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PETITIONER: HORI LAL AND ANR.

       Vs.

RESPONDENT: STATE OF U.P.

DATE OF JUDGMENT: 08/09/1969

BENCH: REDDY, P. JAGANMOHAN BENCH: REDDY, P. JAGANMOHAN SIKRI, S.M. MITTER, G.K.

CITATION:  1970 AIR 1969            1970 SCR  (2) 237  1970 SCC  (1)  60  CITATOR INFO :  F          1986 SC2192  (2,3,4,5,6)

ACT: Indian   Penal  Code,  1860  (45  of  1860),  ss.  320   and 326---Grievous injury  Fracture--Meaning of.

HEADNOTE: The  appellants  gave kanta blows resulting in a  number  of injuries to a person.  Some of injuries were incised wounds, some  contusions,  and  some abrasions.   All  the  incised4 injuries except one showed that the bones had been cut.   On the question whether the conviction of the appellants  under s. 326, I.P.C. for grievous hurt was justified or not; HELD: The conviction under s. 326 was fully justified.     In  order  to.  justify conviction  under  s.  326,  the injuries must satisfy the requirements of cl. 7 Dr cl. 8  of s.  320  of the Indian Penal Code, otherwise  they  will  be treated  as  simple injuries.  Clauses 7 ’and 8  of  s.  320 I.P.C.,  provide that an injury could only be designated  as grievous if it is (1) a fracture or dislocation of a bone or tooth,  or  (2)  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.  Fracture has  not been defined in the Penal Code. 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, would amount to a fracture within the. meaning of cl.  7 of  s. 320.  What has to be seen is whether the cuts in  the bones  noticed in the injury report are only superficial  or do they effect a break in them. [242 H; 243 D--F]     In  the  present case, some of  the   incised   injuries show   that   they  were bone deep and  were   described  as cutting  the  underlying  bone, which would show  that  they were  fractures.  Apart from this the doctor said  that  the injuries were grievous.  These injuries  were  inflicted  by Kantas which are dangerous weapons.     Observations  contra in Po Yi Maung v. Ma E Tin,  A.I.R.

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(1937)  Rang.  253 and Mutukdhar Singh  v.  Emperor,  A.I.R. (1942)  Pat.  376,  disapproved.

JUDGMENT: CRIMINAL   APPELLAT JURISDICTION:Criminal  Appeal  No.70  of 1968.     Appeal  by  special leave from the  judgment  and  order dated  October 6, 1967 of the Allahabad High Court,  Lucknow Bench in Criminal Appeal No. 164 of 1966. R.K. Garg, S.C. Agarwal and Uma Dutta, for the appellants. O.P. Rana, for the respondent. 238 The Judgment of the Court was delivered by     Jaganmohan  Reddy, J.  This appeal by special  leave  is directed  against the judgment of the Allahabad  High  Court setting aside the conviction of Hori Lal and Bisram under s. 307  read  with s. 34 of the I.P.C. and  instead  convicting them under s. 326 read with s. 34 I.P.C. and sentencing each of them to rigorous imprisonment for 5 years.     The  appellants. who are the residents of  Bhitwa  Gadan Khera  are  friends  belonging to the same  party.   It  was alleged  that on June 14, 1964 Bisram’s cattle strayed  into the field and damaged the crop of Deo Dutt who is the nephew of Sagar Singh and Jeer Bahadur.  In respect of this  damage Deo Dutt  and  his partner Ram Bharose. complained to Bisram who  along with some other persons went to the house of  Deo Dutt  and  threatened  him and the  members  of  his  family including Jeet Bahadur and Sagar Singh.  Thereupon Deo  Dutt lodged  a complaint in the police station.  Because of  this complaint relations between the parties became strained as a result of which the accused stopped working for Jeet Bahadur and  Sagar  Singh and even asked the other  members  of  his beradari  to follow suit.  On March 29, 1965 at  about  5.30 p.m.  Jeet  Bahadur P.W. 2 along with his  laborer  Sri  Pal deceased  was   reaping  the  harvest.  The field  of  Sagar Singh  P.W. 1 is situate just adjacent to the field of  Jeer Bahadur  with only a chak road between their fields.  It  is the prosecution case that on that day both the accused armed with   kantas  went  to  the  field  of  Jeet  BahAdur   and challenged   him. Immediately thereafter they began to  deal kanta blows on Jeet Bahadur.  Jeer Bahadur P.W. 2 cried  out whereupon   Sagar Singh P.W. 1 hearing the shouts rushed  to his aid.  Maya Ram P.W. 3 and Himachal and Ram Pal who  were nearby  also  rushed to the aid of  Jeet  Bahadur.   Accused Bisram is said to have fired a revolver at Sagar  Singh  but he   did not  receive any  inquiry. Thereafter  the  accused ran away towards the village.  As Jeet Bahadur was  injured, Sagar Singh P.W. 1 took him to the police station and  there lodged  a  report Ex. Ka-1 at about 9.55 p.m. on  March  29, 1965.  The investigation officer Bhanu Prakash Sharma,  P.W. 5  investigated the crime,. prepared  site   plan,  recorded statements of the witnesses and seized  blood  stained  mud. Jeet  Bahadur  was admitted to the  District   hospital   at Unnao.   Dr. Srivastava examined him on March 30,  1965   at 8.30 a.m. and found as many as 10 injuries of which injuries 2 to 7 were incised wounds, injuries 1 and 9 contusions  and injuries  8  and  10 abrasions.  All  the  incised  injuries except  No.  7 showed that the bones had  been  cut.   These injuries are as follows :--                       "2.  Incised  wound .13" X 1"  X  bone               vertically  on  the right half  forehead  just               above the right eye brow.               239

