JUDGMENT : GURMIT RAM, J. CRM-677 of 2016 1. This criminal miscellaneous application has been filed by applicant-Bhanu (complainant) for the grant of leave to file appeal against the judgment and order of sentence dated 24.8.2015 passed by the learned Additional Sessions Judge, Rewari in criminal case bearing FIR No.341 dated 11.9.2014, u/Ss 324/307 read with Section 34 of the Indian Penal Code ('IPC' – for short) and Section 25 of the Arms Act, Police Station Model Town, Rewari vide which accused Tinku (respondent No.2 - herein) was acquitted of all the charges whereas his co-accused Badan Singh @ Lefti (respondent No.1 - herein) was held guilty for the offence punishable u/S 326, IPC and convicted thereunder and acquitted of remaining charges vide this judgment. 2. The prosecution version, in brief, as presented before the learned trial Court was that on 11.9.2014, a telephonic message was received from Police Post, General Hospital, Rewari at Police Post, Sector- 3, Rewari, Police Station Model Town, Rewari regarding the admission of injured Bhanu son of Sri Kishan, resident of New Aadarsh Nagar, Rewari into the Trauma Centre of the said hospital having been injured in some fight. Upon this, ASI Sanjay Kumar, Incharge of this police post along with another police official reached at Trauma Centre of this hospital and obtained medico-legal report of injured. Further, he also obtained opinion of the doctor that injured is fit to make the statement. Thereafter, he recorded the statement Ex.PN of injured/complainant – Bhanu which was as under : “That he is employed as a Teacher in Holy Child School. He had advanced a loan of Rs.600/- to one Deepak @ Kalu, resident of Hans Nagar, Rewari. Today at about 5:15 p.m., he went to the house of said Deepak for demanding his money, who anyhow was not found present at his house. When he was standing nearby his motorcycle, then there came, at the same very moment, Lefti @ Badan Singh son of Azad Singh, resident of Hans Nagar, Rewari along with one boy whose name he does not know. They had come from his back side. They at once started beating him. Accused Lefti gave him knife blows which hit in his stomach and left thigh. On receipt of these injuries, he fell down, but even then the said assailants continued to beat him. They had come from his back side. They at once started beating him. Accused Lefti gave him knife blows which hit in his stomach and left thigh. On receipt of these injuries, he fell down, but even then the said assailants continued to beat him. On finding an opportunity, when he started running then both the said assailants fired shots upon him to kill him, but he escaped. On hearing these gun shot fires, many people gathered at the spot. Then both the assailants fled away from the spot along with their motorcycle. Injured was got admitted for his treatment at General Hospital, Rewari. Both the said assailants had assaulted him with the intention to kill him. Request was made to take legal action against the said assailants.” 3. After recording the above statement of complainant, it was read over to him which he (complainant) signed in English after admitting it to be correct. Upon this statement, ASI Sanjay Kumar made his endorsement Ex.PP, on the basis of which, the FIR (Ex.PB) was recorded. Then he (ASI Sanjay Kumar, Investigating Officer of this case) visited the spot of occurrence and prepared its rough site-plan. Further, he also recorded the statements of witnesses. Accused Badan Singh @ Lefti was arrested in this case on 19.9.2014. He suffered disclosure statement during interrogation regarding the involvement of his co-accused Tinku in the alleged occurrence as well as of the concealment of one knife, country-made pistol and cartridge in his residential house at village Jaitpur and got recovered these articles in pursuance of his disclosure statement. He also disclosed that the motorcycle used in the commission of offence was of one Ajit son of Jai Singh, resident of village Jaitpur. His co-accused Tinku was arrested in this case on 5.10.2014. The opinion of the doctor with regard to nature of injuries was sought who gave his opinion with regard to same as 'dangerous to life'. On completion of investigation, challan against the accused was presented in the Court of learned Illaqa Magistrate who after making compliance of the provisions of Section 207, Cr.P.C., committed this case to the Court of learned Sessions Judge, Rewari for trial. 