State of Punjab vs Jiwan Singh

A. S. Nehra, J.

The Additional Sessions Judge, Amritsar, vide his judgment dated August 6, 1987 acquitted Jiwan Singh, Bakhshish Singh, Sukhwinder Singh, Dalbir Singh and Joginder Singh, respondents herein under Sections 326 and 326/34 of the Indian Penal Code but maintained their convictions under Sections 323 and 324 read with Section 34 of the Indian Penal Code as recorded by the Judicial Magistrate I Class, Amritsar, on 25.10.1986. The Additional Sessions Judge ordered the respondents to be released on probation of good conduct for a period of one and a half years on their furnishing personal bonds in the sum of Rs. 10,000/ each with one surety in the like amount each, undertaking to appear in the Court and to receive sentence as and when called upon to do so and to keep peace and be of good behaviour in the meantime. They were also directed to pay a sum of Rs. 500/ each as costs of the proceedings.

State of Punjab has filed this appeal against the acquittal of the respondents under Sections 326 and 326/34 of the Indian Penal Code.

Briefly stated, the prosecution case is as follows :

Jagir Singh, complainant, PW1 had purchased a buffalo from Fauja Singh for a sum of Rs. 2,300/. After striking the deal he along with Gurbaksh Singh, Karnail Singh, Kahan Singh came to the house of the complainant. After taking the meals at about 8.p.m. all of them came out of the house of the complainant. Bakhshish Singh, accused armed with Gandasi, Dalbir Singh accused armed with Barchhi, Chhinda Singh armed with dang and Jiwan Singh, accused also armed with a dang came there. They were hurling abuses at that time. Jiwan Singh, accused raised a lalkara that Jagir Singh be taught a lesson for deposing in Court. Bakhshish Singh, accused gave a gandasi blow which hit on the head of the complainant. Dalbir Singh, accused gave a barchhi blow which hit on the right leg of the complainant. Chhinda accused gave two dang blows which hit the right thigh and little finger of the left hand of Jagir Singh. Jiwan Singh, accused also gave dang blows which hit the right upper arm of the complainant. The complainant raised raula which attracted Balwant Singh, PW3 and Dial Singh PW5 at the spot. They tried to rescue the complainant. Joginder Singh, accused armed with kirpan, Avtar Singh, accused and Dalip Singh accused empty handed also came to the spot. Joginder Singh gave kirpan blow to Balwant Singh which hit on the left side of his head. Dalip Singh gave a brick blow which hit on the face of Karnail Singh. Avtar Singh also gave a brick blow which hit Dial Singh on his right hand. A number of people assembled at the spot. They got the complainant and other injured rescued from the accused. The motive of occurrence has been alleged to be the enmity between the complainant and the accused due to the fact that the complainant had appeared in a case against Jiwan Singh for causing injuries to Balkar Singh.

Complainant and other injured were taken to the hospital by Kashmir Singh, their brother, where they were medically examined by Dr. A. C. Sood, PW7, Dr. A. C. Sood found the following injuries on the person of Jagir Singh :

(1) Incised wound 3" x 1/4" x underlying bone with sharp margin was present in oblique direction on the right frontal bone of the head, 2" above the middle of the right eyebrow. Fresh clotted blood reddish in colour was present in the wound. The outer table of the underlying bone was sharply cut. Shafts and the roots of the hair were cut sharply. No dust in the wound.

(2) Swelling 1/4" in diameter was present dorsal surface of left middle finger on the proximal inter phalangeal joint.

(3) Incised would 3/4" x 1/10" x 1/8" deep with sharp margins was present in horizontal direction on the medial surface of right upper leg 11/2" above the right knee joint. Fresh clotted blood was present in the wound. No dust in the wound.

(4) Complaint of pain on the ulterior surface of left upper leg in its middle.

(5) Abrasion 1" present in oblique direction on the lateral surface of right upper arm in its lower one third covered with fresh clotted blood reddish in colour."

