Criminal Revision No.2397 of 2005(O&M) [ 1 ] IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Criminal Revision No.2397 of 2005(O&M) Decided on : January 14, 2011 Harvinder Singh and others ... Petitioners VERSUS The State of Punjab ... Respondent CORAM : HON'BLE MR.JUSTICE A.N.JINDAL Present: Ms.G.K.Mann, Advocate for the petitioners. Mr.Amit Chaudhary, AAG, Punjab. A.N.JINDAL, J.- The three accused, namely; Harvinder Singh, Raghbir Singh and Ashok Kumar were prosecuted for causing injuries to Sukhdev Singh and Amrik Singh. Consequently, they were convicted and sentenced as under:- Harwinder Singh U/s 326 IPC U/s 323/34 IPC To undergo rigorous imprisonment for two years and to pay fine of Rs.500/-; To undergo rigorous imprisonment for six months. Raghbir Singh U/ss 326/34 & 323/34 IPC As above Ashok Kumar U/ss 326 IPC & 323/34 IPC As above Their appeal was also dismissed on 25.10.2005. Criminal Revision No.2397 of 2005(O&M) [ 2 ] The case was registered on the statement of the complainant - Sukhdev Singh (herein referred as `the complainant') to the effect that there was a dispute between Raghbir Singh, etc. - petitioners on one side and the complainant and his brother Amrik Singh on the other side. However, a compromise had taken place between them with the intervention of the respectables. On 12.1.1996, at about 8.00 PM, Raghbir Singh armed with spade; Satpal Singh armed with dang; Harvinder Singh armed with sword and Ashok Kumar armed with Chhavi came to the house of the complainant. They exhorted that they would teach a lesson to the complainant for taking land from them. Harvinder Singh inflicted a sword blow on the head of the complainant. Amrik Singh tried to intervene, whereupon, Ashok Kumar inflicted a `Chhavi' blow above the left eye of Amrik Singh. The hue and cry raised by them attracted Paramjit Kaur wife of Amrik Singh and Sarabjit Kaur, whereupon, the petitioners along with Satpal Singh (since deceased) escaped. The injured were shifted to the hospital, where, they were medico-legally examined. Finding the case to be non-cognizable, a DDR was entered in the Register at Police Station Kotli Surat Malhi on 13.1.1996. However, on declaration of the injury on the person of the complainant as grievous, the FIR in question was registered on 20.1.1996, which led to the investigation. On submission of the report under Section 173 of the Code of Criminal Procedure, 1973, the accused were charged for the offences under Sections 326/323/34 of the Indian Penal Code, 1860, to which they pleaded not guilty and claimed trial. Criminal Revision No.2397 of 2005(O&M) [ 3 ] The prosecution, in order to substantiate the charges, examined Amrik Singh (PW1), Paramjit Kaur (PW2), ASI Sukhdev Singh (PW3) and Dr.Gian Chand (PW4). When examined under Section 313 of the Code of Criminal Procedure, 1973, the accused denied all the allegations and pleaded their false implication. However, they did not lead any evidence in defence. The trial resulted into conviction and their appeal was also dismissed. Arguments heard. Record perused. Much stressed argument is with regard to delay in lodging the FIR, but the same has been duly explained by the prosecution. I agree with the contention raised by the Assistant Advocate General that when there are consistent testimonies of eye-witnesses, then a little delay in lodging the FIR hardly affects the prosecution case. Moreover, the DDR was lodged promptly as at the first instance, the case was found to be non-cognizable, but after the injury was found to be grievous in nature, the instant FIR was registered. The other contention raised by the counsel for the accused is that Dr.Gian Chand (PW4) declared the injury on the person of the complainant Sukhdev Singh as grievous, without getting the same X-rayed. To the contrary, the Assistant Advocate General has referred to the judgment delivered by the Apex Court in case Hori Lal and another vs. The State of U.P., AIR 1970 Supreme Court 1969, wherein, it was observed as under:- “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 Criminal Revision No.2397 of 2005(O&M) [ 4 ] 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.” Having heard the rival contentions, before I determine whether the injury falls within the ambit of any of the clauses of Section 326, I need to reproduce the injury found on the person of the complainant by Dr.Gian Chand (PW4), which reads as under:- “Incised wound on the vertex region of skull, measuring about 3 cms x 1 cm crossing the mid-line of skull. Underlying bone is cut, surrounding swelling present. Fresh bleeding present.” On the same day, this witness also examined another injured, namely Amrik Singh and found the following