JUDGMENT 1. - An extremely important question has been raised in this appeal as to whether an opinion can be given, and evidence tendered, on the basis of a letter written by one Doctor to another, when the doctor writing the letter has himself neither examined the injured nor performed the operation ? 2. The accused appellant preferred-this appeal challenging the conviction and sentence passed against him by Sessions Judge, Sawaimadhopur, dated 29-8-86, who convicted him for offence under Section 307 I.P.C. sentenced to 7 years rigorous imprisonment and a fine of Rs. 1,000/-in default of payment of fine, appellant has been ordered to under go further imprisonment for one year. Out of the fine imposed Rs. 500/- have been ordered to be paid to injured Rameshchand. 3. Prosecution case started with the FIR, Ex. P. 4-A, lodged by one Shri Chotelal PW 2. Who stated in the report that at 0.32 hours he was informed by shri Kishan Petiwala PW 4 that Ramesh Petiwala was carrying a box belonging to driver, of Train 206 Down, to running shed, when he reached near the steam engioe metre guage yeard, Mansingh NAC and Rameshchand suddenly started fighting. Mansingh inflicted an injury on the stomach of the Rameshchand by some object and ran away. Rameshchand started bleeding and has become unconscious. On the receipt of this report by SHO, GRP, Sawaimadhopur, a case was registered for offence under section 120 and 121 Indian Railways Act read with Section -323 I.P.C. and investigation commenced. After completing the investigation accused was charged sheeted in the court of Railway Magistrate," Kota for offence under Section 326 and 307 I.P C. alongwith offences under Section 120 and 121 of the Indian Railways Act. They were committed to the court of Sessions Judge, Kota where the trial proceeded and number of witnesses were examined, then an objection was raised that jurisdiction to try the accused vested in Sessions Judge, Sawaimadhopur as the offence has been committed in that Sessions Judge, Sawaimadhopur for denovo trial. Prosecution examined 7 witnesses in support of its case and the accused none. Learned Sessions Judge convicted and sentenced the accused appellant as indicated above Learned counsel for the appellant first argued the case on merits that no offence is made out, but later on give it up and in my opinion rightly so, as there is cogent and reliable evidence no record. Learned Sessions Judge convicted and sentenced the accused appellant as indicated above Learned counsel for the appellant first argued the case on merits that no offence is made out, but later on give it up and in my opinion rightly so, as there is cogent and reliable evidence no record. There is the statement of injured Ramesh Chard PW 5 and Shri Kishan PW 4 to substantiate that the injuries inflicted on the person of the injured has been caused by none else then accused appellant. It is, however contended that in the facts and circumstances of the case, offence under Section 307 IPC cannot be held to be proved and offence would not travel beyond Section 308 IPC or maximum Section 326 IPC. It is submitted that Dr. P L. Bansal, PW 1 who had clinically examined the injured and who was functioning as the Medical Jurist in the General Hospital, Sawaimadhopur on the date of examination, i e., 30-8-83, had opined that only injury No. 3 was grevious while injuries 1,2,4 and 3 were simple in nature. He then stated in his statement that injury No. 1 was sufficient in the ordinary course of nature to have caused death on the basis of report given by Assistant Divisional Medical Officer (Surgeon), Kota on 17-9-98 that is 19 days after the occurrence. In cross examination Dr. Bansal admitted that it is not his opinion that the injury is sufficient in the ordinary course of nature to cause death, but what he has stated in the court is, and opinion based on Ex. P. 2 which is opinion of Rly. Doctor. Learned counsel has placed reliance no decision of this court in Bhanwarlal v. State of Rajasthan reported in RLW-1970, (Vol 21) page-68 . It is then submitted that PW 4 Shri Kishan at whose instance the report was lodged, has not come out with a story of infliction of injury by knife and Rameshchand has also stated that injury was caused on his person by some sharp object. He also does not speak about the use of knife. Besides this it is submitted that no motive has been attributed which could give rise to an occasion for accused appellant to have, out to an end to the life of Rameshchand. It is, therefore, submitted that the case either falls within the ambit of section 326 IPC or 308 IPC. Besides this it is submitted that no motive has been attributed which could give rise to an occasion for accused appellant to have, out to an end to the life of Rameshchand. It is, therefore, submitted that the case either falls within the ambit of section 326 IPC or 308 IPC. 4. Shri Sharma appearing on behalf of the State supported the judgment of learned Sessions Judge and submitted that multiple injuries on the person of the injured indicate that accused had an intention to cause death. 5. I have given my earnest consideration to the rival contentions and perused the record. It cannot be disputed that Assistant Divisional Medical Officer (Surgeon), Kota, has not been examined as a witness in the case but his letter has been subscribed by Dr. P.L. Bansal, PW 1 in his statement to opine that the injury was sufficient in the ordinary course of nature to have caused death. It is also not disputed that on the date of occurrence soon after the incident, injured was taken to General Hospital, Sawai Madhopur, where he was medically examined by Dr. P.L. Bansal, Medical Jurist on requisition by the police. He gave his injury report Ex. P. 1 wherein he found multiple injuries on the person of the injured Ramesh Chand. 