minal Appeal No70 of 1968
Appeal by special leave from the judgment and order dated October 6 1967 of the Allahabad High Court Lucknow Bench in Criminal Appeal No 164 of 1966
RK Garg SC Agarwal and Uma Dutta for the appellants
OP Rana for the respondent
238 The Judgment of the Court was delivered by Jaganmohan Reddy J
This appeal by special leave is directed against the judgment of the Allahabad High Court setting aside the conviction of Hori Lal and Bisram under section 307 read with section 34 of the IPC and instead convicting them under section 326 read with section 34 IPC and sentencing each of them to rigorous imprisonment for 5 years
The appellants
who are the residents of Bhitwa Gadan Khera are friends belonging to the same party
It was alleged that on June 14 1964 Bisram s cattle strayed into the field and damaged the crop of Deo Dutt who is the nephew of Sagar Singh and Jeer Bahadur
In respect of this damage Deo Dutt and his partner Ram Bharose
complained to Bisram who along with some other persons went to the house of Deo Dutt and threatened him and the members of his family including Jeet Bahadur and Sagar Singh
Thereupon Deo Dutt lodged a complaint in the police station
Because of this complaint relations between the parties became strained as a result of which the accused stopped working for Jeet Bahadur and Sagar Singh and even asked the other members of his beradari to follow suit
On March 29 1965 at about 530 pm Jeet Bahadur PW 2 along with his laborer Sri Pal deceased was reaping the harvest
The field of Sagar Singh PW 1 is situate just adjacent to the field of Jeer Bahadur with only a chak road between their fields
It is the prosecution case that on that day both the accused armed with kantas went to the field of Jeet BahAdur and challenged him
Immediately thereafter they began to deal kanta blows on Jeet Bahadur
Jeer Bahadur PW 2 cried out whereupon Sagar Singh PW 1 hearing the shouts rushed to his aid
Maya Ram PW 3 and Himachal and Ram Pal who were nearby also rushed to the aid of Jeet Bahadur
Accused Bisram is said to have fired a revolver at Sagar Singh but he did not receive any inquiry
Thereafter the accused ran away towards the village
As Jeet Bahadur was injured Sagar Singh PW 1 took him to the police station and there lodged a report exhibit Ka 1 at about 955 pm on March 29 1965
The investigation officer Bhanu Prakash Sharma PW 5 investigated the crime
prepared site plan recorded statements of the witnesses and seized blood stained mud
Jeet Bahadur was admitted to the District hospital at Unnao
Dr Srivastava examined him on March 30 1965 at 830 am and found as many as 10 injuries of which injuries 2 to 7 were incised wounds injuries 1 and 9 contusions and injuries 8 and 10 abrasions
All the incised injuries except No 7 showed that the bones had been cut
These injuries are as follows  2
Incised wound 13 X 1 X bone vertically on the right half forehead just above the right eye brow
239 3
Incised wound 1 14 12 bone cutting the underlying bone lower p art left humerus just above the left elbow on the back of left arm
Incised wound obliquely 5 X 2 X bone cutting the underlying radius and above left in the middle of the left forearm back
Incised wound 5X IX bone on the back of the left forearm lower I3rd
Slightly obliquely cutting both the bones of left forearm
Incised wound 4 12X 1 bone on the left leg middle back and laterally cutting the underlying tibia bone shaft
 The defence of the accused is that they had been falsely implicated
The prosecution examined Sagar Singh PW 1 Jeet Bahadur PW 2 and Maya Ram PW 3 as eye witnesses and since Sri Pal one of the eye witnesses died after his evidence was recorded by the committing magistrate his deposition was admitted and treated as evidence under section 33 of the Evidence Act exhibit Ka 11
The learned Sessions Judge
believed the eye witnesses and relying upon exhibit Ka 3 convicted the accused under section 307 read with section 34
The learned Judge however acquitted them of the second charge of attempting to murder PW 1 with pistol
In this appeal Mr SC Agarwala learned counsel for the appellants contends firstly that the injuries as found by the doctor do not justify the conviction of the appellants of grievous hurt inasmuch as there is no evidence that any of the bones was fractured or that the injured person was disabled for 20 days or more secondly that the contusions found on PW 2 would clearly belie the evidence of the eye witnesses that the injuries were inflicted by a kanta and thirdly that the deposition of Sri Pal ought not to have been admitted in evidence under section 33 because the death of Sri Pal has not been strictly proved
The main question which requires to be determined in this case is whether there is sufficient evidence to establish that he appellant had caused the injuries found on PW 2 and if so having regard to the injuries what is the offence which the appellants have  committed
It appears to us that there is sufficient credible evidence of the eye witnesses to prove beyond doubt that the appellants had caused injuries to PW 2
Even if the evidence of PW 1 and PW 2 who
are brothers of whom PW 2 is the victim is for the moment not considered there is no reason why the evidence of PW 3 Maya Ram ought not 240 to be relied upon
According to Maya Ram he was in the Kallian when he heard the cries of Jeet Bahadur and rushed
He says it was the time of about 5 or 530  pm
I heard an alarm raised in the field of Jeet Bahadur
I and Himachal ran to that side
Ram Pal was coming up running from the western side
In the field of Jeet Bahadur I saw Bisram and Hori Lal accused present in court beating Jeet Bahadur with kantas
We raised alarm
After assaulting Jeet Bahadur Hori Lal and Bisram accused went away towards the east
Sagar Singh was coming up running from his chak
Sagar Singh was raising alarm
Bisram accused fired the pistol at Sagar Singh but Sagar did not sustain any injury
I saw injuries on the body of Jeet Bahadur
After it we took Jeer Bahadur to Hasanganj on a cot
