(Cr.A.No.669/2022) 2025:CGHC:16996 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 669 of 2022 Premprasad Gupta, S/o Jugal Kishore Gupta, Aged about 46 years, R/o Village Kidda, P.S. Chhal, District Raigarh, Chhattisgarh. ... Appellant versus State of Chhattisgarh, Through P.S. Chhal, District Raigarh, Chhattisgarh. ... Respondent For Appellant : Mr. Sanjay Agrawal and Ms. Vidhi Mathani, Advocates. For Respondent/State : Mr. Rahul Tamaskar, Government Advocate and Mr. Pankaj Singh, Panel Lawyer. Hon’ble Shri Justice Sanjay K. Agrawal Judgment on Board 11/04/2025 1. The appellant herein stands convicted for offences under Sections 325 & 506 Part-I of the IPC and 3(2)(va) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, ‘the Act of 1989’) by the Special Judge under the Act of 1989, Raigarh in Special Criminal Case under the Atrocities Act No.67/2019 vide judgment of conviction and order of sentence dated 2-4-2022, and sentenced to undergo rigorous imprisonment for one year & pay a fine SISTA SOMAYAJULU Digitally signed by SISTA SOMAYAJULU Date: 2025.04.16 14:24:32 +0530 (Cr.A.No.669/2022) of 1,000/-, in default of payment of fine to further undergo ₹ additional rigorous imprisonment for ten days; rigorous imprisonment for three months; and rigorous imprisonment for one year & pay a fine of 1,000/-, in default of payment of fine to further undergo ₹ additional rigorous imprisonment for ten days, respectively, with a direction that all the sentences shall run concurrently. 2. Case of the prosecution, in short, is that on 12-9-2019 at 9 p.m. the appellant abused victim/complainant Chhabilal (PW-1) in filthy language and threatened his wife Neerabai Rathiya (PW-4) to commit her murder and also caused grievous hurt to complainant Chhabilal (PW-1) knowing fully well that they are members of Scheduled Tribe and thereby committed the offence. Chhabilal (PW-1) was medically examined by Dr. Surendra Kumar Paikra (PW-6) vide Ex.P-9 and he was advised for x-ray. He was subjected to x-ray and as per the x-ray report, he suffered fracture of lower third of left ulna bone, but the radiologist who prepared the x-ray of the complainant was not examined and on the basis of the report submitted by Dr. Surendra Kumar Paikra (PW-6), the appellant was convicted for offence under Sections 325 & 506 Part-I of the IPC and 3(2)(va) of the Act of 1989 holding that fracture of lower third of left ulna bone was found. 3. Mr. Sanjay Agrawal, learned counsel appearing for the appellant, submits that the Radiologist / Lab Technician, who conducted x-ray of the victim / complainant Chhabilal (PW-1), has not been examined (Cr.A.No.669/2022) and merely on the basis of the x-ray plate which does not bear name & address of victim Chhabilal (PW-1), report has been prepared which has been acted upon. He would further submit that the Radiologist / the person who conducted x-ray ought to have been examined to hold that the victim / complainant has suffered fracture within the meaning of Section 320 Seventhly of the IPC so as to convict the appellant for offence under Section 325 of the IPC and as such, the appellant is entitled for acquittal under Sections 325 & 506 Part-I of the IPC and 3(2)(va) of the Act of 1989. 4. Mr. Rahul Tamaskar, learned State counsel, would oppose the appeal and support the judgment of the trial Court and submit that the prosecution has been able to bring home the offence against the appellant beyond reasonable doubt and the appellant has rightly been convicted for the offences under Sections 325 & 506 Part-I of the IPC and 3(2)(va) of the Act of 1989, therefore, the appeal deserves to be dismissed. 5. I have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record carefully and thoroughly as well. 6. The question is, whether the appellant has rightly been convicted for offence under Section 325 of the IPC i.e. punishment for voluntarily causing grievous hurt. Grievous hurt has been defined in Section 320 (Cr.A.No.669/2022) of the IPC. Clause Seventhly of Section 320 of the IPC states as under: - “320. Grievous hurt.—The following kinds of hurt only are designated as ‘grievous”:— First to Sixthly.— xxx xxx xxx Seventhly.—Fracture or dislocation of a bone or tooth. Eighthly.