Hori Lal & ANR Vs. State of U.P
 INSC 223 (8 September 1969)
08/09/1969 REDDY, P. JAGANMOHAN REDDY, P.
JAGANMOHAN SIKRI, S.M.
CITATION: 1970 AIR 1969 1970 SCR (2) 237 1970
SCC (1) 60
CITATOR INFO :
F 1986 SC2192 (2,3,4,5,6)
Indian Penal Code, 1860 (45 of 1860), ss. 320
and 326---Grievous injury Fracture--Meaning of.
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 s. 326, I.P.C. for grievous hurt was justified or not;
HELD: The conviction under s. 326 was fully
In order to. justify conviction under s. 326,
the injuries must satisfy the requirements of cl. 7 Dr cl. 8 of s. 320 of the Indian
Penal Code, otherwise they will be treated as simple injuries. Clauses 7 'and 8
of s. 320 I.P.C., 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 s.
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
Observations contra in Po Yi Maung v. Ma E
(1937) Rang. 253 and Mutukdhar Singh v.
(1942) Pat. 376, disapproved.
CRIMINAL APPELLAT JURISDICTION: Criminal
Appeal No.70 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.
R.K. Garg, S.C. Agarwal and Uma Dutta, for
O.P. 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 s.
307 read with s. 34 of the I.P.C. and instead
convicting them under s. 326 read with s. 34 I.P.C. 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 5.30 p.m.
Jeet Bahadur P.W. 2 along with his laborer Sri Pal deceased was reaping the
harvest. The field of Sagar Singh P.W. 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 P.W. 2 cried out whereupon
Sagar Singh P.W. 1 hearing the shouts rushed to his aid. Maya Ram P.W. 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 P.W. 1 took him to the police station and
there lodged a report Ex. Ka-1 at about 9.55 p.m. on March 29, 1965. The
investigation officer Bhanu Prakash Sharma, P.W.
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 8.30 a.m.
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.
3. Incised wound 1 1/4"
><1/2">( bone cutting the underlying bone lower p art left
humerus just above the left elbow on the back of left arm.
4. Incised wound obliquely 5" X 2"
X bone cutting the underlying radius and above left in the middle of the left
5. Incised wound 5"X I"X bone on
the back of the left forearm lower I/3rd. Slightly obliquely cutting both the
bones of left forearm.
6. Incised wound 4 1/2"X 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 P.W. 1, Jeet Bahadur P.W. 2
and Maya Ram P.W. 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 s. 33 of the Evidence Act
(Ex. Ka-11). The learned Sessions Judge. believed the eye witnesses and relying
upon Ex. Ka-3 convicted the accused under s. 307 read with s. 34. The learned
Judge however acquitted them of the second charge of attempting to murder P.W.
1 with pistol.
In this appeal Mr. S.C. 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 P.W. 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 s. 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 P.W. 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
P.W. 2. Even if the evidence of P.W. 1 and P.W. 2 who. are brothers, of whom
P.W. 2 is the victim, is for the moment not considered, there is no reason why
the evidence of P.W. 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 5.30' p.m. 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 P.Ws. 1 and 2.
The fact that some contusions and abrasions were
found on P.W. 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 P.W. 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 s. 33 of the Evidence Act.
It now remains to consider whether the
conviction of the appellants under s. 326 for grievous hurt is justified. The
answer to this question would depend on the nature of the injuries which have
been found on P.W. 2, namely, whether they are simple or grievous. In order to
justify conviction under s. 326. injuries on P.W. 2 must satisfy the
requirements of cl. 7 or cl. 8 of s. 320 of the Indian Panel Code, otherwise
they will be treated as simple injuries.
Clauses 7 and 8 of s. 320 I.P.C. 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 P.W. 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 v. Ma E Tin(1) 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 v. Emperor(2) 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 s. 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
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 s. 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. So. 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) A.I.R. (1937') Rang 253. (2) A.I.R. (1942) Pat. 376.
242 injuries were grievous. these injuries
were inflicted by kantas which are dangerous weapons and hence the conviction
under s. 326 is fully justified.
The appeal fails and it is dismissed.
Y.P. Appeal dismissed.