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                 3.  Incised wound 1 1/4" >< 1/2"  >(  bone                             cutting   the underlying bone lower  p art  left               humerus just above the left elbow on the  back               of left arm.                   4. Incised wound obliquely 5" X 2" X  bone               cutting  the underlying radius and above  left               in the middle of the left forearm back.                   5. Incised wound 5"X I"X bone on the  back               of  the  left forearm  lower  I/3rd.  Slightly               obliquely  cutting  both  the  bones  of  left               forearm.                   6.  Incised wound 4 1/2"X 1" bone  on  the               left   leg middle back and  laterally  cutting               the underlying tibia bone shaft."     The  defence  of  the accused is  that  they  had   been falsely  implicated.  The prosecution examined  Sagar  Singh P.W.   1,  Jeet Bahadur P.W. 2 and Maya Ram P.W.  3  as  eye witnesses  and since Sri Pal one of the eye  witnesses  died after   his  evidence  was  recorded  by   the    committing magistrate,   his  deposition  was admitted and  treated  as evidence  under s. 33 of the Evidence Act (Ex. Ka-11).   The learned  Sessions  Judge.  believed the  eye  witnesses  and relying  upon  Ex. Ka-3 convicted the accused under  s.  307 read  with s. 34.  The learned Judge however acquitted  them of  the  second charge of attempting to murder P.W.  1  with pistol.     In this appeal Mr. S.C. Agarwala learned counsel for the appellants  contends firstly, that the injuries as found  by the  doctor do not justify the conviction of the  appellants of  grievous hurt inasmuch as there is no evidence that  any of the  bones  was fractured or that the injured person  was disabled   for   20   days  or  more;  secondly,  that   the contusions found on P.W. 2 would clearly belie the  evidence of  the eye witnesses that the injuries were inflicted by  a kanta,  and thirdly, that the  deposition  of Sri Pal  ought not  to have been admitted in evidence under s.  33  because the death of Sri Pal has not been strictly proved.     The  main  question which requires to be  determined  in this  case  is  whether  there  is  sufficient  evidence  to establish  that ,he appellant had caused the injuries  found on P.W. 2, and if so, having regard to the injuries what  is the  offence   which  the appellants  have’  committed.   It appears to  us  that  there  is sufficient credible evidence of  the  eye  witnesses  to  prove  beyond  doubt  that  the appellants  had  caused  injuries to P.W. 2.   Even  if  the evidence  of  P.W. 1 and P.W. 2 who. are brothers,  of  whom P.W.  2  is the victim, is for the  moment  not  considered, there is no reason why the evidence of P.W. 3 Maya Ram ought not 240 to  be  relied  upon.  According to Maya  Ram,  he  was   in the  Kallian  when he heard the cries of  Jeet  Bahadur  and rushed.   He  says, "it was the time of  about 5  or   5.30’ p.m.   I   heard   an .alarm raised in  the  field  of  Jeet Bahadur.   I  and  Himachal ran to that side.  Ram  Pal  was coming  up running from the  western side.  In the field  of Jeet  Bahadur, I saw Bisram and Hori Lal accused present  in court  beating Jeet Bahadur with kantas.  We  raised  alarm. After  assaulting Jeet Bahadur Hori Lal and  Bisram  accused went  away  towards  the  east.  Sagar  Singh  was coming up running   from his chak.  Sagar  Singh  was  raising  alarm. Bisram  accused fired the pistol at Sagar Singh,  but  Sagar did  not sustain any injury.  I saw injuries on the body  of Jeet Bahadur.  After it we took Jeer Bahadur to Hasanganj on

