Baldev Singh vs State of Punjab

P.K. Jain, J

This revision is directed against the order dated 18.7.1995 passed by Additional Sessions Judge, Amritsar whereby the conviction and sentence imposed upon the petitioner for the offence under Sections 326/324 of the Indian Penal Code by Judicial Magistrate Ist Class, Tarn Taran, have been confirmed. The petitioner has been sentenced to rigorous imprisonment for one year and to pay a fine of Rs. 1000/ and in default of payment of fine, he has been sentenced further to undergo simple imprisonment for two months for the offence under Section 326 of the Indian Penal Code. He has also been sentenced to undergo Rigorous Imprisonment for six months for the offence under Section 324 of the Indian Penal Code.

The prosecution case lies in a narrow compass. The field of the petitioner is adjacent to the field of Sukhwinder Singh (PW.1) and his father Jagir Singh (PW.2). It is alleged that the petitioner had demolished the water course running from his field to the field of said PW, to which he objected and the petitioner felt irritated. On 5.10.1191 at about 4.00 P.M. when Sukhwinder Singh (PW.1) had gone to his field he saw that the petitioner was demolishing the water course running from his field to the field of the complainant. Sukhwinder Singh objected to this act of the petitioner. The petitioner while exclaiming that Sukhwinder Singh (PW.1) should be taught a lesson for objecting and expressing resentment, picked up kirpan lying on his tractor and inflicted an injury on the left upper arm of Sukhwinder Singh. He gave three more kirpan blows hitting on the left cheek, right forearm and forehead in consequence of which Sukhwinder Singh fell down on the ground. The petitioner gave another kirpan blow from its reverse side on the left shoulder of Sukhwinder Singh. Jagir Singh (PW.2) was attracted to the spot on hearing the hue and cry whereupon the petitioner ran away with the kirpan.

Jagir Singh removed his son Sukhwinder Singh to the Civil Hospital, Amritsar where Dr. N.K. Aggarwal, Senior Medical Officer medically examined Sukhwinder Singh and prepared the Medico Legal Report PW. 3/1. According to the said Doctor there were eight injuries found on the person of Sukhwinder Singh out of which injuries No. 1 to 7 were simple in nature and injury No. 8 was grievous one.

On the receipt of the information Sub Inspector Hukam Singh went to the hospital on 6.10.1991 and after obtaining the opinion of the Doctor recorded the statement of Sukhwinder Singh which is Ex.PA. Endorsement Ex.PW.4/B was made thereunder on the basis of which formal F.I.R. Ex. PW.4/C was recorded. Sub Inspector Hukam Singh prepared rough site plan Ex. PW.4/D in respect of the place of the occurrence and recorded the statements of the witnesses and completed the investigation. A challan for the offences under Sections 326/324 of the Indian Penal Code was submitted to the court.

A charge under Sections 326/324 of the Indian Penal Code was framed against the petitioner by the trial court to which he pleaded not guilty and claimed trial.

In support of its case, prosecution examined Sukhwinder Singh the injured (PW.1), his father Shri Jagir Singh (PW2), Dr. N.K. Aggarwal (PW.3) and the Investigating Officer Sub Inspector Hukam Singh (PW4). After the close of the prosecution case the petitioner was examined under Section 313 Cr.P.C. In his said statement he denied the allegations of the prosecution and pleaded that he alongwith his wife was present in his field when Sukhwinder Singh accompanied with other persons came there and wanted to make a water course in the land forcibly to which he objected. He further stated that the complainant gave injuries to him and his wife. He then explained that in the exercise of right of private defence of his person and property and the person of his wife, he caused injuries to Sukhwinder Singh.

While placing reliance upon the prosecution evidence and disbelieving the defence version, the trial Magistrate convicted and sentenced the petitioner for the offence under Sections 326/324 of the Indian Penal Code as stated above. The appeal filed by the petitioner against the said conviction and sentence did not find favour with the appellate Court and the same was dismissed by judgment dated 18.7.1995.

I have heard the learned counsel for the petitioner as well as the learned counsel for the State and have perused the record of the trial court.