injury on his person:- “Lacerated wound on right side of forehead, just above the eyebrow, measuring 2 cm x 1 cm fresh bleeding present.” Dr.Gian Chand further opined that the injury on the person of the complainant Sukhdev Singh was grievous in nature. Having examined the judgment delivered by the Apex Court in Hori Lal's case (supra), the Court out-rightly did not exclude the conducting of the X-ray examination, but it was observed by the Apex Court that before holding the injury to be grievous in nature, the Court has to examine as to whether the cuts in the bone noticed in the X-ray report are Criminal Revision No.2397 of 2005(O&M) [ 5 ] only superficial or do they effect a break in them. Thus, still the onus to prove that the cuts were not superficial and there was a break in the bone was upon the prosecution. No doubt, this judgment was followed in case Dhanna Singh and another vs. The State of Punjab, 1993(3) Recent Criminal Reports 400, but in that case, there may be clear-cut fractures, may not be requiring the further X-ray examination and the report could be made on visual observations. There is no denying a fact that in case of fractures or dislocation, the injury could be declared grievous without X-ray examination, yet in case of cut, the prosecution has to establish that the cut was not superficial and there was a break in the bone. It was not necessary that there should be a cut through and through, but it is essential that bone should have been cut to some extent and the cut should not be superficial in nature. In the case in hand, Dr. Gian Chand (PW4) has nowhere given the depth of the cut and he has also not stated that the cut was not superficial. Similar observations were made in State of Punjab vs. Jiwan Singh, 1994(2) RCR(Crl.) 373, wherein, the Division Bench observed that the X-ray is an assured test for a deep cut in a inner table or a superficial cut on the outer table. In X-ray examination, superficial cut seldom comes. The Division Bench in the aforesaid case conveyed that superficial cut cannot be determined as grievous injury. Another Division of this Court in case State of Punjab vs. Harinder Singh @ Raju, 2008(2) RCR(Crl.) 294 observed as under:- “..The visual examination of Dr.Sanjay Garg, PW1, to the Criminal Revision No.2397 of 2005(O&M) [ 6 ] effect, that the injury was grievous, could not make the same to be grievous. In these circumstances, the opinion of Dr.Sanjay Garg that he declared injury to be grievous, as it was caused by knife and the opinion of the Board of Doctors of Civil Hospital, Bathinda, that they declared the injury, to be grievous, on the basis of the report of Dr.Sanjay Garg, could not be said to be correct. In State of Punjab v. Manga Singh and another, 1992(2) RCR(Crl.) 144 (P&H), the doctor declared the injury grievous without X-ray examination, to probe depth of the cut. The opinion was based on visual observation. It was held that the opinion of the doctor, on visual observation, could not be accepted, and the injury could not be termed as grievous. In this view of the matter, no offence under Section 326 IPC, was made out.” The two other judgments of the Single Bench delivered in cases Kashmir Singh vs. Sardul Singh and others, 2003(3) Crl.C.C. 259 and Baldev Singh vs. State of Punjab, 1996(1) RCR(Crl.) 790 also affirm the view that merely a bone-cut cannot be said to be a deep cut, so as to declare the injury as grievous in nature. In the instant case as well, the mere fact that there was a cut in the bone on the outer table, is hardly sufficient to take the case within the purview of Section 326 IPC. Hence, the accused cannot be said to have committed an offence under Section 326 IPC, as the injury caused to the complainant falls Criminal Revision No.2397 of 2005(O&M) [ 7 ] within the purview of Section 324 IPC. Resultantly, this petition is partly accepted, the impugned judgment is set aside to the extent that the accused are acquitted of the charges under Section 326 IPC. However, they are convicted under Section 324, 323 read with Section 34 IPC. Keeping in view the longevity of the trial and that the accused are first offenders, they are extended benefit of probation, as such, they are ordered to be released on probation under Section 4(1) of the Probation of Offenders Act, 1958 on their executing bonds in the sum of Rs.5000/- with one surety, each, in the like amount to the satisfaction of the Trial Court for a period of one year within which period they will continue to be of good behaviour and keep peace and in case of breach of conditions of the bonds, they will be ready to serve the sentence as and when called for. January 14, 2011 ( A.N.JINDAL ) `gian' JUDGE