Bir Singh vs State of Punjab

M.M. Punchhi, J.

This judgment shall dispose of Criminal Revision Petition Nos. 896 and 924 of 1986 since they arise out of the same order.

Bir Singh and Nirmal Singh accused stood trial before a Judicial Magistrate Ist Class, Jullundur for offences under Sections 326 and 324 with the said of Section 34, Indian Penal Code. The broad allegations against the accused were that both of them, while armed with naked kirpans, stopped Sohan Singh PW who was going on a cycle, and then caused him as many as seven injuries. The occurrence took place on 27.5.1982. The injured was examined by Dr. D.S. Toor, Surgical Specialist, Civil Hospital, Jullundur at 10.40 p.m. the same day. Those seven injuries are described hereafter :

An incised wound 3" long and 1" wide on the face starting from the centre of the upper lip extending upward obliquely laterally to maxilary area the left side. Cheeks sliced off. Buccal cavity exposed and open. Fresh bleeding was present.

An incised wound 1" x 1" on the centre of the lower %p extending down to chin. Fresh bleeding was present.

An incised wound 3" x 1" on the dorsum of the left hand between the first and second metacarpal. X4ay was advised.

Incised wound 2" x 11/2" on the left frontal area of the skull.

An incised wound 1" x 11/2" on the angle of the right mandible.

An incised wound 1" x 1" on the dorsum of the middele finger of the right hand.

An incised wound 1 cm x 1 cm on the dorsum of the right thumb.

All the injuries were caused with sharpedged weapons as they appear plainly. Injuries Nos. 1 and 2 were declared grievous. The doctor''s opinion further was that all the injuries on the person of Sohan Singh would have proved fatal to his life if timely medical treatment had not been given to him.

Now despite the doctor declaring injuries 1 and 2 grievous, which injuries were obviously on the face and cheeks of the victim stood sliced off, the learned trial Magistrate ignored to apply clause sixthly of Section 302, Indian Penal Code. Permanent disfiguration of the head or face is designated as a grevious hurt under the said provision. The learned Magistrate rather applied clause eightly to conclude that grevious hurt had been caused to the victim. 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 is also designated as grevious hurt. The word of the victim was accepted by the trial Magistrate that it were the petitioners who had caused him hurt. Accordingly, they were convicted for offences under Sections 326 and 324, Indian Penal Code, and sentenced variously.

The petitioners filed an appeal in the Court of Session which went to Shri G.S. Khurana, Additional Sessions Judge, Jullundur. The learned Judge was persuaded to take the view that the opinion of Dr. Toor that if timely treatment had not been given to the injured, all injuries could have proved fatal to his life, could be taken at its face value. He went on to observe that there was absolutely no material which could justify this opinion. On that basis, he took the view to wipe out conviction under Section 326, Indian Penal Code. When confronted with the opinion of Dr. Toor declaring injuries Nos. 1 and 2 grevous, the learned Judge entertained a doubt in his mind that since there was no injury to any bone in respect of these injuries, these injuries could not be termed as grievous. On that analysis, he took the view that no offence under Section 326, Indian Penal Code, had been made out and he then maintained the conviction of the petitioners only for simple hurt under Section 324, Indian Penal Code.

The petitioners filed Criminal Revision No. 896 of 1986 before this Court. At motion hearing, I issued suo motu notice for revision for altering the conviction back to section 326, Indian Penal Code. That is the subject matter of Criminal Revision Petition No. 924 of 1986. These matters have thus inevitably to be disposed of together.

Though learned Counsel for the petitioners has ventured to address me on the merits of the case, I am not inclined to express any opinion thereon, for it might lead to prejudice in view of the course. I am about to adopt. Suo motu revision would be accepted inasmuch as the acquittal of the petitioners under Section 326, Indian Penal Code, would need setting aside. The trial Court did not apply its mind to clause sixthly of section 320, Indian Penal Code. The appellate Court did but confused this independent clause with clause seventhly which provides fracture or dislocation of a bone or tooth to be designated as grievous hurt. The trial Court did admit evidence in that regard on the file but somehow did not apply its mind particularly to this aspect of the case. It was an error though but the concluding the conviction to be under Section 326, Indian Penal Code, the error stood mitigated. When the matter went to the appellate Court, there was application of mind in that regard but the error crept in by fusing the two clauses sixthly and seventhly of Section 320, Indian Penal Code. Thus, the major error is that of the appellate Court, for it was that Court which handed down the order of acquittal. It is that order which is being set aside in exercise of power of revision. Necessarily, that Court had to be asked again to rehear the appeal. Such course is permissible in view of the observations of their Lordships of the Supreme Court in K. Chinnaswamy Reddy v. State of Andhra Pradesh and another, AIR 1962 Supreme Court 1788 :

"But there may be another type of case namely, where the trial Court has convicted the accused while the appeal Court has acquitted him. In such a case if the conclusion of the High Court is that the order of the appeal Court must be set aside, the question is whether the appeal Court should be ordered to rehear the appeal after admitting the statement it had ruled out or whether there should necessarily be a retrial. So far as this is concerned, we are of the opinion that it open the High Court to take either of the two courses. It may order a retrial or it may order the appeal Court to rehear the appeal. It will depend upon the facts of each case whether the High Court would order the appeal Court to rehear the appeal or would order a retrial by the trial Court."

Drawing strength from the aforesaid observations, I would set aside the acquittal as aforesaid and direct the learned Additional Sessions Judge, Jullundur to rehear the appeal of the petitioners against the order of the learned Magistrate. For facilitating the said course, the entire order of the learned Additional Sessions Judge, Jullundur is set aside, for he has to apply his mind afresh on the facts of the case and then proceed with his judgment as thinks fit. It is thus ordered accordingly. Parties through their counsel are directed to put in appearance before the learned Additional Sessions Judge, Jullundur on 8th September, 1986. If there was an interim order of bail while the appeal was pending before the learned Additional Sessions Judge, Jullundur, that order will stand revived and the petitioners may take benefit of the same, if so advised.

JUDGMENTed accordingly.