B.S.Dhillon, J. - (1.) NAIB Singh Respondent was tried and found guilty for an offence under Section 324 of the Indian Penal Code, by the learned Judicial Magistrate 1st Class, Muktsar, vide his judgment dated 17th April, 1974, and was ordered to be released on probation on his entering into a bond in the sum of Rs. 2,000, with one surety in the like amount, for a period of one year, to appear and receive sentence when called upon during the period of such bond and in the mean -time to keep the peace and to be of good behaviour, under Section 4(1) of the Probation of Offenders Act, 1958, (hereinafter referred to as the Act). The State of Punjab has challenged the judgment of the learned Magistrate dated the 17th April, 1974, as it is claimed that the Respondent should have been convicted for an offence under Section 326 of the Indian Penal Code and that the benefit of the provisions of Section 4(1) of the Act has been wrongly given to the Respondent.
(2.) BRIEFLY stated, the prosecution case is that Darshan Singh P.W. took his she buffaloes to Wattu minor, on 22nd April, 1973, at about 10.00 A.M. The buffaloes entered the water of the minor for taking water. Naib Singh Respondent came there with a Gandasa in his hand and asked Darshan Singh P.W. to take his buffaloes out of the minor as their presence in the water caused dimunition of supply of water in the outlet. Darshan Singh P.W. told Naib Singh that he would take out his buffaloes after they had drunk water. On this, the Respondent called bad names to Darshan Singh and gave one Gandasa blow from the sharp -edged side on his head in the middle portion. The occurrence was witnessed by Makhan Singh and Chuhar Singh who reached the spot. Darshan Singh P.W. went to his house with Makhan Singh and then went to Civil Hospital, Muktsar, on a trolley, where he was medically examined by Dr. S. K. Saluja (P.W. 1). A copy of the medicolegal report having been received at Police Station, Saddar, Muktsar, A.S.I. Punjab Singh went to Civil Hospital, Muktsar, and recorded the statement of Darshan Singh, Exhibit P.C. on the basis of which the F.LR. was registered on 24th April, 1973 at about 4.15 P.M.
(3.) DR . S. K. Saluja (P.W. 1) medically examined Darshan Singh P.W. on 22nd April, 1973, at 2.10 P.M. and found the following injury on his person: 1. An incised wound 4 cm. x 1/2 cm. bone deep on the top of head on mid line 8 cm. from hair line 15 cm. above left pinna. This Doctor declared the injury as simple. Darshan Singh P.W. remained as indoor patient in the Civil Hospital at Muktsar from 22nd April, 1973 to 29th April, 1973. After he was discharged from the Civil Hospital Muktsar, he got an order from the learned Magistrate on the basis of which he got himself X -rayed from Dr. O. P. Goyal (C.W. 1), Radiologist, Civil Hospital, Faridkot. Dr. O. P. Goyal, (C.W. 1) examined him on 16th May, 1973, for his skull X -ray and found a partial cut of the skull vault under injury No. 1, vide his report Exhibit C.W. 1/A and X -ray films C.W. 1/B and C. In his opinion, it was a deep cut involving whole of the outer table of the skull. However, he could not tell about the depth of the cut.;