Harish Chandra, J. - (1.) THE two applicants Babullah and Kitabullah have been convicted under Section 326 of the Indian Penal Code and sentenced each to a fine of Ks. 500 and rigorous imprisonment for one year. Two others namely Shafaat Ullah son of Babullah and Subedar father of Kitabullah were also convicted in the tame case but their convictions were under Section 323 of the Indian Penal Code and they were also sentenced by the learned Magistrate to imprisonment and fines. When the case came up before the court of session in appeal the parties filed an application to compound the offence and the learned Sessions Judge accepted the composition so far as the convictions of Shafaat Ullah and Subedar were concerned and acquitted them setting aside their sentences. The convictions of Babullah and Kitabullah being under Section 326 of the Indian Penal Code which is an offence which cannot be compounded, he did not accept the composition so far as they were concerned and maintained their convictions.
(2.) IT is pointed out, however, that the injuries which were caused to the complainants Kitabullah son of Housil and Hadis were not in fact grievous injuries. It appears that the injury on the head of Hadis was 3 1/4' x 3/4', deep to the bone. Underneath the injury there was a cut on the bone to the length of 3 " x 1/8". The injury on the head of Kitabullah was 2 1/2 " x 3/4", deep to the bone. Underneath he injury there was cut on the bone to the extent of 2 ' x 1/5". The bone in neither case was cut nor was there any bone actually fractured. It is argued on behalf of the complainant that in the circumstances the injuries could not be described as grievous ones having regard to the definition of grievous injury as contained in Section 230 of the Indian Penal Code The contention is supported by two cases. One of these cases is Maung -Po -yl v. Ma -E -Tan A.I.R. 1937 Rang. 253. The following occurs in the judgment: There can be no question of any dislocation here and therefore, the question arises whether the injury described by doctor amounted to a fracture or not. In my opinion, it did not. I take the meaning of his 'evidence to be that the skin and membranes out side the skull bone were out through and that the knife then touched the skull bone and perhaps caused some injury to its surface but did not out it through and did not crack it. It may be that the knife cut through the substance of the skull bone to a very small extent. In my View there is nothing in this which " even remotely suggests a fracture. The primary meaning of the word "fracture" is "breaking", though it is conceded that it is not necessary in the case of a fracture of the skull bone that it be divided into two separate parts because it may consist merely of a crack ; but the point is that if it is a crack it must be a crack which extends from the outer surface of the skull to the inner surface. I am, therefore, of the opinion that the accused were guilty of offences under S. 324, I.P.C. and S. 324 read With S. 109, I.P.C.
(3.) A Similar View was taken by a Bench of the Patna High Court in Mutukhari Singh v. Emperor A.I. R. 1942 Pat. 376. I respectfully agree with the view taken in these cases and hold that the applicants did in fact commit an offence under Section 324 of the Indian Penal Code and not under Section 326 of that Code.;