Gokha Singh vs State of Punjab

R.L. Anand, J.

Gokha Singh and Narain Singh have filed the present revision and it has been directed against the judgment dated 27.1.1999 passed by the Court of Additional Sessions Judge, Mansa, who maintained the conviction of the petitioners under Sections 325, 323 and 452 read with Section 34 IPC. For the offence under Section 325 I.P.C. Gokha Singh petitioner was sentenced to undergo RI for 9 months and to pay a fine of Rs. 200/ and petitioner Narain Singh was sentenced to undergo RI for a period of 6 months and to pay a fine of Rs. 200/ under Section 325 read with Section 34 IPC. In default of payment of fine both the petitioners were directed to further undergo RI for two months. Further the petitioners were sentenced to undergo RI for a period of 6 months each and to pay a fine of Rs. 100/ each and in default of payment of fine each one of them was directed to further undergo RI for one month. Petitioner Gokha Singh was also sentenced to undergo RI for a period of 2 months under Section 323/34 IPC, and petitioner Narain Singh was sentenced to undergo RI for a period of 3 months under Section 323 IPC.

The petitioners have challenged the conviction under Section 325 IPC mainly on the ground that there was no satisfactory evidence led on the record by the prosecution that the injuries suffered by Gurcharan Singh were grievous in nature and in these circumstances the trial Court as well as the first appellate Court committed patent illegality in convicting the petitioners under Section 325 IPC. The learned counsel for the petitioners submitted that the doctor has given the opinion clinically about the fracture of Gurcharan Singh and the injury of the injured was not kept under observation nor any x ray was done. The doctor committed a patent illegality by declaring the injury grievous in nature without even mentioning as to which of the bones has been affected. The counsel maintained that the doctor did not give any data before coming to the conclusion about the fracture. In support of his contention the learned counsel for the petitioners has relied upon State of Punjab v. Manga Singh and another, 1992(2) RCR (Criminal) 144 and Raj Singh @ Raju and another v. State of Punjab, 1992(2) RCR (Criminal) 433. Reliance has also been placed upon Jassa Singh and others v. State of Punjab, 1983(1) RCR 406. Incidently this authority was earlier discussed by their Lordships in 1992(2) RCR (Criminal) 144.

Before I proceed further, I would like to quote the observations of the Hon''ble Division Bench as contained in para No. 4 of the judgment, which are as under :

"4. The sole point for determination in this appeal is if the single injury inflicted by Manga Singh on the person of Gian Singh injured could be termed grievous or not. Dr. Inder Mohan Chalana PW3 states "There was an incised wound 8 cm x 3 cm into bone deep on left shoulder joint starting from above and going on the back side obliquely towards scapular side. The underlying bone was cut along the direction of the wound in its middle measuring 7 cm x 15 cm. Movement of the left shoulder joint was painful and restricted. On examining the wound a bleeder was bleeding. The area surrounding the wound was tender. Patient was unconscious. Pulse was 92 per minute. B.P. was 116/76." In terms of the observations made by this Court in Jassa Singh and others v. State of Punjab, 1983(1) Recent Criminal Reports 406 : 1984(1) Chandigarh Law Reporter (sic), the learned trial court held the injury to be simple and therefore punished the accused under Sections 324 and 324/34 of the Indian Penal Code because the injury was caused with a Gandasa, an instrument for cutting from its sharp side. Relevant observations made by the learned trial Court read :

"Lastly it has been contended by the defence counsel that in view of medical evidence the case does not fall within the mischief of Section 326 IPC. In this case no xray was done to prove the nature of injury on the person of the complainant. In M.L.R. it is mentioned that the underlying bone was cut along the direction of the wound. The injury was declared grievous without any x ray examination. When PW3 Dr. Inder Mohan Chalana, appeared in the witness box he stated that no xray was conducted as the bone cut was visible with a naked eye. In these circumstances the contention of the defence counsel has the sufficient force. It is quite possible that the bone underneath the wound might be having only scratch or superficial cut. No Xray was done to probe the depth of the cut. The observations with a naked eye cannot be accepted when a surer opinion could be given after getting injury xrayed. In case Jassa Singh and others v. State of Punjab, 1983(1) Recent Criminal Reports 406 : 1984(1) CLR (sic) the injuries were declared grievous on the basis of probing the same with finger only and no xray examination was done to ascertain the depth of bone cut. In these circumstances, it has been held that the doctor himself could not deny that the depth of cut could not be given in examination by a naked eye especially when surer opinion could be obtained after getting the injury xrayed. In these circumstances, it would not be safe to allow the conviction of the appellants under Section 326 IPC, to stay."