— xxx xxx xxx” 7. The trial Court has recorded a finding that victim / complainant Chhabilal (PW-1) has suffered fracture of left wrist. He was subjected to x-ray and x-ray report has been exhibited as Ex.P-10. Along with the x-ray, there is a report Ex.P-10 disclosing fracture of lower third of left ulna bone. According to Dr. Surendra Kumar Paikra (PW-6), he has prepared the report Ex.P-10 after seeing the x-ray plate. He has also stated that the Radiologist/Lab Technician, who has conducted x- ray of the victim, did not send any report to him. As such, the Radiologist/Lab Technician, who has conducted x-ray has not been examined, in the present case, whereas in order to prove that the victim has suffered fracture, the Radiologist or the person who has conducted x-ray ought to have been examined and examination of Radiologist/Lab Technician, who has conducted x-ray disclosing fracture of victim is absolutely necessary to prove the fact of fracture having been suffered by the complainant (PW-1), as it is not the case of the prosecution that the Radiologist / Lab Technician, who has done the x-ray, is either dead / not available / traceable, more particularly (Cr.A.No.669/2022) the x-ray plate attached to Ex.P-10 does not mention name & address of the victim showing that the x-ray plate is of victim Chhabilal (PW- 1). Therefore, the report Ex.P-10 is inadmissible in evidence. 8. The reference, if any can be made to a judgment titled as Santoo v. State1 wherein it was held that examination of Radiologist / Technician performing x-ray is necessary by observing as under: - “An x-ray report of the injury caused to the complainant was prepared by ‘A’. Prosecution did not produce ‘A’ before the Court. It was not suggested that ‘A’ was either dead or not available. A supplementary report was prepared by ‘B’ on the basis of the x-ray report prepared by ‘A’. It was held that ‘A’s report was inadmissible in evidence. So also the evidence of ‘B’ based on his supplementary report prepared on the basis of the x- ray report of ‘A’ was also inadmissible in evidence.” 9. In order to answer a grievous hurt, the hurt must answer any of the eight clauses enumerated in Section 320 of the IPC and in this case, it must be Clause Seventhly, as the victim is alleged to have suffered fracture of lower third of left ulna bone as shown in the x-ray report Ex.P-10, which has not been proved by examining the Radiologist/ Lab Technician who has conducted x-ray of victim Chhabilal (PW-1) in absence of which the report Ex.P-10 showing that it is fracture of lower third of left ulna bone prepared on the basis of x-ray is held to be inadmissible in evidence. As such, the appellant is entitled for acquittal under Section 325 of the IPC and he is accordingly acquitted of the charge under Section 325 of the IPC, instead thereof, he is convicted under Section 323 of the IPC and sentenced to the period 1 1977 Crl.L.J. (Notes) 2 (Cr.A.No.669/2022) already undergone by him, as the offence under Section 323 of the IPC is specified offence in the Schedule appended to the Act of 1989. 10. Furthermore, the appellant has also been convicted under Section 506 Part-I of the IPC on the ground that the appellant has criminally intimidated the victim within the meaning of Section 503 of the IPC. On a careful reading of the statements of victim/complainant Chhabilal (PW-1), his wife Neerabai (PW-4) & Gourilal Rathiya (PW- 7), it cannot be said that the appellant has criminally intimated any of these witnesses and it cannot also be said that he has threatened Chhabilal (PW-1), Neerabai (PW-4) & Gourilal Rathiya (PW-7) with any injury to their persons, reputation or property and that threat was made with intent to clause alarm to them. As such, the appellant is entitled for acquittal also under Section 506 Part-I of the IPC. 11. In that view of the matter, conviction and sentences imposed upon the appellant under Section 506 Part-I of the IPC are liable to be set aside and they are hereby set aside and he is acquitted of the said charge. Further, conviction of the appellant under Section 325 of the IPC is also set aside, however, instead thereof, he is convicted under Section 323 of the IPC and sentenced to the period already undergone by him. Similarly, conviction of the appellant under Section 3(2)(va) of the Act of 1989 is maintained, however, he is sentenced to the period already undergone by him. Fine sentences imposed by the trial Court upon the appellant shall remain intact. He is already on bail. He need (Cr.A.No.669/2022) not surrender. However, his bail bonds shall remain in force for a period of six months in view of the provision contained in Section 437A of the CrPC. 12. The criminal appeal stands partly allowed to the extent indicated herein-above. Sd/- (Sanjay K. Agrawal) JUDGE Soma