HORI LAL AND ANR. versus STATE OF U.P.

HORI LAL AND ANR.

STATE OF U.P. September 8, 1969

[S. M. SIKRI, G. K. MITTER AND P. JAGANMOHAN REDDY, JJ.]

Indian Penal Code, 1860 ( 45 of 1860), ss. j2Q and 326-Grievou~ injury-fi'ractire-Meahing of.

The 'appellants gave kanta blows resulting in number of injuries to person. Some of injuries were incised wounds, some contusions, and some abrasions. All the incised injuries except one showed that the honF-s h"ld been cut. On the question whether the conviction of the appel-lants under s, 326, l.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 or 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 l.P .C., provide that an injury could only be designated as grievous if it is (1) fracture or dislocation of bone or tooth, or (2) any hurt which endangers life or which cau.'jes 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 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 break by cutting or splintering of the bone or there is rupture or fissure in it, it would amount to 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 break in them. [242 H; 243 D-F]

In the present case, some of the incised 1n1ur1es 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 Tin, A.I.R. (1937) Rang. 2.53 and Mutukdhar Singh v. Emperor, A.I.R. (1942) Pat. 376, dis-approved.

CRIMINAL APPELLATE 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 appe!la~ts.

0. P. · Rana, for .the respondent.

The Judgment of the Court was deliyered by

Jaganmohan Reddy, J. This appeal by special leave is direct-ed 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 impri-sonment for 5 years.

The appellants who ar' the residents of Bhitwa Gadan Khera are friends belonging to the same party. It was alleged that on June 14, 1964 Bisram's cattle stray~d into the field and damaged the crop of Deo Dutt who is the nephew of Sagar Singh and Jeet Bahadur. In respect of this damage Deo Dutt and his aiartner 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 complaint in the police station. Because of this complaiut relations between the parties became strained as result of which the accused stopped working for .Teet Bahadur and Sagar Singh and evm asked the other members of his beradari to follow suit. On March 29, 1965 at about 5.30 p.m. Jeet Rahadur P.W. 2 along with his labourer Sri Pal deceased was reaping the harvest. The field of Sagar Singh P.W. I is situate just adjacent to the field of Jeet Bahadur with only 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. Jeet 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 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 report Ex. Ka-1 at about 9.55 p.m. on March 29, 1965. The investigation officer Bhanu Prakash Sha1ma, P.W. 5 investigated tile 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 '.lO, J 965 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 e::cept No. 7 showed that the bones had been cut. These injuries are as follows :-H

" 2. Incised wound "3" X l" X bone vertically on the right half forehead just above the right eye brow.

,.., ,.._

3. Incised wound li" >< i·" X bone cutting the underlying bone lower part left humerus just a~ove th~ 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 [/ ]l" X bone on the back of the left forearm lower I/3rd. Slightly obliquely cutting both the bon~s of left forearm.

6. Incised wound 4l"X l" bone on the left leg middle back and laterally cutting tl)e underlying tibia bone shaft."

The ddencc ...... l>f· th.e accused is that they had been falsely implicated. The prosecutipn examined Sagar Singh_ P.W. 1, Jeet Bahadur P.W. 2 and Maya Ram P.W. 3 ~s eye witnesses and since Sri Pa! one of the eye witnesses died after his evidence was recorded by the committing ·,)rngistrate, his deposition was admitted and treated as evidence under s. 33 of-{he-·EQidence 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 n,urder 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 thaL the injured person was disabled for 20 days or more; secpndly, that the confusions found on P.W. 2 would clearly belie the evidence of the eye witnesses that the injuries were inflicted by 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 the appellant had caused the injurjes 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. cif 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 oqght not