Injury No. 1 was declared grievous while injury Nos. 2 to 5 were declared simple. It was opined by the doctor that injury Nos. 1 and 3 were caused by sharpedged weapon while injury Nos. 2, 4 and 5 were caused by blunt weapon. The doctor prepared the M.L.R. of the injured Jagir Singh (Ex.PW7/A). Injured Karnail Singh was also examined by Dr. A. C. Sood and following injury was found on his person :

(1) Lacerated wound 11/2" x 3/4" x deep into mouth cavity with irregular margins present in oblique direction on the right half of upper lip in its middle. Fresh clotted blood present in the wound. The right lower two incisors started moving in its sockets. The upper lip was covered with swelling extending on the remaining portion of the right upper lip. Advised Xray face PA lateral view.

Injury No. 1 was kept under observation and opined to have been caused by blunt weapon. This injury was declared simple after receipt of Xray report. The M.L.R. of injured Karnail Singh was prepared by Dr. A. C. Sood which is Ex.PW7/D. On the examination of Balwant Singh, injured following injury was found on his person :

(1) An incised wound 11/4" x 1/4" x deep to underline bone with sharp margins was present in oblique direction on the left of the forehead in its middle. The wound started from middle of the left eye brow. The outer table of the underline bone bore a sharp cut half MM deep. Fresh clotted blood reddish in colour was present in the wound. No dust in the wound.

This injury was declared grievous caused by sharp edged weapon within a duration of 4 to 6 hours. On the medical examination of Dial Singh injured, following injuries were found on his person:

(1) Lacerated wound 11/4" x 1/6" x 1/8" deep with a regular margin was present in the oblique direction on the dorsal surface of terminal phalanx of right middle finger of right hand in its middle. Thick clotted blood reddish brown in colour was present in the wound. The wound was covered with swelling extending into middle phalanx Advised Xray of right middle finger of right hand.

This injury was kept under observation and opined to have been caused by blunt weapon within a period of 6 to 8 hours. The MLR of Balwant Singh, Exhibit PW7/G and that of Dial Singh injured, Exhibit PW7/1 were prepared by Dr. A. C. Sood in which the injuries have been mentioned.

The statement of the complainant Ex. P.A. was recorded by Joginder Singh, ASI on 1.1.1983 in the hospital on the basis of which formal F.I.R. Ex. PW8/B was recorded. In support of its case, the prosecution has examined as many as nine witnesses, namely, Jagir Singh, PW1, Karnail Singh, PW2, Balwant Singh, PW3, Gurbax Singh, PW4, Dial Singh, PW5, Saudagar Singh, PW6, Dr. A. C. Sood, PW7 Joginder Singh, ASI, PW8 and Mohinder Singh, H.C., PW9.

Accused in their statements recorded under Section 313 of the Code of Criminal Procedure denied the prosecution allegations and pleaded their false implication. It has been stated by Jiwan Singh, accused that he was present in his haveli on the day of occurrence at about 8 or 9 p.m.; that Fauja Singh, Jagir Singh, Karnail Singh, Jarnail Singh, Kashmir Singh, Balwant Singh and Dara Singh came there along with their respective weapons; that they caused injuries to his son Dalbir Singh and brother Jagat Singh and that Jagat Singh and Dalbir Singh caused injuries to them in their self defence. To the similar effect is the version of Dalbir Singh. Bakhshish Singh, accused stated that he was working as a Sub Inspector in Food and Supplies Department; that on the day of occurrence he was posted at Mandi Mattewal; and that he had been residing there along with his family because he was having the charge of Godowns with him and had to stay there during day and night. He has further stated that he was present at Village Mattewal on the day of occurrence, Accused examined Amrik Singh, DW1 and Dr. A. C. Sood, DW2 in their defence.