4. Finding a prima facie case u/Ss 324 and 307 read with Section 34 of the IPC against both the accused, they were charge-sheeted accordingly. 4. Finding a prima facie case u/Ss 324 and 307 read with Section 34 of the IPC against both the accused, they were charge-sheeted accordingly. Further accused Badan Singh alias Lefti was also chargesheeted for the offence punishable u/S 25 of the Arms Act. They pleaded not guilty to said charges and claimed trial. 5. The prosecution in order to establish its case against the accused (respondents No.1 and 2 herein) examined seventeen witnesses in total, besides tendering the report of FSL Ex.PE. 6. Then on completion of the prosecution evidence, the accused were duly examined as required u/S 313 of Cr.P.C. Entire incriminating evidence as brought on the file during trial of the case against them was put to them, which they denied in toto and pleaded their innocence and false implication in this case. 7. In defence, accused also examined two witnesses. 8. The learned trial Court after hearing the learned counsel for both parties and going through the record as well acquitted accused Tinku (respondent No.2 – herein) of all the charges, whereas his co-accused Badan Singh @ Lefti (respondent No.1 – herein) was held guilty for the offence punishable u/S 326 of the IPC only and sentenced him as under : under Section 326, IPC To undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.5,000/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of six months. 9. The applicant (complainant) being not satisfied with the impugned judgment and order of sentence has filed the instant criminal miscellaneous for the grant of leave to file appeal with the prayer to convict both the respondents No.1 and 2 for the offences punishable u/S 307 read with Section 34 of the IPC, u/S 25 of the Arms Act and also for the grant of compensation. Record of the learned trial Court was also requisitioned. 10. We have heard learned counsel for the applicant and also perused the record with his able assistance. 11. Learned counsel for the applicant has contended that as per the report of doctor, injury No.1 found on the person of injured was 'dangerous to life' which as such was sufficient to establish the offence u/S 307 of the IPC. Then it is also his contention that PW8 – Dr. 11. Learned counsel for the applicant has contended that as per the report of doctor, injury No.1 found on the person of injured was 'dangerous to life' which as such was sufficient to establish the offence u/S 307 of the IPC. Then it is also his contention that PW8 – Dr. Gajender Yadav in his cross-examination stated that injuries No.1 and 2 were caused by sharp edged weapon, whereas injury No.3 was caused by blunt weapon. Herein he has also submitted that both the accused (respondents No.1 and 2 - herein) fired shots from their respective weapons towards the complainant with a clear intention to kill him. Then .315 bore pistol which was allegedly used in the commission of the alleged crime was got recovered by accused Badan Singh @ Lefti (respondent No.1 - herein) as per his disclosure statement which fact could not be ignored at any cost in order to hold both the accused (respondent Nos.1 and 2 - herein) guilty for the offences punishable under Section 307, IPC, as well as u/S 25 of the Arms Act. Then complainant/injured Bhanu as PW12 stated without any ambiguity about the involvement of both the accused (respondent No.1 and 2 - herein) in the alleged occurrence, but the learned trial Court had wrongly disbelieved his deposition qua accused Tinku (respondent No.2 - herein) and wrongly acquitted him vide the impugned judgment. Further he prayed for the grant of leave to file appeal and to decide this appeal on merits. 12. In the light of prayer made in this criminal miscellaneous firstly we are to see as to whether there is sufficient confidence inspiring evidence on the record to establish the involvement of accused Tinku (respondent No.2 – herein) in the alleged occurrence. In this regard, statement of complainant/injured – Bhanu as PW12 is held to be quite relevant. His statement was to the effect that on 11.9.2014, he went to the house of one Deepak Saini in the evening at about 5:15 p.m. to get back his money i.e. Rs.600/-which he had advanced to him (Deepak Saini) as loan. He was not found present at his house. When he returned back, then all of sudden accused Lefti @ Badan Singh (respondent No.1 – herein) along with one unknown person came there on a motorcycle. He was not found present at his house. When he returned