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a  cot."  The witness was cross-examined at length  but  now here has it been suggested that he is an interested  witness or he is speaking untruth.  Both the Sessions Court as  well as  the High Court relied upon his evidence which  according to  them fully corroborated the evidence of P.Ws. 1  and  2. The  fact that some contusions and abrasions were  found  on P.W.  2  does  not impair the evidence  of  these  witnesses because  the doctor was not asked whether the injuries  were possible if kanta blows are given.  It is quite possible  to find  contusions  where two persons are  giving  blows  with kantas  which  have  also  blunt  asides.   Unless  definite suggestions  are made and the impossibility of finding   any such  injuries with  kanta  blows  is  elicited,   we   will not  be justified  merely on  a submission  from the bar  to accept  it   and    discard  the   evidence   of   the   eye witnesses.   We, therefore,  find no valid  reason  in   not accepting  the  concurrent  findings  of both   the   courts that the appellants had caused injuries to P.W. 2 as  spoken to   by   the   witnesses.  these  circumstance.s,   it   is unnecessary  for  us  to express any view  on  the  question whether  the  evidence of the  investigating  officer  Bhanu Prakash  Sharma  that ’it has been learnt that Sri  Pal  has died’  is sufficient to prove the death of Sri Pal in  order to  admit the deposition of Sri Pal in the  Committal  Court under s. 33 of the Evidence Act.     It now remains to consider whether the conviction of the appellants under s. 326 for grievous hurt is justified.  The answer to this question would depend on the nature  of   the injuries  which have been found on P.W. 2,  namely,  whether they    are  simple  or  grievous.   In  order  to   justify conviction under s. 326. injuries on P.W. 2 must satisfy the requirements of cl. 7 or cl. 8 of s. 320 of the Indian Panel Code,  otherwise  they will be treated as  simple  injuries. Clauses  7  and 8 of s. 320 I.P.C. provide  that  an  injury could only be designated as grievous if it is (l) a fracture or dislocation of a bone or tooth, or (2) any hurt which 241 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. It  is  contended by the learned counsel for  the  appellant that  none  of the injuries 2 to 6 which were  inflicted  on P.W. 2 discloses that there is a fracture or dislocation  of any bone.  These injuries, it is said, at the most show that the   particular  bones  on  which   the    injuries    were inflicted  were  cut  which  however  does  not  amount   to a   fracture.   It   is  true  that fracture  has  not  been defined  in the penal code.  It is sometimes thought  as  in the case of Po Yi  Maung v.  Ma E  Tin(1)  that the  meaning of  the  word fracture would imply that there  should  be  a break in the bone and that in the case of a skull bone it is not  merely  sufficient that there is a crack but  that  the crack  must extend from the. outer surface of the  skull  to the  inter surface. In Mutukdhar Singh v. Emperor(2) it  was observed that if the evidence is merely that a bone has been cut and there is nothing whatever to indicate the extent  of the  cut,  whether  a deep one or a  mere  scratch  on  the: surface of the bone, it will be difficult to infer that  the injury is a grievous hurt  within  the  meaning of s. 320 of the  Panel  Code.  In our view, both these  assumptions  are misleading.   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

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rupture  or  fissure  in it,  would amount  to.  a  fracture within the meaning of el. 7 of s. 320.  What we have 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.  The nature of the injuries as spoken to by the doctor in his evidence, discloses the length, breadth and depth  of each injury.  So. far as the depth of the injuries  Nos.  3, 4, 5 and 6 is concerned, each one of the injuries shows that it  is  bone  deep and they are  described  as  cutting  the underlying  bone.    in injury 3 left humerus, in  injury  4 radius,  in injury 5 both the bones of the left forearm  and in  injury 6 the tibia bone shaft have been cut which  would show that they are fractures.  Apart from this the doctor as noticed earlier has in his evidence said that these injuries are  grievous.   It  is contended that the  doctor  has  not disclosed  the  reason why he  thinks  that   the   injuries were  grievous.   But in our view the doctor  would  not  be unaware  of what injuries are grievous or what  are  simple. At any rate, the nature of the injuries considered with  the evidence of the doctor would undoubtedly establish that  all the  aforesaid"’ (1) A.I.R. (1937’) Rang 253.     (2) A.I.R. (1942) Pat. 376. 242 injuries  were grievous.  these injuries were  inflicted  by kantas which are dangerous weapons and hence the  conviction under s. 326 is fully justified. The appeal fails and it is dismissed. Y.P.                              Appeal dismissed. 243