L.S. Mehta, J.
1. The respondent Mathura Lal has been convicted under Section 323, I P.C, and sentenced to pay a fine of Rs. 125/- by the Munsif Magistrate, Chhoti Sadari. The State of Rajasthan has filed this appeal against that judgment. The brief facts of this case are that on February 19, 1968, at 8 P.M., Narain P.W. 1 was sitting in the house of Gokul. The accused Mathura Lai came there. He was armed with an axe. He took Gokul with him under the pretext that he would like to discuss something with him. Narayan and Mangi Lai P.W. 8, followed Gokul and the accused Mathura Lal Gokul was asked to go up to the village temple and when he was climbing the steps, the accused Mathura Lai gave an axe blow on the back side of his head. The victim fell down. Mangi Lal and Narayan rushed to the place where Gokul was lying They lifted him up. They saw on his head, an injury, which was bleeding. Gokul was taken to tha Government dispensary, Chhoti Sadari, to which he was admitted Later on Narayan went to the police station, Chhoti Sadari, and submitted first information report. The police registered a case under Section 326, I.P.C., and alter investigation put up a challan in the Court of learned Munsif Magistrate, Chhoti Sadari. Before the trial Court the accused pleaded not guilty. In support of its case the prosecution examined 9 witnesses. In this statement, recorded under Section 342, Cr.P.C. the accused denied the commission of the crime. He further said that he was sitting in the temple and he told Gokul that if, according to him, he owed nothing to him, he should open the door of the temple. While going to the temple Gokul slipped on the steps and fell thereon as a result of which he sustained some injuries. He produced 3 witnesses in his defence. Eventually the trial Court convicted and sentenced the accused, as stated above.
2. Aggrieved by the above judgment, the State has taken this appeal. The contention of learned Counsel for the appellant is that the Court below went wrong in convicting the accused for causing simple hurts only. The medical evidence produced in the case shows that the injury No. l was grievous in nature and was caused by a sharp edged weapon. The accused, therefore, should have been convicted under Section 326, I.P.C. or in the alternative under Section 324, I.P.C. and not under Section 323, I.P.C. simpliciter. Learned Counsel for the respondent submitted that there is no medical evidence in this case. Medical certificate Ex. P. 6 is alleged to have been given by Doctor Naveen Chand Upadhaya Incharge Primary Health Centre, Chhoti Sadari. The Doctor died in the month of November, 1968. He, therefore, could not be examined before the trial Court and in absence of such examination the certificate could not be treated as a substantive piece of evidence.
3. A perusal of Ex. P6 shows that Gokul received the following injuries:
(1) Incised wound 1' X ' X ' on the right side of the scalp parietal region. It was grievous in nature and was caused by a sharp edged weapon.
(2) Bruise 3' long Horizontal on right scapula. It was simple in nature and was caused by a blunt object.
Because of the death of Dr. Naveen Chand Upadhaya the prosecution examined Compounder Motilal P.W. 6, who had served under Doctor Naveen Chand in the Chhoti Sadari dispensary. He testifies that the Doctor Naveen Chand died in November, 1068. The medical certificate Ex. P. 6 is in the hand writing of deceased. It also bears his signature. Learned Munsif Magistrate, Chhoti Sadari, dealt with this aspect of the matter in the penultimate para of his judgment. His reasons are quoted below:
Since the Doctor is dead he could not be examined or cross-examined it is, therefore, not proper to hold that injury No. l was grievous and was caused by a sharp edged weapon. Both the injuries are simple and were caused by blunt object.
The passage avers that the Munsif-Magistrate had no clear conception of law-It is, therefore, necessary to clarify the true legal position. The injury report Ex. P 6, given by Dr. Naveen Chand, is a previous statement, based on the examination of the injured. It is not a substantive piece of evidence. The oral deposition of the Doctor before the trial Court is alone substantive evidence. The medical certificate could be used only for the purpose of corroboration under Section 157 or for refreshing the memory, as laid down in Section 157 or for contradicting his statement in accordance with Section 145, Evidence Act. Roghuni Singh v. Empress ILR 9 Cal. 455, Bechan Prasad v. Jhuri AIR 1936 All. 363, Rangappa Goundan v. Emperor AIR 1936 Mad. 426, are the authorities in which the doctors were available but were not examined. The High Courts held that the certificates issued by the doctors were not admissible in evidence without the examination of their authors.