 The witness was cross examined at length but now here has it been suggested that he is an interested witness or he is speaking untruth
Both the Sessions Court as well as the High Court relied upon his evidence which according to them fully corroborated the evidence of PWs 1 and 2
The fact that some contusions and abrasions were found on PW 2 does not impair the evidence of these witnesses because the doctor was not asked whether the injuries were possible if kanta blows are given
It is quite possible to find contusions where two persons are giving blows with kantas which have also blunt asides
Unless definite suggestions are made and the impossibility of finding any such injuries with kanta blows is elicited we will not be justified merely on a submission from the bar to accept it and discard the evidence of the eye witnesses
We therefore find no valid reason in not accepting the concurrent findings of both the courts that the appellants had caused injuries to PW 2 as spoken to by the witnesses
these circumstances it is unnecessary for us to express any view on the question whether the evidence of the investigating officer Bhanu Prakash Sharma that it has been learnt that Sri Pal has died  is sufficient to prove the death of Sri Pal in order to admit the deposition of Sri Pal in the Committal Court under section 33 of the Evidence Act
It now remains to consider whether the conviction of the appellants under section 326 for grievous hurt is justified
The answer to this question would depend on the nature of the injuries which have been found on PW 2 namely whether they are simple or grievous
In order to justify conviction under section 326
injuries on PW 2 must satisfy the requirements of cl 7 or cl 8 of section 320 of the Indian Panel Code otherwise they will be treated as simple injuries
Clauses 7 and 8 of section 320 IPC provide that an injury could only be designated as grievous if it is l a fracture or dislocation of a bone or tooth or 2 any hurt which 241 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
It is contended by the learned counsel for the appellant that none of the injuries 2 to 6 which were inflicted on PW 2 discloses that there is a fracture or dislocation of any bone
These injuries it is said at the most show that the particular bones on which the injuries were inflicted were cut which however does not amount to a fracture
It is true that fracture has not been defined in the penal code
It is sometimes thought as in the case of Po Yi Maung vs Ma E Tin1 that the meaning of the word fracture would imply that there should be a break in the bone and that in the case of a skull bone it is not merely sufficient that there is a crack but that the crack must extend from the
outer surface of the skull to the inter surface
In Mutukdhar Singh vs Emperor2 it was observed that if the evidence is merely that a bone has been cut and there is nothing whatever to indicate the extent of the cut whether a deep one or a mere scratch on the surface of the bone it will be difficult to infer that the injury is a grievous hurt within the meaning of section 320 of the Panel Code
In our view both these assumptions are misleading
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 would amount to
a fracture within the meaning of el 7 of section 320
What we have 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 nature of the injuries as spoken to by the doctor in his evidence discloses the length breadth and depth of each injury
far as the depth of the injuries Nos 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
in injury 3 left humerus in injury 4 radius in injury 5 both the bones of the left forearm and in injury 6 the tibia bone shaft have been cut which would show that they are fractures
Apart from this the doctor as noticed earlier has in his evidence said that these injuries are grievous
It is contended that the doctor has not disclosed the reason why he thinks that the injuries were grievous
But in our view the doctor would not be unaware of what injuries are grievous or what are simple
At any rate the nature of the injuries considered with the evidence of the doctor would undoubtedly establish that all the aforesaid  1 AIR 1937  Rang 253
2 AIR 1942 Pat
242 injuries were grievous
these injuries were inflicted by kantas which are dangerous weapons and hence the conviction under section 326 is fully justified
The appeal fails and it is dismissed
YP Appeal dismissed


Summary:
The appellants gave kanta blows resulting in a number of injuries to a person
Some of injuries were incised wounds some contusions and some abrasions
All the incised4 injuries except one showed that the bones had been cut
On the question whether the conviction of the appellants under section 326 IPC for grievous hurt was justified or not HELD The conviction under section 326 was fully justified
In order to
justify conviction under section 326 the injuries must satisfy the requirements of cl 7 Dr cl 8 of section 320 of the Indian Penal Code otherwise they will be treated as simple injuries
Clauses 7 and 8 of section 320 IPC provide that an injury could only be designated as grievous if it is 1 a fracture or dislocation of a bone or tooth or 2 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
Fracture has not been defined in the Penal Code
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 would amount to a fracture within the
meaning of cl 7 of section 320
What has to be seen is whether the cuts in the bones noticed in the injury report are only superficial or do they effect a break in them
242 H 243 D F In the present case some of the incised injuries show that they were bone deep and were described as cutting the underlying bone which would show that they were fractures
Apart from this the doctor said that the injuries were grievous
These injuries were inflicted by Kantas which are dangerous weapons
Observations contra in Po Yi Maung vs Ma E Tin AIR 1937 Rang
253 and Mutukdhar Singh vs Emperor AIR 1942 Pat 376 disapproved