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2003 DIGILAW 231 (PNJ)

State of Punjab v. Nasib Singh

2003-02-06

S.S.SARON, SWATANTER KUMAR

body2003
JUDGMENT Swatanter Kumar, J. - May be not a very pertinent or significant but certainly a question which is likely to fall for determination before the court more than often is, whether absence of x-ray film in a case of alleged fracture grievous hurt can per se be a reason enough for converting an offence to section 324 from section 326 of the Indian Penal Code ? Further corollary thereto which we are called upon to examine in this Criminal Appeal is, on such conversion whether benefits under the Probation of Offenders Act, 1958 could be granted to the accused ? 2. Before we proceed to discuss the various legal facets of this moot question, reference to basic facts giving rise to the present appeal can appropriately be made. 3. An F.I.R. No. 43 dated 3.3.1985 was registered by the Police Station Morinda in District Ropar, under sections 326, 324 read with section 34 of other Indian Penal Code. The F.I.R. exhibit PB/1 was registered on the statement Sh. Maghar Singh son of Sh. Mehar Singh, aged 50 years, resident of Khant which reads as under :- "I am a resident of village Khant and do cultivation. Today at about 8.00 A.M. Nirmal Singh s/o Jata Singh, Balwinder Singh s/o Jangi Singh, resident of the village and I were reading a newspaper while sitting on a bench lying in front of the door of the grocery shop (of Balwinder Singh) in the street. In the meantime, Nasib Singh s/o Mangal Singh armed with a kirpan and his son Mewa Singh armed with kirpan came towards us from their shop of electrical goods. Just after their arrival, Mewa Singh s/o Nasib Singh raised a lalkara saying, "Maghar Singh get ready, today we will teach you a lesson for hurling abuses. Saying so, Mewa Singh gave a kirpan blow on my head which I warded off on my hand as a result thereof, the said kirpan blow fell on my fingers. Again he gave one more blow which I warded off on my left arm, hitting my wrist. As a result of which, the bone of my wrist was cut. After that Nasib Singh gave blow with his kirpan which fell on my left leg above the ankle as a result of which the bone of the shin of leg was cut. As a result of which, the bone of my wrist was cut. After that Nasib Singh gave blow with his kirpan which fell on my left leg above the ankle as a result of which the bone of the shin of leg was cut. Thereupon, Balwinder Singh, Nirmal Singh and I raised an alarm of "Na Maro, Na Maro" (Dont kill, dont kill) upon which Nasib Singh and Mewa Singh both father and son fled away together with their respective weapons. The cause of grouse is that on 28.2.85 Mewa Singh, Gurmit Singh and I have consumed liquor together where an altercation had taken place between Mewa Singh and thereupon, Balwinder Singh and Nirmal Singh aforesaid, residents of my village removed me to hospital in the car of Sher Singh where you have come. You have recorded my statement. Action may be taken." 4. The injured was taken to the hospital and were examined by doctors PW5, PW7 and PW8 respectively. Blood stained earth and Panjabi Tribune News paper dated 3.3.1985 and blood stained jutti were taken into custody by the Investigating Office vide exhibit PA. On the disclosure statement Ex. PC and Ex. PD of Nasib Singh and Mewa Singh respectively weapons i.e. blood stained kirpan and (sic) were recovered vide Ex. PE and Ex. PF respectively. After recording the statement of witnesses under section 161 and Criminal Procedure Code, challan was filed in the court and the learned trial court vide its order dated 2.9.1985 framed the following charges against both the accused to which they pleaded no guilty and claimed trial : " I, Mrs. Sudershan Modi, PCS, Judicial Magistrate Ist Class, Ropar do hereby charge you as follows :- That on 3.3.1985 at about 8 A.M. in the Revenue limits of Khant in furtherance of common intention of your (sic. you) both Nasib Singh and Mewa Singh which was to caused (sic. cause) grievous hurt with a sharp edged weapon i.e. with Kirpan which is an instrument of cutting, to Maghar Singh PW, you Mewa Singh voluntarily caused grievous injury with sharp edged weapon to Maghar Singh and thereby committed an offence punishable under section 326 Indian Penal Code and whereas Nasib Singh committed offence under section 326 read with section 34 Indian Penal Code and within my cognizance. Secondly, on the same day time and place, in furtherance of common intention of you both which was to cause (sic. cause) grievance hurt to Maghar Singh PW with a kirpan which is an instrument of cutting, you Nasib Singh voluntarily caused grievous hurt with sharp edged weapon to Maghar Singh and you Nasib Singh committed an offence punishable under section 326 Indian Penal Code and Mewa Singh under section 326/34 Indian Penal Code and within my cognizance and I hereby direct that you both be tried by me for the above said charges." 