The ratio laid down by the Hon''ble Single Judge has been given in para No. 7 as under :

"7. A bare perusal of injury No. 1 leaves no doubt the Doctor Singla had failed to mention the extent of the cut to the bond (bone ?) of the left shoulder what to say of stating as to which portion of the bone was involved. Admittedly the injured was not subjected to xray examination for ascertaining the extent of cut to the bone under this injury. Under these circumstances it cannot be said by any stretch of imagination that the bone was fractured or dislocated as provided under Clause Seventhly to Section 320 of the Indian Penal Code. The Trial Court had found this injury to be grievous in nature on the opinion of the doctor that it had endangered the life of Parampal Singh. In this regard it is notworthy that the injury with sharp edged weapon on a nonvital part of the body like shoulder without extensive damage to the underlying bone cannot be said by any stretch of imagination, having endangered the life of the injured. It is not the case of the prosecution that the injured had suffered bodily pain for more than 20 days due to this injury. On the other hand the evidence of Doctor Rajinder Kumar Singla reveals that injured was unable to move his left arm till 11.9.1987. Occurrence having taken place on 30.8.1987, it transpires that for about twelve days the injured was not able to move his left arm. The mere fact that the injured remained under the treatment of this Doctor till 22.9.1987 is of no significance as there is no indication from the evidence of Doctor Singla or of Parampal Singh injured that the injured remained in servere bodily pain for more than 20 days or was unable to follow his ordinary pursuits of life as envisaged by clause Eighthly to Section 320 of the Indian Penal Code. Under these circumstances, the findings of the trial court regarding injury No. 1 being grievous in nature are not sustainable. On the other hand, the accusedappellants are guilty of the offence punishable under Sections 324, 324/34, 323 and 323/34 of the Indian Penal Code as the case may. The above referred view is also supported from the finding of the Apex Court in Kailash Prasad Kanodia and another v. State of Bihar, AIR 1980 SC 106. In that case the conviction of the appellants for an offence under Section 326 of the Indian Penal Code was set aside as the Doctor did not find any fracture of a serious nature."

Both the judgments I have gone through, but are distinguishable on the face of it. Dr. Gurdarshan Singh was the person who medically examined Gurcharan Singh injured and he gave the findings as follows :

"Fracture of left fore arm. Arm is swelled. There is small overlying abrasion. Nature of injury is grievous caused by blunt weapon and the probable duration is within 24 hours."

This witness was crossexamined by the accused. Not a single question was put to the witness about his opinion. The trend of the crossexamination shows that the accused admitted the factor of fracture suffered by Gurcharan Singh.

The doctors are experts. By refering a patient for xray examination they are seeking supplementary opinion as to whether the injury is grievous or not. In the present case the doctor declared injury No. 1 on the person of Gurcharan Singh as grievous by holding that there was a fracture of the left fore arm and the said arm was swelled. There was no difficulty on the part of the Courts below to act upon the oral testimony of the doctor when he has specifically stated that the injury was grievous in nature and especially when this aspect of the case was not seriously challenged by the accused in the trial Court. With regard to the objection of the learned lawyer that there was no evidence about the extent of fracture, I would like to refer to the judgment of the Hon''ble Supreme Court in Hori Lal and another v. The State of U.P., AIR 1970 SC 1969. In para No. 7 of the judgment the Hon''ble Supreme Court made the following observations :

"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, it would amount to a fracture within the meaning of Clause 7 of Section 320. What Court has 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 Hon''ble Supreme Court overruled the observations of Rangoon High Court made in Po Yi Maung v. Ma E. Tin, AIR 1937 Rang 253 and Patna High Court made in Mutukdhar Singh v. Emperor, AIR 1942 Patna 376. In the present case the doctor has clinically given the opinion that the injury on the person of Gurcharan Singh was grievous in nature. At no point of time even the accused made a request to the trial Court or before the appellate court for the re examination of the injury from any doctor or board of doctors. In this view of the matter, I am of the considered opinion that the conviction of Gokha Singh under Section 325 IPC and Narain Singh under Section 325 read with Section 34 IPC was rightly maintained by the courts below.

In the light of above, I do not find any merit in this revision and dismiss the same in toto.