NAIB SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) This appeal by special leave directed against a judgment of the Punjab and Haryana High Court dated February 21, 1978 raises a question whether the appellant was guilty of having committed an offence punishable under S. 326 of the Indian Penal Code, 1860 or under S. 324. That would depend on whether cutting of bone without more amounts to fracture within the meaning of clause seventhly of S. 320. On this question, the High Court has differed with the conclusion reached by the Judicial Magistrate, First Class, Muktsar who had convicted the appellant by his judgment and sentence dated April 17, 1974 under S. 324 and released him under S. 4 of the Probation of Offenders Act, 1958.

(2.) The prosecution case in brief was as follows. On April 22, 1973 at about 10 a.m. in village Motlewala the appellant, who is a teacher in Government School, after an altercation and exchange of abuses struck the complainant Darshan Singh, PW 3 with a gandasa on the middle of his head. Fortunately, Darshan Singh was wearing a turban which cushioned off the force of the blow leaving only a bleeding injury. On the same day at about 2.30 p.m., Darshan Singh was medically examined by Dr. S. K. Saluja, Medical Officer, Civil Hospital, Muktsar, PW. 1. He found that Darshan Singh had an incised wound 4 cm x 1/2 cm bone deep on the top of the middle of his head. In his opinion, the injury was simple in nature. Darshan Singh remained an indoor patient in Civil Hospital, Muktsar from April 22 to April 29, 1973. Some three weeks after the occurrence i.e. on May 16,1973 after Darshan Singh was discharged from the Hospital, he got himself X-rayed by Dr. O.P. Goyal, Radiologist, Civil Hospital, Faridkot, CW 1. In his report, Dr. Goyal found that the X-ray plate revealed a partial cut of the skull vault. On the police challan, the learned Magistrate framed a charge under S. 324 of the Indian Penal Code but later on the application by the complainant altered the charge to one under S. 326. At. the instance of the complainant, the learned Magistrate also summoned Dr. Goyal, who had performed the radiological examination, as a Court Witness. The learned Magistrate relying upon the testimony of Dr. Saluja, PW 1 held that the injury caused by the appellant was a simple injury. That opinion of the doctor was based upon the statement in Modi's Medical Jurisprudence, 1967 Edn., P. 242 that cutting of a bone does not necessarily involve a fracture of that bone. The learned Magistrate viewed with suspicion the authenticity of the X-ray plate taken by Dr. Goyal on May 16, 1973. He observed that a look at the X-ray film would show that there was a white line, a little curved in the lower portion on the skull vault, which was suggestive that a wire was placed on the skull before the film was exposed to X-ray equipment. He found the line to be prominent and observed that it could not be so unless excessive force was used in inflicting the injury. In that event, there would have been extensive injuries i.e. deep cutting of the bones underneath or multiple fracture of the skull, but there was very little callus formation. The learned Magistrate therefore felt that it was not safe to rely on the opinion of Dr. Goyal that there was a partial cut of the skull vault or that there was a deep cut involving the whole of the outer table reaching up to the inner table. The learned Magistrate accordingly held that the decision of this Court in Horilal v. State of U.P., (1970) 2 SCR 237 was not attracted and convicted the appellant of having voluntarily caused a simple injury by a sharp-edged weapon under S.324.

(3.) In allowing the appeal against acquittal, the High Court has held that the judgment of the learned Magistrate proceeds on mere conjecture and unwarranted inferences. It observes that there was no reason to discard the testimony of Dr. O. P. Goyal who found a partial cut of the skull vault merely on the assertion of Dr. Saluja that it was a simple injury which opinion was based entirely on the statement in Modi's Medical Jurisprudence. The statement in Modi proceeds on the decision of the Rangoon High Court in Maung Po Yiv. Ma E Tin, AIR 1937 Rangoon 253 that the cutting of a bone does not necessarily involve a fracture of that bone, which decision was subsequently followed by the Patna High Court in Mutukdhari Singh v. Emperor, AIR 1942 Patna 376. The High Court pointed out that this Court in Horilal's case had disapproved the view expressed in these decisions and therefore the statement in Modi was no longer good. It further observed that the learned Magistrate had adopted the role of a medical expert and made certain observations for which there was no basis whatever. In particular, it referred to the observation made by him that a partial cut of the skull vault is seldom so prominent except when excessive force is used in inflicting the injury and that because the impression of the alleged fracture is white in colour, it supports the defence assertion that a wire must have been placed on the skull before the film was exposed to X-ray equipment. According to the High Court, these were mere surmises and conjectures and the learned Magistrate could not have discarded the testimony of Dr. O. P. Goyal, CW 1 based on the X-ray report saying that there was a grievous hurt. Accordingly, the High Court reversed the acquittal and convicted the appellant under S. 326 of the Indian Penal Code.