5. The prosecution examined eight PWs in support of its case and proved various documents including afore-referred on record. The statement of the accused was recorded under section 313 Criminal Procedure Code on 29th October, 1996 in which they denied the entire prosecution case and claimed that they are innocent and wanted to lead evidence in defence. However, no defence was led by the accused and the learned trial court vide its judgment and order of sentence both dated 21st May, 1987 found the accused guilty of offence under section 326 read with section 34 of the Indian Penal Code and sentenced both the accused to undergo rigourous imprisonment for two years and to pay a fine of Rs. 500/- each or in default of payment of fine to further undergo rigourous imprisonment for the period of six months each. Both the accused were also sentenced under section 326 read with section 34 of the Indian Penal Code to undergo rigourous imprisonment for the period of one year and to pay a fine of Rs. 500/- each, or in default of payment of fine to further undergo rigourous imprisonment for the period of three months. The sentences were to run concurrently. 6. The accused preferred an appeal against the judgment of conviction and sentence. The learned Additional Sessions Judge, Ropar vide his judgment and order dated 14th July, 1992 came to the conclusion that the prosecution was not able to prove its case beyond reasonable doubt for an offence under section 326 of the Indian Penal Code as the x-ray of the injury was not conducted and produced in court. The learned Additional Sessions Judge, Ropar vide his judgment and order dated 14th July, 1992 came to the conclusion that the prosecution was not able to prove its case beyond reasonable doubt for an offence under section 326 of the Indian Penal Code as the x-ray of the injury was not conducted and produced in court. Besides, ingredients of grievous hurt were not satisfied by the medical evidence produced on record as such converted the offence to be one which falls under section 324 of the Indian Penal Code and after finding the accused guilty of the said offence, convicted the accused under section 324 read with section 34 of the Indian Penal Code and directed that both the accused be released on probation of good conduct while directing each of the accused to furnish personal bond for a sum of Rs. 5,000/- with one surety bond for the same amount for the period of two years. Certain further directions were issued in regard to payment of costs of the proceedings and the amount to be disbursed to in favour of the injured Maghar Singh by way of compensation. 7. The State of Punjab has filed this appeal against the order assailing the same to the extent that the respondents have been acquitted for the offence under section 326 read with section 34 of the Indian Penal Code. 8. The learned counsel appearing for the State contended that there was sufficient expert medical evidence on record to establish commission of crime under section 326 Indian Penal Code. The weapon used by assailant, the manner in which they were used, clearly show an intention on the part of the accused-respondents to cause grievous hurt to the injured. For this purpose he relied upon the Division Bench of this Court in the case of State of Punjab v. Milkha Singh, 2001(2) Recent Criminal Reports 273. Accordingly, he prays that the State appeal be accepted and the respondents be convicted for the offence under section 326 read with section 34 of the Indian Penal Code for which they were charged. 9. Accordingly, he prays that the State appeal be accepted and the respondents be convicted for the offence under section 326 read with section 34 of the Indian Penal Code for which they were charged. 9. On the other hand, learned counsel appearing for the respondents relied upon the case of Ram Lubhaya v. State of Punjab, 1992(1) RCR 230, to contend that where accused caused injury with kirpan and the doctor declared the injury as grievous but without subjecting the injury to x-ray, there could be no assurance that bone was cut. To support his contention further, that is, in absence x-ray examination, the injury could not be declared as grievous, even if there was a gandasi blow on the injured and doctor declared the injury as grievous, the absence of x-ray film would take the offence outside the purview and scope of section 326 of the Indian Penal Code. For this purpose he also relied upon the judgment of a Division Bench in the case of State of Punjab v. Kundan Singh, 1994(2) Recent Criminal Reports 372. In order to create a dent in the case of the prosecution, learned counsel for the