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2003 Supreme(P&H) 230
PUNJAB AND HARYANA HIGH COURT
Swatanter Kumar and S.S. Saron, JJ.
State of Punjab - Appellant
Versus
Nasib Singh - Respondents
Criminal Appeal No. 43-DBA of 1993.
Decided On : 6 February, 2003
For the Appellant :Mr. J.S. Bedi, Advocate.
For the Respondents: Mr. A.S. Grewal, DAG, Punjab.
The absence of x-ray film does not universally result in acquittal under section 326 of the Indian Penal Code. The intention to cause grievous hurt and knowledge thereof are the basic ingredients for holding an accused guilty under section 326 of the Indian Penal Code.
Headnote:
x-ray film - Offence under section 326 of the Indian Penal Code - 320, 324, 34 - The court discussed the absence of x-ray film in a case of alleged fracture grievous hurt and its impact on converting the offence to section 324 from section 326 of the Indian Penal Code. The court also examined whether benefits under the Probation of Offenders Act, 1958 could be granted to the accused.
Fact of the Case:
An F.I.R. was registered under sections 326, 324 read with section 34 of the Indian Penal Code for causing grievous hurt with a sharp-edged weapon to the injured. The accused were found guilty and sentenced by the trial court, but the appellate court converted the offence to section 324 and granted benefits under the Probation of Offenders Act, 1958.
Finding of the Court:
The court found that the absence of x-ray film does not universally result in acquittal under section 326 of the Indian Penal Code. It held that the accused were guilty of an offence under section 326 of the Indian Penal Code and affirmed the judgment of the trial court.
Issues: The main issue was whether the absence of x-ray film could per se result in converting the offence to section 324 from section 326 of the Indian Penal Code and whether benefits under the Probation of Offenders Act, 1958 could be granted to the accused.
Ratio Decidendi: The court held that the absence of x-ray film does not universally take the offence outside the purview of section 320 Clause seventhly of the Indian Penal Code. It emphasized that the intention to cause grievous hurt and knowledge thereof are the basic ingredients for holding an accused guilty under section 326 of the Indian Penal Code.
Final Decision: The appeal was allowed, and the judgment of the trial court in regard to conviction and sentence was affirmed. The court also approved the grant of benefits of the provisions of section 4 of The Probation of Offenders Act, 1958, to the accused as granted by the appellate court.
Swatanter Kumar, J. - May be not a very pertinent or significant but certainly a question which is likely to fall for determination before the court more than often is, whether absence of x-ray film in a case of alleged fracture grievous hurt can per se be a reason enough for converting an offence to section 324 from section 326 of the Indian Penal Code ? Further corollary thereto which we are called upon to examine in this Criminal Appeal is, on such conversion whether benefits under the Probation of Offenders Act, 1958 could be granted to the accused ?
2. Before we proceed to discuss the various legal facets of this moot question, reference to basic facts giving rise to the present appeal can appropriately be made.
3. An F.I.R. No. 43 dated 3.3.1985 was registered by the Police Station Morinda in District Ropar, under sections 326, 324 read with section 34 of other Indian Penal Code. The F.I.R. exhibit PB/1 was registered on the statement Sh. Maghar Singh son of Sh. Mehar Singh, aged 50 years, resident of Khant which reads as under :-
"I am a resident of village Khant and do cultivation. Today at about 8.00 A.M. Nirmal Singh s/o Jata Singh, Balwinder Singh s/o Jangi Singh, resident of the village and I were reading a newspaper while sitting on a bench lying in front of the door of the grocery shop (of Balwinder Singh) in the street. In the meantime, Nasib Singh s/o Mangal Singh armed with a kirpan and his son Mewa Singh armed with kirpan came towards us from their shop of electrical goods. Just after their arrival, Mewa Singh s/o Nasib Singh raised a lalkara saying, "Maghar Singh get ready, today we will teach you a lesson for hurling abuses. Saying so, Mewa Singh gave a kirpan blow on my head which I warded off on my hand as a result thereof, the said kirpan blow fell on my fingers. Again he gave one more blow which I warded off on my left arm, hitting my wrist. As a result of which, the bone of my wrist was cut. After that Nasib Singh gave blow with his kirpan which fell on my left leg above the ankle as a result of which the bone of the shin of leg was cut. Thereupon, Balwinder Singh, Nirmal Singh and I raised an alarm of "Na Maro, Na Maro" (Dont kill, dont kill) upon which Nasib Singh and Mewa Singh both father and son fled away together with their respective weapons. The cause of grouse is that on 28.2.85 Mewa Singh, Gurmit Singh and I have consumed liquor together where an altercation had taken place between Mewa Singh and thereupon, Balwinder Singh and Nirmal Singh aforesaid, residents of my village removed me to hospital in the car of Sher Singh where you have come. You have recorded my statement. Action may be taken."
4. The injured was taken to the hospital and were examined by doctors PW5, PW7 and PW8 respectively. Blood stained earth and Panjabi Tribune News paper dated 3.3.1985 and blood stained jutti were taken into custody by the Investigating Office vide exhibit PA. On the disclosure statement Ex. PC and Ex. PD of Nasib Singh and Mewa Singh respectively weapons i.e. blood stained kirpan and (sic) were recovered vide Ex. PE and Ex. PF respectively. After recording the statement of witnesses under section 161 and Criminal Procedure Code, challan was filed in the court and the learned trial court vide its order dated 2.9.1985 framed the following charges against both the accused to which they pleaded no guilty and claimed trial :
" I, Mrs. Sudershan Modi, PCS, Judicial Magistrate Ist Class, Ropar do hereby charge you as follows :-
That on 3.3.1985 at about 8 A.M. in the Revenue limits of Khant in furtherance of common intention of your (sic. you) both Nasib Singh and Mewa Singh which was to caused (sic. cause) grievous hurt with a sharp edged weapon i.e. with Kirpan which is an instrument of cutting, to Maghar Singh PW, you Mewa Singh voluntarily caused grievous injury with sharp edged weapon to Maghar Singh and thereby committed an offence punishable under section 326 Indian Penal Code and whereas Nasib
