State of Punjab vs Manga Singh

S.D. Bajaj, J.

Around 9.00 a.m. on June 24, 1984, HC Hans Raj of Police Station City, Fazilka recorded within the precincts of Civil Hospital, Fazilka statement of Gian Singh injured which reads, "I am a resident of village Shatirwala and do labour. Last night at about 9.00 p.m. I returned home after finishing my work and having taken my bath. I came out of my house for purchasing some goods. I found Manga Singh S/o Mohinder Singh, Mazhabi and Rulda Singh S/o Kssar Singh, Mazhabi, residents of village Shatarwala standing along the well of Kashmir Lal Mahajan who is our neighbour. Manga Singh was armed with a Gandasi and Kulda Singh empty handed was also standing there. Rulda Singh asked me who I was. I replied that I was Gian Singh. On hearing me, Rulda Singh raised a lalkara saying, "what are you waiting for, go ahead and give him a blow." At this, Managa Singh came in front of my house and gave me a Gandasa blow which hit me on the joint of my left shoulder. I raised an alarm of "Mar Ditta, Mar Ditta" (Killed, Killed) upon which my neighbour Gurnam Singh S/o Jawala Singh and Paira Singh S/o Mahha Singh who were also coming to that side to attend some work reached there and gave call. At this, Manga Singh and Rulda Singh ran away from the spot with the weapon. The cause of grudge is that my father had employed Billy at Rs. Rs. 1200/ for one year, for grazing cattle. He had stopped to do his duty. My elder brother Manga Singh had gone to the house of Manga Singh S/o Mohinder Singh to settled the accounts. After an hour from this, Managa Singh and Rulda Singh came to me and they caused me injuries due to the grudge for demanding money. I am a complainant. Action may be taken."

on being charged with the commission of offences under Sections 326/34 and 506/34 of the Indian Penal Code, both the accused named Manga Singh and Rulda Singh pleaded `not guilty'' thereto and claimed to be tried. Vide its impugned judgment dated January 11, 1988, learned trial Court convicted accused Manga Singh of the commission of the offences under Sections 324 and 506/34 of the Indian Penal Code and his coaccused Rulda singh of the commission of the offences unders 324/34 and 506 of the Indian Penal Code. Both the convicted accused were sentenced to undergo rigorous imprisonment for a period of mine months each and individually fined Rs. 100/ for their convictions under Sections 324 and 324/34 of the Indian Penal Code respectively. In default of payment of fine each one of the two convicted accessed was ordered to undergo individually rigorous imprisonment for a further period of two months. In respect of their convictions under Sections 506 and 506/34 of the Indian Penal Code each one of the two convicted accused was individually awarded rigorous imprisonment for a period of three months and fined Rs. 100/ each. In default of payment of fine each one of the two convicted accused was individually ordered to undergo rigorous imprisonment for a further period of one month. Substantive sentences of imprisonment awarded to the two accused on both the counts were, however, ordered to run concurrently. Feeling aggrieved from the impugned judgment of acquittal under Section 326/34 of the Indian Penal Code, the State of Punjab has filed Criminal Appeal No. 280DBA of 1988 in this Court.

We have heard Shri Randhir Singh, AAG Punjab for the appellant State, Shri M.P.S. Gill, Advocate, for the two respondents and perused the entire relevant material on record very carefully.

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 underlaying bone was cut along the direction of the would 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 conscious. 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, 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 seas declared previous without any Xray 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 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 xray. In case Jassa Singh and other v. State of Punjab, 1983(1) Recent Criminal Reports 406 : 1984 (1) CLR, 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 Xray. In these circumstances, it would not be safe to allow the conviction of the appellants under Section 326 IPC, to stay."

In the authority cited Hon''ble Mr. Justice K.P. S. Sandhu (as his lordship then was) observed. "Mr. P.S. Mann, Senior, Advocate, learned counsel for the appellants has not seriously contested the conviction of the appellants. All that he says is that in view of the medical evidence, the case does not fall within the mischief of Section 326, Indian Penal Code. He has brought to my notice statement made by Dr. Surinder Kumar Mahajan, PW2 while being crossexamined. According to him injuries Nos. 1 and 2 were not advised to be X rayed and he probed these injuries with his finger only. He further stated that he did not mention the width of the bone cut neither did he mention the extent of the width of the cut or the depth of the cut. Strangely enough the xray was performed only in case of three injuries which were declared simple earlier by the doctor. This doctor further deposed that it was not possible to measure the depth of the cut of bone without Xray. He says that while giving the opinion that the injury proved dangerous to life, he did not examine the patient for the second time. I feel there is force in the contention of the learned counsel for the appellants. The doctor himself could not deny that the depth of the cut could not be given in examination by naked eye specially when a surer opinion could be obtained after getting the injuries Xrayed. In this situation, it would not be safe to allow the conviction of the appellants under Section 326 Indian Penal Code, to stay. I consequently acquit all the three appellants of the charges under Section 326 and 326 read with Section 34, Indian Penal Code but maintain the conviction of Bhira appellant under Section 324, Indian Penal Code and of Jassa Singh and Jagir Singh appellants under Section 324 read with Section 34 Indian Penal Code." Reasoning supporting Xray of the injury having not been got done by the medical expert, the opinion based on mere visual observation falls through and was rightly ignored by the learned trial Court. The injury inflicted by Manga Singh on the person of Gian Singh cannot, therefore, be termed grievous. Finding recorded by the learned trial Court in this regard is affirmed.

In result, the State appeal gets wholly bereft of any merit therein and is consequently dismissed.