respondents further relied upon the judgment of Honble Supreme Court in the case of Hori Lal and another v. The State of U.P., AIR 1970 Supreme Court 1969 and contended that there was no proper medical evidence on record which would show complete and specific description of the injury and absence thereof, must help the accused and benefit to go them. 10. Lastly, he contended that the respondents at best could be convicted for an offence punishable under section 324 of the Indian Penal Code for which they had already been convicted by the learned Additional Sessions Judge, vide his judgment dated 14th July, 1992. For this purpose he relied upon another Division Bench judgment of this court in the case of Narender Singh v. Sukhbir Singh (State of Punjab), 1993(1) Recent Criminal Report 44 and Kailash Prasad Kanodia v. State of Bihar, AIR 1980 Supreme Court 106. 11. Before we deal with the merit of the present case, it will be more appropriate that we answer the above formulated question of law first. 12. The "grievous hurt" has been defined under section 320 of the Indian Penal Code which reads as under :- "320 Grievious hurt. 11. Before we deal with the merit of the present case, it will be more appropriate that we answer the above formulated question of law first. 12. The "grievous hurt" has been defined under section 320 of the Indian Penal Code which reads as under :- "320 Grievious hurt. - The following kinds of hurt only are designated as "grievous" :- First - Emasculation. Secondly - Permanent privation of the sight of either eye. Thirdly - Permanent privation of the hearing of either ear. Fourthly - Privation of any member or joint. Fifthly - Destruction or permanent impairing of the powers of any member or joint. Sixthly - Permanent disfiguration of the head or face. Seventhly - Fracture or dislocation of a bone or tooth. Eigthly - 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." 13. The bare reading of the above provision indicates that grevious hurt is one which falls under the Clauses to Section 320 of the Indian Penal Code and a person who voluntarily causes grievous hurt with weapons, as stated, shall be punished as prescribed. Thus, knowledge that the person is causing or is likely to cause grievous hurt and the act being voluntary on the part of the assailant and injury caused falls in any of the Clauses of section 320 of the Indian Penal Code would be satisfying the ingredients of commission of offence under section 326. 14. When an injury inflicted would fall within one of the Clauses of section 320 of the Indian Penal Code came up for consideration before Honble Supreme Court in Hori Lals case (supra) where the Court held as under :- "It is not necessary that a bone should be cut through and through or that the crack must extend from the outer to the inner surface or that there should be displacement of any fragment of the bone. If there is a break by cutting or splintering of the bone or there is a rupture or fissure in it, it would amount to a fracture within the meaning of Clause 7 of Section 320. What Court has to see is whether the cuts in the bones noticed in the injury report are only superficial or do they effect a break in them. What Court has to see is whether the cuts in the bones noticed in the injury report are only superficial or do they effect a break in them. AIR 1937 Rangoon 253 and AIR 1942 Patna 376, Overruled." 15. Furthermore, a Division Bench of this Court in consonance with the settled principle of law in Narinder Singhs case (supra) took the view that partial cut of bone amounts to grievous injury and it is not necessary that bone should be cut through and through so as to taken it outside the ambit of definition of grevious hurt. The Court also categorically rejected the contention raised on behalf of the accused that as no x-ray was done and produced in court, as such, even if there was partial cut of the bone, it would amount to causing grievous hurt. However, in the present case, the principal enunciated in Kailash Prasad Kanodias case (supra) by the Honble Apex Court was applied and the accused held guilty for commission of offence punishable under section 324 read with section 34 of the Indian Penal Code. Reference can also be and appropriately to the judgment of the Honble (supra) in the case of Nasib Singh v. State of Punjab, AIR 1986 Supreme Court 2192, where the Court held as under :- "It is not correct to say that a partial cut of the skull vault is seldom so prominent except when excessive force is used in inflicting the injury. It appears from the evidence in the instant case that the victim was putting on a turban when assaulted with the gandasa. What saved him was the turban and it took away the force of the impact leaving a head injury. In the circumstances, there can be no doubt that there was