The Judicial Magistrate 1st Class, Amritsar held that the prosecution has proved its case beyond any shadow of doubt and convicted Bakhshish Singh and Joginder Singh under Section 326 of the Indian Penal Code, while Dalbir Singh, Sukhwinder Singh and Jiwan Singh were convicted under Section 326 read with Section 34 of the Indian Penal Code. Sukhwinder Singh and Jiwan Singh were also convicted under Section 323 of the Indian Penal Code for causing injuries to Jagir Singh. Dalbir Singh, Bakhshish Singh and Joginder Singh were also convicted under Section 323 read with Section 34 of the Indian Penal Code. Dalbir Singh, accused was also convicted under Section 324 of the Indian Penal Code for causing injuries on the person of Jagir Singh while Bakhshish, Sukhwinder Singh, Jiwan Singh and Joginder Singh were convicted under Section 324 read with Section 34 of the Indian Penal Code. Giving the benefit of doubt, accused Dalip Singh and Avtar Singh were acquitted by the Judicial Magistrate 1st Class, Amritsar on 25.10.1986.

Mr. S. S. Dhaliwal, DAG, Punjab has referred to the statement of Dr. A. C. Sood, PW7 in which he has opined that injury No. 1 on the person of Jagir Singh PW1 is grievous. The description of injury No. 1 is as follows :

"Incised wound 3" x 1/4" underline bone with sharp margin was present in oblique direction on the right frontal bone of the head 2" above the middle of the right eyebrow. Fresh clotted blood reddish in colour was present in the wound. The outer table of the underline bone was sharply cut. The shafts and the roots of the hair were cut sharply."

He has further submitted that the injury on the person of Balwant Singh injured has been opined by the doctor as grievous. The description of the injury is as follows :

"An incised wound 11/2" x 1/4" deep to underline bone with sharp margins was present in oblique direction on the left of the forehead in its middle. The wound started from the middle of the left eye brow. The outer table of the underline bone bore a sharp cut half MM deep. Fresh clotted blood reddish in colour present in the wound."

Mr. S. S. Dhaliwal has further submitted that in view of the statement of Dr. A. C. Sood declaring the injury as grievous, the learned Additional Sessions Judge has erred in acquitting the respondents under Section 326 of the Indian Penal Code. In support of his arguments, he has placed reliance on Hori Lal and another v. The State of U.P., AIR 1970 SC 1969. In particular the following passage was relied upon:

"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........So far as the depth of injuries 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."

Dr. A. C. Sood, PW7 in his crossexamination has stated that Xray was not necessary in this case for injury No. 1 on the person of Jagir Singh. He has further stated that Xray is the assurance/test for deep cut on inner table; that it was superficial cut on the outer table and that in Xray superficial cut seldom comes. During the reexamination he has further stated that the outer table of skull was cut and this cut was visible with the naked eye but he has not measured the same as it was immeasurable and that the cut present on the outer table is always superficial. Dr. A. C. Sood has further stated that the possibility of incised wound on the person of Balwant Singh caused by a fall is very remote, nor he could rule out the possibility. He has further stated that there is no Xray for this injury and this injury is also superficial.

Mr. P. S. Hundal, learned counsel for the respondents, has contended that the medical evidence shows that Jagir Singh, PW1 and Balwant Singh, PW3 did not sustain any grievous injury. Learned counsel for the respondents has further contended that injury No. 1 on the person of Jagir Singh PW1 is superficial and for this injury there is no Xray, therefore, no offence under Section 326 of the Indian Penal Code is made out against the respondents. Qua the injury of Balwant Singh, his argument is also to the same effect that there is no Xray for this injury and this injury is also superficial. In support of his arguments he has relied upon Kailash Prasad Kanodia and another v. State of Bihar, AIR 1980 Supreme Court 106 and State of Punjab v. Manga Singh and another, 1992(2) Recent Criminal Reports 144 .

After hearing learned counsel for the parties, we hold that injury No. 1 of Jagir Singh and injury of Balwant Singh are superficial as has been stated by Dr. A. C. Sood and these injuries are not of serious nature.

In view of the above discussion, we hold that no offence under Section 326 of the Indian Penal Code is made out and the appeal is hereby dismissed.