back, then all of sudden accused Lefti @ Badan Singh (respondent No.1 – herein) along with one unknown person came there on a motorcycle. One of them caught hold of him, whereas accused Lefti (respondent No.1 – herein) gave him knife blows on his right thigh and stomach. On receipt of these injuries, he fell down but the above-said assailants further gave him kick and fist blows. When he tried to run away, then both the said assailants fired shots upon him with the intention to kill him. Complainant/injured – Bhanu did not disclose the identity of the second assailant who was allegedly accompanying accused Lefti @ Badan Singh (respondent No.1 – herein) in his statement Ex.PN dated 11.9.2014 made before the police after the alleged occurrence. Then in the Court also as PW12, he failed to tell about the identity of the second assailant who was allegedly accompanying accused Lefti @ Badan Singh (respondent No.1- herein) at the time of alleged occurrence. The alleged occurrence took place as per prosecution case on 11.9.2014. Statement of the complainant/injured – Bhanu as PW12 was recorded in the Court on 16.2.2015. So by this time, he was having sufficient time in order to find out about the identity of the second assailant allegedly accompanying accused Lefti @ Badan Singh (respondent No.1 – herein) at the time of alleged occurrence. Then no test identification parade was got done from the complainant by the prosecution during investigation of the case at any stage in order to find out the identity of the said second assailant. Then it was also the case of prosecution that the said second assailant i.e. accused Tinku (now respondent No.2) was arrested in this case on 5.10.2014, who during interrogation suffered disclosure statement Ex.PA. On the basis of his disclosure statement, neither the recovery of any incriminating material was effected nor any new fact was discovered concerning the alleged occurrence. Then no motive of any kind was attributed against this respondent No.2 qua the alleged occurrence. So as such the acquittal of accused Tinku (respondent No.2 – herein) by the learned trial Court vide the impugned judgment is held to be justified. 13. Then no motive of any kind was attributed against this respondent No.2 qua the alleged occurrence. So as such the acquittal of accused Tinku (respondent No.2 – herein) by the learned trial Court vide the impugned judgment is held to be justified. 13. The second material question which is to be seen in this case is as to whether the prosecution has been enabled to bring on the record sufficient reliable evidence to make out a case under Section 307 of the IPC against the accused (respondents No.1 and 2 – herein). Qua this fact, the statement of PW12 has already been discussed in para No.12 of this judgment. The medical evidence in this regard which is available on the file is as under: PW8 Dr. Gajender Yadav, who conducted medico-legal examination of injured Bhanu Aggarwal (complainant) on 11.9.2014 tendered his duly sworn affidavit Ex.PK as a part of his statement. During examination, he found three injuries on the person of injured which were as under : (a) Incised wound of 0.5 x 2 cms present on right eilliac area of abdomen, with clean cut, everted margin, bleeding present. Adv. Surgeon opinion. (b) Incised wound of 0.5 x 2 cms present on lateral side of right thigh in upper third with clean cut everted margin. Adv. Surgeon opinion & X-ray. (c) Swelling & tenderness present on nose. No external sign of injury, Adv. X-ray and ENT opinion. Then he also proved the MLR of this injured as Ex.PK/1 and the opinion given by him as Ex.PK/2 to the effect that this patient was fit to make statement. In his cross-examination, he stated that injuries No.1 and 2 were caused by sharp edged weapon, whereas injury No.3 was caused by blunt weapon. PW6 Dr. Ramesh Yadav who examined and operated upon patient Bhanu (complainant) in this case on 12.9.2014 tendered in his statement his duly sworn affidavit Ex.PF as a part of his statement. As per his affidavit, on the examination of this injured, the following two injuries were found on his person: (a) One stab wound was present on the abdomen just on the right side of umblicus of size 3 x 2 cm and going into the peritoneal cavity. (b) Another stab wound on right side of thigh of size 3 x 2 cm and muscle deep. (b) Another stab wound on right side of thigh of size 3 x 2 cm and muscle deep. Then he gave his opinion that nature of injury No.1 was 'dangerous to life' and caused