Balwant Singh and Others vs State of Punjab

A.S. Bains, J.—The only point urged in this petition is that the Petitioners cannot be convicted and sentenced u/s 326, Indian Penal Code, as recorded by the Courts below. According to the doctor the following injuries were caused to the complainants:

Incised wound 4 cm x 1 1/2 cm x bone deep on the front of left leg 14 cms below the knee. Advised X-ray.

Incised wound 2 cm x 1/4 cm x skin deep on the back of left leg. 12 cms below the knee.

Incised wound 2 cm x 1/4 cm x 3/4 cm on the front of left middle finger first phalynx. Advised X-ray.

Incised wound 2 cm x 1/4 cm x 1/4 cm on the front of left ring finger first phalynx.

Contusion 5 cm x 1/4 cm on thenar eminance, of righthand.

Abrasion 1 1/2 cm x 1/4 cm on the back right shoulder 9 cm below the top of shoulder.

Contusion 27 cm x 2 cm on both sides of back of chest 9 cm below the level of neck.

Contusion 8 cm x 3 cm on back of the left shoulder, 4 cm below the top of the shoulder.

Contusion and abrasion 12 cm x 1 cm on the back of the left shoulder, 4 cm below injury No. 8.

Contusion and abrasion in area 11 cm x 10 cm on the back of the left chest, 3 cm below injury No. 9. Advised X-ray.

Abrasion 12 cm x 1/2 cm on both sides or back of chest lower part.

Abrasion 6 cm x 1/2 cm on the back of right side of chest lower part.

Contusion 7 cm x 1 cm on the back of the left fore-arm, 8 cm below the elbow.

Abrasion 3 cm x 1/2 cm, on the left side of head 18 cm above the neck and 5 cm away from the mid line.

The doctor further stated that all abrasions were red in colour and incised wounds bled on touch. Injury No. 1, 3 and 10 were kept under observation while others were declared simple. They were caused within 12 hours. Injuries No. 1, 2, 3 and 4 were caused by sharp edged weapon. X-Ray examination showed a partial cut of left tibia bone underneath injury No. 1 was declared as grievous. No fracture was detected under inquiry No. 3 and 10 and these were declared as simple.

Thus it is clear that the doctor has not said in his statement or in his cross-examination that there is a fracture in bone. He only says that there is a partial cut of left tibia bone. Section 320 Indian Penal Code defined grievous hurt in the following terms:

The following kinds of hurt only are designated as "grievous."

Seventhly: Fracture or dislocation of a bone or tooth." From the reading of the above provisions, it is plain that a hurt can be designated as grievous only if there is fracture or dislocation of a bone or tooth. In Mutukdhari Singh and Ors. v. Emperor AIR 1942 Patna 376 it was observed as under:

Where the evidence is merely that a bone has been cut and there is nothing whatever to indicate the extent of the cut whether deep or a mere scratch upon the surface it is impossible to infer from that evidence alone that grievous hurt has been caused within the meaning of the definition in Section 320.

In AIR 1937 253 (Rangoon) it was observed as tinder:

In my view there is nothing this which even remotely suggests a fracture. The primary meaning of the word "fracture" is "breaking" though it is conceded that it is not necessary in the case of a fracture of the skull bone that it be divided into two separate parts because it may consist merely of a crack; but the point is that if it is a crack it must be a crack which extends from the outer surface of the skull to the inner surface. I am, therefore, of the opinion that the accused were guilty of offences u/s 324, I.P.C., and Section 324 read with Section 109 IPC.

As observed earlier, there is only partial cut of left tibia bone underneath injury No. 1, and there is nothing in the medico-legal report indicating the extent of the cut, whether deep or mere scratch on the surface. In the absence of the extent of the cut, fracture or dislocation of the bone, it is not safe to designate injury No. 1 as grievous. All other injuries were simple. Hence the offence does not come within the mischief of Section 326, Indian Penal Code. Accordingly the conviction and sentence of the Petitioners under Sections 326 and 326 read with 34 Indian Penal Code are set aside. They are guilty of offences punishable under Sections 324 and 323 read with Section 34 Indian Penal Code only.

Mr. Gandhi has prayed that they are first offenders and the dispute is between the nephews and the uncle and that they may be released on probation. Mr. Bhatia, the learned Counsel for the state does not oppose this prayer to release the Petitioners on probation. Accordingly, in view of the circumstances of this case, as the near relations are involved, I direct that the Petitioners be released on probation of good conduct. The Petitioners are directed to furnish bonds in the sum of Rs. 1,000 each with one surety in the same amount to the satisfaction of the trial Court. They are further directed to appear and receive the sentences whenever called for during this period and they are directed to keep peace and be of good behaviour in the meantime. With this modification the petition is disposed of.