4. The above cases are, however, distinguishable, where Section 32(2), Evidence Act, has to be applied. Section 32(2) is reproduced below:
32 Statements, written or verbal of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances, are themselves relevant facts in the following cases.
x x x x x x x x x(2) When the statement was made by such person in the ordinary course of business, and in particular x x x x in the discharge of professional duty x x x.
The language of the above quoted section demonstrates that where the medical officer is dead or cannot be found, the aforesaid decisions have no application. The injury report given by the doctor, who is no more is this world, would be admissible and relevant under the aforesaid provisions of law. In this connection a reference is made to Mohan Singh v. Emperor AIR 1925 All. 413. In that case Sulaiman and Mukerji, JJ., observed:
This report would be admissible under Section 32(2) of the Evidence Act as being a statement made by a dead person in the ordinary course of business and in the discharge of his professional duty.
In State v. Rakshpal Singh : AIR1953All520 , P.L. Bhargava, J, held:
Where the injury report prepared by the Medical Officer is proved by his compounder, it is admissible under Section 32(2) if the attendance of the Medical Officer cannot be procured without delay & expense.
In another case Ram Balak Singh v. State : AIR1964Pat62 Anant Singh & G.N. Prasad, JJ. pointed out thus:
Dr. Bhola Mahto, who had performed the autopsy over the dead body of Kedar at 2 P M. on the 10th November, 1959, was at the time of the trial, out abroad, and his post mortom report (Ex. 3) was proved by Dr. K.N. Pathak (P W. 6) by proving the had writing and signature of Doetor Bhola Mahto on the post-mortem report. Since Dr. Bhola Mahto was not easily available the post-mortem report prepared by him would be admissible in evidence.
5. The only authority, in which contrary view has been taken, is reported in the Bench decision of the Orissa High Court, Krishna Alias Khatu Pradhan v. State XXX C.L.T. 495. In that case Rao & Das, JJ., observed as under:
It is accepted law that the post-mortem report and the injury report are not admissible in evidence unless the medical Officer giving the reports is examined.
In that case the Doctor who gave the certificate was at the time of the trial in England. His evidence in the committing Court was discarded for the reason which is not relevant for the purpose of this case and need not be considered. It is manifest from the passage quoted supra that the Court did not discuss the law on the point under discussion. The finding was based on certain cases in which though the doctors were available, but were not examined. The High Court's attention was not drawn towards the implication of Section 32(2) of the Evidence Act. Since the legal position was not put up before that Court, that authority is not persuasive, more specially when the distinction pointed out between the two types of cases did not receive due consideration of the Court.
6.In the light of above discussion, the position of law is like this. If the medical officer is available for examination in Court and if he is not examined, the document is not admissible in evidence for the simple reason that such a document can be made use of only for the purpose of corroboration or contradiction or refreshing the memory. If in any case the doctor is dead or is not available for examination in the course of trial, then under the circumstances given in Section 32, Evidence Act, the medical certificate is admissible and relevant. What weight such a certificate would carry is altogether a different matter.
7. In the instant case it could not be disputed that the attendence of the Medical Officer, who is dead, could not have been procured Compounder Moti Lal, P.W. 6, has stated before the the trial Court that the injury report had been prepared by Dr. Naveen Chand and that it bears his signature. This statement of the compounder proves the injury report on the record and the injury report having been proved, is admissible and relevant Under Section 32(2),Evidence Act. In my opinion, therefore, the learned Magistrate was wrong in holding that the injury report, not proved by its author, could not be utilised for the purpose of convicting the accused for causing grievous hurt and that the accused could only be convicted under Section 323, I.P.C. The injury report speaks that Gokul sustained a grievous injury, caused by a sharp edged 'A weapon. However, keeping in view the nature of injury No, I in the present case, it is safer to convict the accused under Section 324, I.P.C., and not under Seciton 326, I.P.C.
8. I, therefore, partially accept this appeal and set-aside the order passed by the learned Munsif Magistrate, Chhoti Sadri, in so far as he directs the conviction of the respondent under Section 323, I.P.C. Keeping in view the facts and circumstances of the case and the nature of the injury sustained by Gokul, I do not feel inclined to enhance the sentence imposed on him A sentence of fine of Rs, 125/-, awarded by the Court below would meet the ends of justice.