IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Rev. No. 117 of 2004. Date of Decision: 23.9.2010. _______________________________________________ Jai Dev ….Petitioner. Versus. State of H.P. .Respondent. Coram: Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1? Yes. For the petitioner :Mr. Bhupinder Ahuja, Advocate vice Mr.Anup Chitkara, Advocate. For the Respondent. :Mr.P.K.Sharma, Addl. Advocate General With Ms.Shubh Mahajan, Dy. Advocate General. Dev Darshan Sud, J.(Oral). The petitioner is convicted for offences under Section 326 I.P.C. and has been sentenced to undergo imprisonment for a period of one year and fine of Rs. 5,000/- and in default of payment of fine to undergo further simple imprisonment for a period of one month. Out of the fine amount realized, a sum of Rs.2000/- has been directed to be paid to the complainant. These sentences have been confirmed by the learned appellate Court. 2. The case against the petitioner is that on 13.10.1995 at about 1 p.m. complainant Lal Singh (PW2) was going towards his field when the petitioner accosted him, Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 started quarreling, threatened him and struck him with a darat (sickle) on the left ear as a result of which he sustained injuries therein. He was thereafter beaten up with stones causing injuries on his arm, back and neck of the complainant. He raised a hue and cry whereupon Hem Singh, PW3 Damodar, PW5 Pamplu Devi and Megharu Devi rushed to the spot. On this, the accused fled away from the scene of occurrence. The prosecution examined nine witnesses and on their evidence held that the assault, in fact, was proved. 3. PW4 Dr.D.D.Rana issued Medico Legal Certificate Ext.PW4/A enumerating five injuries. The learned trial Court, holds that injury No.1 which was opined to be grievous by the doctor and has been inflicted with a sharp edged weapon, the petitioner accused was sentenced under Section 326 I.P.C. and not under Sections 323 and 324 I.P.C. Appeal preferred has been dismissed by the learned appellate Court. 4. I have heard learned counsel for the petitioner and gone through the record. 5. Learned counsel urges that the contradiction in the evidence of the prosecution was sufficient to warrant acquittal of the petitioner. In particular, learned counsel submits that the evidence of the prosecution could not be relied upon as it was motivated by enmity between the parties. 6. I have scrutinized the evidence on record and cannot persuade myself to hold that both these submissions are established on the record of the case. The evidence of the 3 injured PW2 Lal Singh, PW3 Damodar and PW5 Pamplu Devi is clear on the question of assault. 7. Another point urged by the learned counsel appearing for the petitioner is that there can be no conviction under Section 326 I.P.C. In support of his submission, learned counsel refers to the medico legal certificate (Ext.PW4/A), evidence of PW4 Dr.D.D.Rana and the provisions of Section 320 and 324 of the Indian Penal Code. 8. Adverting first to the evidence of PW4 Dr.D.D.Rana, he admits in his cross-examination that the injuries caused to the complainant can be a result of fall. He details the following injuries in his evidence: “1. Incised wound in the left pinne cut into two parts up to the base. Fresh bleeding is there. Margins are clear. 2.Abrasion in the back in the left reaputor region 6 cm. in length and 2 cm in depth. 3.Two abrasions in the right seapulor region 7 cm. in length and 2 cm in breadth at right angle to each other. 4. Abrasion in the left forearms 4 cm. below left elbow joint 2 cm. in length and 2 cm in breadth. 5.Abrasion in left eyebrow 2 cm. in length horizontal and 1 cm in breadth vertically. 9. Out of this, injury No.1 has been opined to be grievous in nature. 10. Section 320 I.P.C. defines grievous hurt to means: First—Emasculation. Secondly---Permanent privation of the sight of either eye. Thirdly----Permanent privation of the hearing of either ear. Fourthly—Privation of any member or joint. 4 Fifthly----Destruction or permanent impairing of the powers of any member or joint. Sixthly----Permanent disfiguration of the head or face. Seventhly---Fracture or dislocation of a bone or tooth. Eighthly---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.” 