by sharp edged weapon. Then in his cross-examination, he made statement contrary to it wherein he deposed that he did not give opinion to the police that injury No.1 was 'dangerous to life'. PW4 Dr. Deepak Bangiya conducted X-ray examination of abdomen of injured Bhanu Partap. He also tendered his duly sworn affidavit Ex.PC as a part of his statement. Further, he also proved the X-ray report Ex.PC/1 and X-ray film Ex.PC/2. He also conducted CT Scan of entire abdomen of this patient and submitted a detailed report Ex.PC/3 along with CT films Ex.PC/4 to Ex.PC/6. Then in his cross-examination, it came that on the basis of CT scan report Ex.PC/3, he cannot say as to whether injury No.1 was dangerous to life or not. Then as per the prosecution, opinion with regard to nature of injury No.1 being 'dangerous to life' was given by Dr. Bhanupriya who at the relevant time was posted as Medical Officer at General Hospital, Rewari. The prosecution could not examine her and instead of her, the prosecution examined her father Dr. Narender Yadav as PW17. It is in his statement that his daughter Dr. Bhanupriya was posted as a Medical Officer at General Hospital, Rewari on 25.10.2014. She gave opinion Ex.PU on the said date, which bears her signatures, to the effect that injury No.1 was 'dangerous to life' whereas injury No.2 was simple in nature, but in his cross-examination, he stated that this opinion Ex.PU was not given by her daughter in his presence. He never medically treated injured of this case. Then it also came in his statement that his daughter Dr. Bhanupriya at present is settled at Virat Nagar, Nepal after her marriage. In this case, the above-said opinion Ex.PU was most material in order to hold that this injury No.1 on the person of injured was 'dangerous to life'. The prosecution as above-said had failed to examine her (Dr. Bhanu Priya) as a witness in order to prove her said opinion Ex.PU. So for want of this material piece of evidence, it has not been legally proved on the record. The prosecution as above-said had failed to examine her (Dr. Bhanu Priya) as a witness in order to prove her said opinion Ex.PU. So for want of this material piece of evidence, it has not been legally proved on the record. So it is difficult to hold that the learned trial Court has acquitted both the respondents herein u/S 307 of the IPC wrongly. Herein we also find it essential to discuss the provisions of Clause Eighth of Section 320 of the IPC which reads as under: Eighthly Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits. This section has defined the concept of grievous hurt in detail. As per the provision of Clause Eighth of this section, any hurt which 'endangers life or which has caused severe bodily pain to victim during the span of 20 days or rendered him unable to follow his routine pursuits' falls under the scope of this clause. 14. So as such the learned trial Court was justified in acquitting accused Lefti @ Badan Singh (respondent No.1 – herein) under Section 307 of the IPC. 15. Then the pistol .315” marked as W/1, which was allegedly got recovered by accused Lefti @ Badan Singh (respondent No.1) was mechanically tested by the FSL, Madhuban, Karnal, Haryana, which submitted its report in this regard Ex.PE. In the result clause, it was mentioned that scientifically the time of its last firing cannot be given. Then no definite opinion could be formed regarding the linkage of .315” fired cartridge case marked as C/1 with respect to country-made pistol marked as W/1 as its percussion cap was found to be missing. 16. Then as per the provisions of the proviso attached to Section 372 of Cr.P.C., an appeal lies where the learned trial Court has granted inadequate compensation, but not in a case in which no compensation has been granted. In the case in hand, admittedly no compensation has been granted by the learned trial Court to the injured/complainant vide the impugned judgment. 17. In the light of above discussion, no ground for the grant of leave to appeal is made out. So this criminal miscellaneous stands declined. In the case in hand, admittedly no compensation has been granted by the learned trial Court to the injured/complainant vide the impugned judgment. 17. In the light of above discussion, no ground for the grant of leave to appeal is made out. So this criminal miscellaneous stands declined. CRA-AD-75 of 2015 This appeal which was numbered as above before filing of the instant criminal miscellaneous also stands declined and disposed of accordingly.