Mr. Pheruman learned counsel for the petitioner rightly has not assailed the findings of the trial court on merits, but maintained that the offence under Section 326 of the Indian Penal Code was not made out as the injury No. 8, alleged to be grievous, was not subjected to Xray examination. He has also maintained that this injury on the right leg cannot be said to be dangerous to life in any manner nor there is any evidence on the record to show that this injury has resulted in severe agony and pain for more than 20 days. On the other hand Mr. I.P.S. Sidhu, learned Assistant Advocate General Punjab has supported the finding of the trial court contending that the testimony of Dr. N.K. Aggarwal (PW3) goes to show that in injury No. 8 was underlying cut of size 2 cm x 1 cm which was sufficient to hold that this injury was grievous in nature.

To appreciate the above referred controversy it would be worthwhile to reproduce injury No. 8 observed by Dr. N.K.Aggarwal (PW3) as under:

"8. An incised wound 3 cm x 1cm in the middle one third right leg, 15 cm above the joint ankle and was bleeding. Underlying was cut 2 cm x 1cm."

In his crossexamination, Dr N.K. Aggarwal (PW3) has admitted that this injury was not subjected to Xray examination, although other injuries were got Xrayed and were found to be simple in nature. No explanation has been given by the said Doctor as to why not injury No. 8 was got Xrayed to be sure regarding its nature. In the other words, injury No. 8 has been opined to be grievous on the basis of visual examination only.

In State of Punjab v. Manga Singh and another, 1992(2) Recent Criminal Reports 144 , an identical question arose for consideration of a Division Bench of this Court. In that case injury was caused with Gandasi cutting bones. The Doctor had declared injury grievous without Xray examination to probe depth. While placing reliance upon a judgment of this court rendered in Jassa Singh and another v. State of Punjab, 1983(1) Recent Criminal Reports 406 , it was held that opinion of the Doctor based on casual observations cannot be accepted and injury could not be termed as grievous. Similar view has been expressed in Raj Singh alias Raju v. State of Punjab, 1992(2) Recent Criminal Reports 433 : 1993(1) C.C. Cases 221 (H.C.) wherein reliance was placed upon two earlier judgments of this court rendered in Dula Singh and others v. The State of Punjab, 1986(1) Recent Criminal Reports 72 y and Teja Singh and others v. The State of Punjab, 1986(1) Recent Criminal Reports 293 .

In the present case, admittedly injury No. 8 was not got Xrayed by the Doctor for the reasons best known to him. His opinion to the effect that injury No. 8 was grievous in nature is based upon his visual examination which cannot be said to be sufficient to hold that injury in question was grievous one. In this regard it is noteworthy that injury with sharpedged weapon on nonvital part of the body without extensive damage to the underlying bone cannot be said by any stretch of imagination having endangered the life of the injured. Both the courts below did not advert themselves on this legal aspect of the question at all.

As a result of the above discussion, it is held that injury No. 8 cannot be said to be grievous in nature and no offence under Section 326 of the Indian Penal Code is made out against the petitioner. Therefore, his conviction and sentence for the offence under Section 326 of the Indian Penal Code are hereby set aside.

Then the learned counsel for the petitioner has argued that the sentence imposed upon the petitioner for the offence under Section 324 of the Indian Penal Code is excessive in nature in the facts and circumstances of the case. From a perusal of the record it is evident that during the course of this incident the petitioner and his wife had also received certain injuries. There was an incised wound also on the person of the petitioner as per testimony of Dr N.K. Aggarwal (PW.3). There is definite finding of the learned Appellate Court that the petitioner had exceeded right to private defence. These circumstances are enough to reduce the sentence of the petitioner also.

As a result of the above discussion, this Revision is allowed in part. Conviction and sentence of the petitioner for the offence under Section 326 of the Indian Penal Code are set aside. Conviction of the petitioner under Section 324 of the Indian Penal Code is affirmed. The sentence imposed upon the petitioner for the offence under Section 324 of the Indian Penal Code, is hereby reduced to the period of sentence already undergone. Fine, if any paid, be refunded to the petitioner.