a fracture within the meaning of clause seventhly of Section 320 (1978) 80 Pun. LR 326 affirmed and hence he could be convicted under Section 326 and not Section 324. AIR 1970 Supreme Court 1969, Foll." 16. The Honble Supreme Court in a recent judgment in the case of Sattan Sahani v. State of Bihar & Ors., JT 2002(7) SC 512 while specifying that the requirement of section 320 of the Indian Penal Code ought to be satisfied proceeded to hold that a single blow from bhala would be a grievous injury inflicted on the injured. The Court held as under :- "4. The Court held as under :- "4. For conviction under section 326 the requirements of section 320 Indian Penal Code must be satisfied. Considering the fact that though only one blow was caused by the appellant, from the weapon used namely bhala, it must be inferred that it was likely to cause the death of the injured person and, therefore, the offence is made out under Section 326 Indian Penal Code and he was rightly convicted under that provision." 17. The above settled principle of law clearly indicates that ingredients like, intention to cause grevious hurt, knowledge thereof are the basic ingredients which would be satisfied before an accused can be held guilty under section 326 of the Indian Penal Code. 18. Applying these principle to the facts of the present case, the accused had come out with a sword and thus had every intention to cause serious injury to the accused. The accused had full knowledge that by inflicting injuries by the weapon they were carrying are bound to cause serious injuries to the injured. Thus, the intention as well as the knowledge is fully established in the present case not only by the statement of witnesses but have been supported by the expert medical evidence. Mere fact that x-ray was not done would not be of great help to the accused in the facts and circumstances of the case. The injured was examined by two different doctors PW.5 Dr. D.K. Mahajan and PW7 Dr. S.S. Sandhu. One of the doctor namely S.S. Sandhu was an Orthopaedic Surgeon i.e. specialist in reduction to bone injuries. According to PW.7 Dr. S.S. Sandhu, Registrar Orthopaedic Department, left leg of the injured was fractured and close reduction and debridement of the wound was done. According to this witness x-ray was done though x-ray report was not brought to the court. Dr. Rajesh Kaushash PW.8, who had examined the injured on 3.3.1985 stated that the patient was referred to P.G.I. and injury No. 6 was described by him as under :- "6. Injury on left leg :- Compound fracture left lower 1/3rd of tibia. 1" cut left forehead. No active bleeding." 19. He has categorically stated that injury No. 6 was treated by Orthopaedic department and fairly stated that he could not comment upon the extent of the injury. As already noticed Dr. S.S. Sandhu PW. Injury on left leg :- Compound fracture left lower 1/3rd of tibia. 1" cut left forehead. No active bleeding." 19. He has categorically stated that injury No. 6 was treated by Orthopaedic department and fairly stated that he could not comment upon the extent of the injury. As already noticed Dr. S.S. Sandhu PW. 7 categorically stated that there was fracture of the bone and he had treated the wound by closed reduction. This medical evidence fully supports the case of the prosecution. Ex. PB was ruqa prepared by Rajinder Pal, S.I. Station House Officer, where it was clearly noticed that accused Nasib Singh and Mewa Singh armed with kirpan had come out, gave a lalkara that Maghar Singh get ready today we will teach you a lesson for hurling abuses and then they gave kirpan blows to the injured. 20. Statement of Maghar Singh cannot be disbelieved. He is an injured eye witness to the occurrence. The blood stained Jutti, blood stained Punjabi news-paper dated 3.3.1985 and blood stained earth were collected from the place of occurrence. Nasib Singh and Mewa Singh accused also made disclosure statements Ex. PC and Ex. PD respectively under section 27 of the Evidence Act and got the blood stained kirpan recovered vide Exhibits PE and PF respectively. 21. Learned trial court has come to a definite conclusion upon appreciation of the evidence that the prosecution was able to prove its case beyond reasonable doubt and as such both the accused were held guilty of the offence punishable under section 326 of the Indian Penal Code and sentenced afore-noticed. 