Full Judgment Text
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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.
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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.
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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
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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.
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