M.M.PUNCHHI, J. - (1.) OUT of six accused convicted by the trial Magistrate, two were acquitted on appeal by the learned Sessions Judge, Patiala. The convictions of the remaining four were thus altered since charge under section 148, Indian Penal Code, failed. Sadha Singh petitioner was convinced under section 326, Indian Penal Code, and the remaining petitioners under section 326/34, Indian Penal Code. Bachan Singh petitioner was convicted under section 342, Indian Penal Code, and the remaining petitioners under Section 324/34, Indian Penal Code. All the four petitioners were convicted under Section 323, Indian Penal Code. They were variously sentenced as disclosed in the opening sheet of the petition.
(2.) THE only point raised in this petition by the learned counsel for the petitioners is that out of eight injuries found on Puran Singh PW., the victim of the crime, Dr. C.L. Verma PW 5 had opined that injury No. 8 was grievous on the basis of the X-ray report. The same descriptively is as follows :- "Incised wound 4 cm x 1 cm x 6 cm on the medil aspect of the left leg, 3 cm above the medial malleous. It is transverse to mid line. Advice X-ray." The X-ray report had revealed that there was a small cut at the middle index of the tibia. It is then that the injury was opined as grievous. The learned counsel for the petitioner contended that the injury was superficial that it did not fall squarely within the meaning of section 320, Indian Penal Code, for there was neither a fracture nor dislocation. Reliance was placed on Hori Lal and another v. The State of U.P., AIR 1970 Supreme Court 1969. In particular, the following passage was relied upon :- "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, it would amount to a fracture within the meaning of Clause 7 of Section 320. What the 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 ...... So far as the depth of injuries 3, 4, 5 and 6 concerned, each one of the injuries shows that it is bone deep and they are described as cutting the underlying bone." Reliance was also placed on Kailash Prasad Kanodia and another v. State of Bihar, AIR 1980 Supreme Court 106 and in particular, on the following passage :- "The Doctor admits that he did not find any fracture of a serious nature. In these circumstances, we are satisfied that the charge under section 325 must necessarily fail ....." It is contended that a non-serious fracture was outside the scope of section 326, Indian Penal Code, in view of Kailash Prasad Kanodia's case (supra) and that a conviction under section 326, Indian Penal Code, could only be maintained if there was fracture of a serious nature or one which is not superficial. Kailash Prasad Kanodia's case (supra) was decided by two Hon'ble Judges of the Supreme Court. Hori Lal's case (supra) was decided by three Hon'ble Judges of the Supreme Court. In the latter case, the doctor had opined the injuries above-referred to in the extracted passage to be grievous. The contention that such injuries were not grievous was repelled by the Supreme Court in the following passage :- "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 evidence of the doctor would undoubtedly establish that all the aforesaid were grievous."
(3.) IN the instant case, there was a cut, though described as small, yet it definitely caused a break. Such an injury, to my mind, could not called superficial or non-serious. The injury obviously fell within the domain of section 346 of the Indian Penal Code. On that score, no interference can be made to alter the conviction of the petitioners under section 326 with or without the aid of section 34 of the Indian Penal Code, as the case may be. However, the sentence of each petitioner in that regard is slightly excessive and deserves to be reduced to 1-1/2 years' rigorous imprisonment, while sustaining that of fine. Ordered accordingly.;