22. As already noticed, on appeal being filed by the accused, the learned Additional Sessions Judge, Ropar vide his judgment and order dated 14th July, 1992 converted the case to that under section 324 read with section 34 of the Indian Penal Code from an offence under section 326/34 of the Indian Penal Code. 23. The finding of the learned Additional Sessions Judge, is that there was no definite data in regard to nature of the injury, given by the doctor. The learned Additional Sessions Judge has not specifically noticed the statement of PW.7 Dr. S.S. Sandhu, Orthopaedic specialist. The cumulative effect of the medical evidence on record clearly shows that the injury caused to Maghar Singh was a grievous one. 24. The learned Additional Sessions Judge has not specifically noticed the statement of PW.7 Dr. S.S. Sandhu, Orthopaedic specialist. The cumulative effect of the medical evidence on record clearly shows that the injury caused to Maghar Singh was a grievous one. 24. In view of the settled principle of law referred to above and the conclusion thereof, we hold that it is not possible to hold that absence of x-ray film during the course of trial or where x-ray of the injured is not even done in all cases would result in acquittal of the accused under section 326 Indian Penal Code It will depend on the facts and circumstances of each case, where eye witness version is duly supported by the medical evidence, particularly by an expert medical evidence which clearly shows that bone had fractured and it was visible from naked eye, the Court would not be justified in granting acquittal to the accused for the offence under section 326 of the Indian Penal Code. 25. Learned counsel for the respondents relied upon the cases of Ram Labhaya v. State of Punjab, 1992(1) RCR 230, State of Punjab v. Kundan Singh, 1994(2) Recent Criminal Reports 373 and State of Punjab v. Manga Ram and anr., 1992(2) Recent Criminal Reports 144 (P&H), to contend that absence of x-ray film would result in taking the injury outside the ambit of section 320 Clause seventhly of the Indian Penal Code. The observations of the Division Bench in Jiwan Singhs case 1994(2) RCR (Crl) 373 were peculiar to the facts of that case. The contention before the Court in paragraph 10 of the judgment was that the injured had suffered only superficial injuries and moreover there was no x-ray to bring an offence within the definition of section 326 of the Indian Penal Code. The Court while relying upon the medical evidence of AC Sood in that case held that the injuries were not of serious nature. 26. Reference by the Division Bench to the judgment of the Honble Apex Court in the case of Kailash Prasad Kanodia and another v. State of Bihar, AIR 1980 Supreme Court 106 was obviously correct. The Honble Supreme Court also laid down in that case that if the medical evidence discloses no serious injuries on any vital part and doctor admitted absence of fracture of serious nature conviction under section 326 cannot be sustained. The Honble Supreme Court also laid down in that case that if the medical evidence discloses no serious injuries on any vital part and doctor admitted absence of fracture of serious nature conviction under section 326 cannot be sustained. This is not the situation existing in the present cases. There is definite expert medical evidence duly corroborated by the statement of witnesses. The weapon used, intention of the accused and knowledge thereof that they were likely to cause grievous hurt to the injured certainly brings the offence within the parameters specified under section 320(7) punishable under section 326 of the Indian Penal Code. 27. Furthermore, we must clarify as an abundant caution that the Division Bench of this Court in the case of Jiwan Singh (supra) has not laid down as a principle of law that absence of x-ray film would per se and universally take out every offence from the purview of section 320 clause seventhly de hors the medical evidence and attendant circumstances, indicating that injured had suffered a serious injury like a compound fracture, fracture of the bone and, despite that bone was not broken into two pieces. 28. In view of our above discussion, we are of the considered view that the accused are guilty of an offence under section 326 of the Indian Penal Code relatable to grievous hurt as defined in clause seventhly of section 320 Indian Penal Code. 29. Consequently, we allow the appeal and affirm the judgment of the trial court in regard to conviction and sentence and modify the judgment of the appellate court to that extent. 30. At this stage, it will be useful to notice here that as per evidence of PW.7 Dr. S.S. Sandhu, Orthopaedic Surgeon, injury was not likely to cause death. None of the medical experts have so stated in their respective statements. The grievous hurt injury No. 6 is on the leg of the injured and as commonly known was not causing any apparent endanger (danger ?) to the life of the injured. Under these circumstances, we would approve the grant of benefits of the provisions of section 4 of The Probation of Offenders Act, 1958, to accused as granted by the learned Appellate Court, in view of the prescribed punishment. The appeal is accordingly disposed of. Appeal allowed.