11. Considering the evidence of the prosecution in totality, injury No.1 which is on the left ear cannot be considered under the first, second, third, fourth, fifth, sixth, seventh or eighth definitions for the reason that there is no evidence on record to establish any of these physical attributes. There is also no evidence on record to prove injury No.1 within any of the Clause(s) under Section 320 I.P.C. for the reason that neither PW1 Sh. Rajesh nor PW4 Dr.D.D.Rana has given his opinion on the nature of the physical injury. So far as the opinion of the doctor is concerned, it cannot be final finding. 12. Learned counsel refers to the Division Bench judgment of the Punjab and Haryana High Court in Atma Singh Vs. The State of Punjab, 1980 Cri.L.J. 1226, holding: “17.We are of the view that the Court is not absolved of the responsibility while deciding a criminal case to form its own conclusion regarding the nature of the injury, Expert’s opinion notwithstanding. The Court has to see the nature and dimension of the injury, its location and the damage that it has caused. Even when an injury is described as to be one which endangers the life the court has to apply its own mind and form its own opinion in regard to the nature of injury, having regard to the factors that should weigh with the Court, already mentioned. We are also firmly of the view that wherever a doctor describes an injury as ‘dangerous to life’ and the nature 5 of the injuries is such which could merit such a conclusion then such an injury has to be treated as ‘grievous hurt’ of the description mentioned in first portion of clause (8) of Section 320 of the Indian Penal Code”. (P 1980 ) 13. I do not find from the perusal of the evidence on record that the injury is of such a nature which can be covered by any of the definitions under Section 320 I.P.C. The wound is only 4 cms. 14. Learned counsel also places reliance on the judgment of the Supreme Court in Avinash Shetty Vs. State of Karnataka and another, (2006) 1 S.C.C. (Cri) 316, holding: “4. The counsel for the appellant submitted that the injuries sustained by PW1 were not grievous in nature and the conviction of the appellant for the offence under Section 326 IPC is not sustainable in law. Our attention was drawn to the wound certificate prepared by PW2. There were four injuries on the body of the injured, PW1. Admittedly injuries 2 to 4 were simple in nature, the dispute was with regard to injury 1. Description of injury 1 is as follows: An incised wound measuring 3” x 1” over the left hand and the nerve of the middle finger, index finger and the fourth finger was cut. 5. The doctor in his cross-examination stated that he had not noticed any fracture of the bone. He also stated that Injury 1 was grievous in nature. 6. By going through the description of the wound certificate, it is not correct to say that the injury was a grievous one, as there was no fracture to the bone either of the middle finger or of the index finger of the left hand. There is also no case that the victim would have suffered severe body pain during the space of twenty days or would have been unable to follow his ordinary pursuits for that period. There is also no case that there was permanent privation of sight of either eye, permanent privation of hearing of either ear or privation of any member or joint or destruction or permanent impairing of the power of 6 any member or joint. On a plain description of the wound, it would not be grievous hurt coming under Section 320 IPC. The opinion of the doctor that Injury 1 was grievous in nature was erroneous and it is only to be ignored. 7. Therefore the offence committed by the appellant would only come under Section 324 IPC. An application for compounding the offence under Section 320 Cr.PC is filed. The counsel for the complainant, PW1 stated that he has no objection to compounding the offence.” (P 317) 15. In these circumstances, I hold that the offence as committed by the petitioner herein is one under Section 324 and not under Section 326 I.P.C. 16. On the question of sentence, learned counsel submits that the petitioner should be granted the benefit of Probation of Offenders Act. At this stage, I am not inclined to accept this submission. Accordingly, the sentence of imprisonment imposed upon the petitioner is set aside and it is directed that he shall pay a sum of Rs.20,000/- in addition to the fine already deposited by him before the trial Court. This amount shall be deposited before the learned trial Court and on such deposit being made shall be paid to the victim PW2 Lal Singh as compensation. The amount be deposited within a period of three months from today failing which the petitioner shall undergo rigorous imprisonment for three months. The petition is disposed of. Bail bonds furnished by the petitioner shall stand discharged. (Dev Darshan Sud), Judge. September 23, 2010(R) 7