6. Prosecutions own case is that soon after the incident the injured was taken to General Hospital, Sawai Madhopur where Dr. P.L. Bansal, PW 1 was working as Medical Jurist, Dr. Bansal Medically examined the injured probed into the injuries and prepared an injury report which is Ex. P. 1. In this injury report he gave details of the injuries. He did not mention that any of the injury individually or collectively was sufficient in the ordinary course of nature to have caused death. The Investigating officer, thereafter had written a letter to the doctor to find out his opinion about the nature of injury and it was thereupon that he replied that injury was dangerous to life. 7. The injured thereafter was referred to Railway Hospital, Kota and Dr Bansal also wanted to know the details about the intra abdominal injuries. Rameshchand was operated upon by Dr. K.C. Sikroria, DMO (Surgeon) and Dr. S.Y. Kalgronkar, ADMO on 1-10-82. 7. The injured thereafter was referred to Railway Hospital, Kota and Dr Bansal also wanted to know the details about the intra abdominal injuries. Rameshchand was operated upon by Dr. K.C. Sikroria, DMO (Surgeon) and Dr. S.Y. Kalgronkar, ADMO on 1-10-82. Thereafter, on 17th September, 1982 one Doctor whose name is not known, but whose designation was Assistant Divisional Medical Officer (Surgeon), Kota sent a letter to ADMO, Sawai Madhopur. This letter Ex. P 2 was in turn marked to Medical Jurist who had prepared Ex. P I. Thereafter on 19-12-82 head constable GRP, Sawai Madhopur addressed a letter to Dr. Bansal, on behalf of SHO, GRP and asked him that he has mentioned injury No. 3 in his report as a serious injury, but he should inform whether the accused could die as a result of the said injury or not. Dr. Bansal on this letter made an endorsement that injury No. 3 was dangerous to life. Thus, there are two opinions of Dr. Bansal on record, on showing that injury No. 1 is grevious and another that the injury is dangerous to life Ex P 2 only gives the data and not word was mentioned therein that the injuries were grevious or sufficient in the ordinary course of nature to have caused death Section 32) IPC defines the grevious hurt and it has been mentioned as one of class of injury that, any hurt which endangerous" life is grevious hurt meaning thereby that injury dangerous to life would also fall within the definition of grievous injury but cannot be equated with an injury which can be called sufficient in the ordinary course of nature to have caused death. Dr. Bansal, PW 1 in his statement said that "as per the report of Assistant Divisional Medical Officer (Surgeon), Kota dated 17-9-82 the injury No. 3 of Ex. P 1 was sufficient to cause death in the ordinary course of nature". His this statement is not based on his observation or any other document. I could not find any such remark either in the report Ex. P 2 or Ex. P 1. Dr. Bansal was confronted with this situation in cross-examination and he admitted that, "I have not given in writing the opinion that 1 have said just now regarding the injury No. 3, i.e. sufficient to cause death in the ordinary course of nature on Ex. P 2. P 2 or Ex. P 1. Dr. Bansal was confronted with this situation in cross-examination and he admitted that, "I have not given in writing the opinion that 1 have said just now regarding the injury No. 3, i.e. sufficient to cause death in the ordinary course of nature on Ex. P 2. After receiving the report of Railway surgeon Ex. P 2, I send the original report and gave the opinion that the injury No. 3 was dangerous to life. This report is Ex P 3 A to B is the endorsement on Ex. P 3. This admission of witness clearly leads or irresistible conclusion that Dr. Bansal read document Ex. A I. Ex. P 2 and Ex. P 3 in between fines in the court when examined as witness. It appears that he might have said so as he was to depose by the prosecutor conducting the case else there is no foundation for making such a statement on basis of Ex. P I, Ex. P 2 or Ex. P 3. Besides this there is one more aspect of the matter that even if there would have been a narration in Ex. P 2 the same could not have been made the basis of statement of Dr. Bansal as subscribing to the opinion of some one else is not an admissible piece of evidence in law such as in the instant case. It was not even the opinion of the ADMO who sent the report Ex. P 2, but he too only conveyed what the operating surgeon had did. Thus, there was neither an occasion for Dr. Bansal to have stated so in the court nor there was a legal foundation for it. In Bhanwarlals case, mentioned above, his Lordships Hon'ble Lehar Singh Mehta, J. as then he was held while disappearing the manner of conduct of a case by the Addl. Munsiff Magistrate No. 2, Kota that,He had not cared to examine in detail Dr. R.K. Gupta and simply got the certificate exhibited. Under the law it the deposition of medical or expert witness that can be taken in evidence. The certificates are extra judicial matters and cannot be received in evidence. They can be used by the witnesses' concerned as in aid to their memory." 8. In the instant case even the extra judicial matters are not on record. The deposition of Dr. The certificates are extra judicial matters and cannot be received in evidence. They can be used by the witnesses' concerned as in aid to their memory." 