to be relied upon. Accordiiog to Maya Ram, ho was in the Ka!lian when he heard the cries of ket Bahadur and rushed. He says, ··it was the time of about 5 or ~.30 p.m. 1. heard "" alarm raised in the field of Jcet BahaJur. I and Hrn1achal rnn to that side. R~un Pal \VHS c01ning up running fro111 the wc:-,;.;,:rn side. Jn the field of Je~t Bahadur, I ~aw Bisram and Hori L.il accu::.ed p1esent in court b.~atin.g .feet Bahadue vtith kantus. '..'··: raised alarn1. After assaulting Ject Bahadur 1-lori L.ai and Bi~r•U1i accused \Vent a\vay to\\·ards the cast. Sagar Singh \\·~1~ co111in2 up runnin~ fron1 his chak. Sagar Singh \Vas ra1:;1ng alann: · Bisrun1 accused fired the pblol at Sa1£:1r Singh. but Sagar did not sustain nny injury. I sa\v injuri~-:. on th~ body of Ject '-...Balladur. After it we too)' Jeet Bahadur to Hasanganj on cn1:· The \vitness \Vas cross-exa111inrd at \.:n!2lh hut no,vhcrc ha ... 1l been suggested that he is an intcrc~t1.:d \Vitness or he is spcnkin:; untruth."~ Both the Sessions Court '" well as the High C."<.;un relied upon his evidence which according to thc111 fully corrohorat-ed the evidence of P.Ws. 1 and 2. The 'fact that some contusion' and abr~lsions were found bn P.W. 2 dOcs not i1npair the cvidcnt.·c of these witnesses because the doctor was ;iot asked whcl her the injuries \Vere possible if ku1lta.....biov.·s anJ given. 1t is qui!~ possible to find contusions \Vhere t\vo'"j)crsons arc giving blo\,-~ with kantas which have also blunt asides. Llnless definite su:c· gcstions are made and the impossibility of finding any such injuries with k1111ta blows is elicited. we will not be justified merely on submission from the har tO accept it and discard the evidence of the e¥e witnesses. We. th~rdore, find no valid reason in not "ccepting the con· current findings of both ·the courts that the appellants had caused injuries to P.W. 2 as spoken to by the witnesses. In these circu111stancc~~, it is unnecessary for us to express any vie'". on the question whether the evidence of the investigating o!liccr Bhanu Prakash Sharma that 'it has been learnt' that Sri Pal ha' died' is sufficient to prove the. death of Sri Pal in order to adm ir 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 injurie> which have· been found on P.W. 2, namely, whether they arc simple or grievous. In order to justify conviction under s. 326. injuries on P.W. 2 must satisfy the rcq_uirements of cl. 7 or c( ~ of s .. 320 of ~he. Indian Panel Code. otherwise they will be treated as s1mpl? .minnes. Clauses 7 ,a~d 8 of s. 320 I.P.C. provid~ that an miury. could. only be, designated as grievous if it is (J) fracture or d1slocat1on of bone or tooth, or (2) any hurt which

endangers life or which cause" the sufferer to be .during the space of twenty days in sen~re 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 dis' doses that there is fracture or dislocation of any bone. These injuries, it is said. at :he most show that the particular bones on 11hich the infuries were inflicted were cut which how-ewr docs not amount to fracture. It 1s true that tracture has not been defined in the penal code. It is ,,omcti1nes tnought as in the case of Po Yi Maung v. Ma Tin(') that the meaning of the word fracture would imply that there ,;houl,d be break m the bone and that in the ccrse of sku\l bone it is not merely sufticient that there is crack but that the crack must c.\tcnd from the outer surface cf the skull to the inter surfoce. In i1!11111kdlwr Singh v. Emperor(') it was observed that if the c1·idence is merely that bone has been cut and there is nothing "hatever to indicate the txtent of the cut, whether deep one <'I' mere scratch on the surface ol the bone, it will be difticult , to infer that the injury is grievous hurt within the meaning of s. 320 of the Panel Code. Jn our view, both these zcssump-tions are misleading. It is not necessary that bone should be cut through and through or that the crack must extend from the rrnter to the inner surface or that there should be displacement t1f any fragment of the bone. If there is break by cutting or ;plintering of the bone or there is rupture or fissure in it, it would amourit to fracture within the meaning of cl. 7 of s. 320. What we have to sec is whether the cuts in the bones noticed in the injuty report are only superficial or do they effect break in them. The nature of the injuries as spoken to by the doctor in his evidence, discloses the length, breaJth 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 iniuries 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 tl1e bones of the left forearm and in injury 6 the tibia bone shaft Juve been cut which would show that they are fractures. Apart from this the doctor as noticed earlier has in his evidence said that these injuri"s 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 un-aware 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'

rt) A.l.R. (1937) Rang 253.

(2) .1.R. (t 942) Pal. 37~.

miunes were grievous. These injuries wert inflicted by km11a1 which are dangerous weapons and hence the conviction under s. 326 is fully justified.

The appeaUails and it is dismissed.

Appeal dis111i.1.1ci!.