiday. Again in his cross-examination, he stated that the first information report was written inside the police station by Baijnath and it was read over to Loon Karan alias Shanker in his presence while Loon Karan definitely admitted in his cross-examination that the first information report was not read by him and he signed it without reading it. He further stated that he did not know who had written the report and whether it was written in side the police station or out-side it. Harakchand P.W.7, who was in charge of the police station on that day, categorically denied that the report was written inside the police station. He claimed to have no knowledge as to where the report was written. He further stated that after the receipt of the report he made an endorsement marked E to F on it and read it over to Loon Karan which he admitted to be correct and put his signatures thereto. Loon Karan, on the other hand, stated in his cross -examination that he signed the endorsement while lying in the truck. On other hand, Hark Chand P.W.7, stated that Loon Karan signed the endorsement inside the police station. Consequently, upon careful review of the entire evidence I have come to the conclusion that it is highly doubtful whether the injury sustained by Loon Karan on his left knee was caused by Mahesh Chand alias Bhanna with a hockey stick or Loon Karan received it because of a fall on hard surface, because Dr. Consequently, upon careful review of the entire evidence I have come to the conclusion that it is highly doubtful whether the injury sustained by Loon Karan on his left knee was caused by Mahesh Chand alias Bhanna with a hockey stick or Loon Karan received it because of a fall on hard surface, because Dr. P. Dayal admitted in his cross-examination that possibilities of the sustaining fracture of patella as a result of blow with a lathi or a blunt object were little and that such an injury is possible when the left knee strikes against a large surface. The reason given out by the Doctor is that patella bone is mobile bone and the possibility of sustaining fracture of patella is Rare even if blow with hockey stick are repeatedly inflicted on it. Apart from this, there is legal impediment in sustaining the conviction of Mahesh Chand alias Bhanna petitioner u/s. 325, I.P.C The impediment is that Mahesh Chand alias Bhanna was tried for the charge u/s.325/149 I.P.C. along with Jaikishan and other co-accused and he was acquitted of this charge by the Additional Sessions Judge No. 2, Jodhpur, who recorded his conviction under section 325 I P.C. simpliciter without bringing to his notice that the allegations against him were that he had struck a blow on the left knee of Loon Karan and thereby caused fracture to his Patella bone. Mr. Bhim Raj purohit, learned counsel for the petitioners, vehemently contended before me that offence sunder sections 325 simpliciter and under section 1/325/149, are distinct and separate and where an accused is charge under section 325 read with sec. 149 and not also separately under section 325, I P.C. simpliciter, he-cannot be convicted under sec. 325, I.P.C. simpliciter if acquitted of the charge under section 325 read with section 149, I.P.C. In the instant case, as stated earlier, there was no direct charge against Mahesh Chand alias Bhanna for specific offence punishable under section 325, I.P.C. simpliciter. The absence of a specific charge under sec. 325, I.P.C. is an irregularity which has materially prejudiced Mahesh Chand alias Bhanna petitioner and so his conviction under section 325, I.P.C. simpliciter cannot be maintained. The absence of a specific charge under sec. 325, I.P.C. is an irregularity which has materially prejudiced Mahesh Chand alias Bhanna petitioner and so his conviction under section 325, I.P.C. simpliciter cannot be maintained. In this connection, reference may be made to an authority of the supreme Court Lakhan Mahto v. State of Bihar, AIR 1966 SC 1742 wherein their Lordships were pleased to make the following observations on this point:- "In this connection the High Court has taken the view that sec. 149, I.P.C. does not constitute a substantive offence and it was only an enabling section for imposition of vicarious liability and the conviction on vicarious liability can, therefore, be altered by the appellate court to conviction for direct liability, though there was an acquittal by the trial court of the direct liability of the offence. In our opinion, the view taken by the High Court is not correct. There is a legal distinction between the charge under section 302 IPC and a charge of constructive liability under S. 302/149, I.P.C." The Additional Sessions Judge No. 2, Jodhpur, acquitted all the co-accused including Mahesh Chand alias Bhanna of the offence punishable under section 375/149, I.P.C. as is evident from his following observations:- " tSlk fd mij ns[kk tk pqdk gS fd bl eqdnesa esa flQZ nks O;fDr;ksa }kjk ekjihV djuk fl) gqvk gSA blfy, /kkjk 147 dk vkjksi lekIr gks tkrk gS D;ksafd blds fy, vko';d gS fd ikap ;k ikap ls vf/kd O;fDr }kjk etek xSjdkuquh cuk;k tkdj lkekU; mn~ns'; dh iwfrZ esa cy dk iz;ksx fd;k tkosA blfy, leLr vfHk;qDrx.k dks /kkjk 147 ds vijk/k ls cjh fd;k tkrk gSA tc /kkjk 147 dk vijk/k ugha jgrk gS /kkjk 149 dk vijk/k Lor% gks tkrk gSA tSlsfd mij ns[kk tk pqdk gS fd /kkjk 34 ds vuqlkj vU; vfHk;qDrx.k dks ltk ugha nh tk ldrh gSA " In view of this legal aspect also the conviction and sentence of Mahesh Chand alias Bhanna under section 325, I.P.C. simpliciter are liable to be set aside. 8. The net result of above discussion is that I accept the revision-petit or filed by Jai Kishan and Mahesh Chand alias Bhanna, set aside their convictions and sentences under sections 323 and 325, I.P.C. respectively and acquit them to the aforesaid charges. Both the petitioners are on bail. They need not surrender to their bail bonds which are hereby cancelled.Revision Accepted. Both the petitioners are on bail. They need not surrender to their bail bonds which are hereby cancelled.Revision Accepted. *******