8. In the instant case even the extra judicial matters are not on record. The deposition of Dr. Bansal is based on no material on record which he might have used as an aid to his memory. In fact there is no document which could have been referred to and exhibited. Had ADMO or DMO performing the operation been examined and they might have said so on the basis of operation notes or even if Dr, Bansal would have based his opinion on the basis of date and material placed before him, conveying some information that cannot be read in evidence but by no stretch of imagination, letter Ex. P 2 can be considered by itself as peace of substantial evidence or can be made basis of evidence. 9. It is necessary in my opinion that the Doctor who testify to the nature of injuries must have other examined the injured himself or should have all the data before him for independently forming an opinion furnished to him in original and that too by a person who has examined the injured or has performed operation and prepared the operational notes. The evidence tendered by one Doctor on the basis of a simple letter conveying some facts cannot be held legally tendered evidence. It behoves the learned Public Prosecutor also not to lead such an evidence to mislead the Court I, therefore, have no hesitation in holding that prosecution has failed to prove that the injuries sustained by Rameshchand were I sufficient to cause death in the ordinary course of nature. It was however, an injury which has dangerous to life and, therefore a grevious hurt. 10. Coming to the second point prosecution has miserably failed to bring out a nexus between the act of the accused and receiving the injury by the injured as it has not been disclosed as to what was the motive and what was the nature of instrument used. PW 4 Shri Kishan only stated that Rameshchand and Kishanchand were going together and suddenly Rameshchand shouted that injury has been caused to him. PW 4 Shri Kishan only stated that Rameshchand and Kishanchand were going together and suddenly Rameshchand shouted that injury has been caused to him. He further stated that accused had once come alongwith one Farnandis in running room after taking drinks, which was objected to by Rameshchand but Ramesh Chard PW 5 does not come out with any such story. He on the contrary stated that while they were going together accused had told him that there is no ill will in between them and he said Yes". They had nothing wrong in between. He also denied the suggestion that there was any previous enmity between the two. Therefore, it is difficult to understand as to what was the proximate or immediate cause which might have given rise to an occasion for the accused to have inflicted injuries on the person of the injured, Rameshchand. Their Lordships of the Supreme Court in Vidhyha Singh v. State of Madhya Pradesh reported in AIR 1971, page 1857 , have held that:- In assessing the value to be attached to the evidence of the type with which we are concerned, the courts have to reply more on human probabilities than on the assertions of the witnesses." When there is neither any ill will nor previous enmity nor any other cause disclosed, it is difficult to conceive of that without any rhyme or reason one would take up some arm and inflict its blow on another person who is friendly and going together. This clearly indicates that the witnesses are suppressing the truth and do not want to come out with this part of the story. Besides this, it has also not been said that accused was carrying any knife with him or he brought out from his pocket by which he might have caused injury. On the contrary the FIR is silent about the weapon of offence and even Rameshchand in his statement in the court has stated that it was something sharp and he appears to be correct because the police has also recovered broken pieces of a bottle from the place of occurrence Ex. P 7. therefore, this probability also cannot be ruled out that injury might have been caused by the broken bottle. The incident was not to my mind pre-arranged and pre-meditated. P 7. therefore, this probability also cannot be ruled out that injury might have been caused by the broken bottle. The incident was not to my mind pre-arranged and pre-meditated. It is spontanuous that they might have picked up quarrel and the accused suddenly took up a bottle, and gave injuries. Still whatever may be weapon of offence it cannot be denied that injured sustained and as many as 5 injuries by sharp edged weapon and the one of the injuries was grievous in nature, it would therefore be safe to alter the conviction of the accused from offence one under Section 307 IPC to section 326 IPC. Now remains the question about the sentence. Accused is said to be in Jail since 30th August, 1982, that is for more than four and half years. In view of the circumstance that the offence has been altered from Section 307 IPC to Section 326 IPC, I deem it proper to reduce the substantive sentence of imprisonment from 7 years to the period already undergone. Sentence of fine is reduced to Rs. 500/-. 11. As a result of aforesaid discussion, appeal is partly allowed, conviction of the accused appellant is altered from one under section 307 IPC to Section 326 IPC and his substantive sentence of imprisonment is reduced from 7 years rigorous imprisonment to the period already undergone. The sentence of fine is reduced from Rs 1,000/-to Rs 500/- which amount on recovery shall be pud to the complainant-injured, Ramesh Chand In case the accused fails to pay the fine, the same shall be recoverable from him in accordance with law. The accused is in Jail and he shall be released forthwith if not required in any other case. Two months time is granted for depositing the fine.Appeal partly allowed. *******