ORDER
Harjit Singh Bedi, J.
1. This appeal, filed by the State of Punjab, arises out of the following facts :
2. Daljit Kaur (PWS) had been meried with Avtar Singh son of Milkha Singh accused about 15 years prior to the date of incident Her husbandhad, however, died about eight years earlier without leaving any child to her. Milkha Singh had, however, misbehaved with Daljit Kaur and had turned her out of the house and refused to give her any part of her husband’s property, and on application for maintenance had also been filed in the civil Court at Patti. The application was heard on January 20, 1997 and after attending Court, Daijit Kaur and her mother Gurpal Kaur (PW7) went to spend the night at the house of Manjit Kaur, sister-in-law (wife’s sister) of accused Milkha Singh in village Boparai. At about 11 p.m. the same night, Daljit Kaur and Gurpal Kaur were sleeping on one cot whereas Manjit Kaur was sleeping on the other cot. The other family members were sleeping in an adjoining room. The quilt covering Gurpal Kaur and Daljit Kaur was roughly pulled away and Day it Kaur woke up in the electric light saw the accused standing closely holding a Gandasi in his right hand. He gave 4-5 gandasi blows on various parts of Daljit Kaur’s body. On an alarm being raising by Gurpal Kaur, the accused ran away from the spot after scaling over the wall. Daljit Kaur was thereafter removed to the Civil Hospital, Gharyala, and was medically examined. Information was also sent to the Police Station and ASI Jatinderjit Singh (PW11) reached the Civil Hospital and made in-quiris from the doctor as to whether Daljit Kaur was fit to make a statement. The doctor opined in the negative. Similar opinions were again sought on 22nd and 23rd January, 1997 but on both occasions the doctor made an endorsement that Daljit Kaur was unfit. Daljit Kaur was declared fit on 24th January, 1997 and her statement Exhibit PD was accordingly recorded and, on its basis, the formal first information report was registered at Police Station Patti at 12.05 p.m. on 24.1.1997 for offences punishable under Sections 307 and 458 of the Indian Penal Code.
3. The trial Court concluded that the involvement of the accused stood proved from the evidence on record but in the light of the fact that injury Nos. 1 and 4 on the person of Daljit Kaur which had been declared grievous by the attending doctor had not been subjected to an X-ray examination, it could not be said that they were dangerous to life and,
in that eventuality, an offence punishable under Section 324 IPC alone could be made out against the accused. The trial Court, however, released the accused on probation under section 4(1) of the Probation of Offenders Act, 1958. The present appeal has been filed by the State of Punjab with the plea that the acquittal of the accused for the offence punishable under Section 307 of the Indian Penal Code was not called for. No appeal has, however, been filed by the accused against the judgment impugned. In view of the facts of the case, we had made aspecial order that the hearing of the appeal be expedited.
4. Mr. Randhawa, the learned Deputy Advocate General representing the State of Punjab, has suggested at the very outset that on the basis of the evidence on record a case under Section 307 of the Indian Penal Code could not perhaps be made out, but in the light of the evidence of the doctor and the fact that Daljit Kaur had suffered grievous injuries at the hands of the accused now stood proved as the accused had chosen not to file an appeal, the conviction of the accused for the offence punishable under Section 324 of the Indian Penaf Code and the subsequent release on probation was wholly unjustified. He has urged that the fact that injury No. 1 on the person of Daljit Kaur had not been X-rayed, was of little consequence in the light of the evidence of the doctor who had clearly stated that there had been a partial cut of the Maxilla. It has also been argued that injury No. 4, which was a dislocation of the teeth, clearly proved that injury too was grievous in nature and within the purview of grievous hurt as defind in Section 320 of the Indian Penal Code.
5. Mr. J.S. Verka, the learned counsel for the accused-respondent has, however, primarily argued on the merits of the case and urged that the judgment of the trial Court in making the order of conviction was wholly uncalled for and that the case of the prosecution was not free from doubt, he has also urged that from the medical evidence it was clear that no offence, other than the one under Section 324 of the Indian Penal Code, had been made out against the accused-respondent.
6. We have considered the arguments advanced by the learned counsel very carefully. We first reproduce the injuries found on the person of the injured Daljit Kaur as under:
1. An incised wound 11 cm x 3 cm present on the upper lip and right lateral aspect of the cheek starting from the middle of the upper lip in the midline. Blood clots present in the wound. Wound was bone deep, underlying bone i.e. maxilla was cut partially.
2. An incised wound 5 cm x 1 cm present on the upper lip and right cheek. Wound was muscle deep.
3. An incised wound 4 cm x 1 cm present below injury No. 2. Blood clots present in the wound. Wound was muscle deep.
4. An incised wound 10 cm x 3 cm present on the lower lip and right cheek. Blood clots present in the wound and wound was bleeding. Wound was bone deep and lower mandible was partially cut. Lower four teeth were moving freely and bleeding.
5. An incised wound 5 cm x 1 cm present on the left side of cheek starting from the left angle of mouth. Wound was bleeding and muscle deep.
7. Injury Nos. 1 and 4 were declared as grievous whereas injury Nos. 2, 3 and 5 as sim-ple in nature. The probable duration of injuries was 12 hours. Kind of weapon for all injuries was sharp edged weapon. The doctor also opined that the aforesaid injuries could be dangerous to life though he admitted that he had not advised that an X-ray of Injury Nos. 1 and 4 be conducted. We are of the opinion, however, that notwithstanding this omission the fact that the Maxilla was cut partially finds clear mention in the report. Dealing with such a situation, the Hon’ble Supreme Court in Hori Lol and another v. State of Uttar Pradesh, 1969 CAR 398 (SC) observed that it was 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 the bone and that if there is a break by the cutting or splintering of the bone or there was a rapture or fissure in it, it would amount to a fracture within the meaning of clause 7 of Section 320 of the Indian Penal Code. This judgment was followed by a Division bench of this Court in Narinder Singh v. Sukhbir Singh and others, 1993(1) Recent Criminal Reports 44. It is evident
from the description of Injury No. 1 given by the doctor that the wound was bone deep, the maxilla underlying the wound had been partially cut and that the cut was visible to the naked eyes. In the light of the observations of the Supreme Court in Hori Lal’s case (supra), we are of the opinion that the aforesaid injury was clearly grievous in nature.
8. Clause Seventhly of Section 320 of the Indian Penal Code states that a fracture or dislocation of a bone or tooth would be designated as a grievous hurt. The doctor stated that the lower four teeth were moving freely and bleeding. In other words, they had become totally loose. The word1 “dislocation” has been defined in Chambers Dictionary to mean “to displace; to put out of joint”. This is precisely what the doctor had noted while describing injury No. 4. We are, therefore, of the opinion that injury No. 4 was also clearly grievous in nature. In the light of the aforesaid facts, the judgment cited by Mr. Verka State of Punjab v. Manga Singh and another, 1992(2) RCR (Crl.) 144 cannot come to his aid. We, therefore, find that a case under Section 326 of the Indian Penal Code is clearly made out against the accused.
9. We have also heard Mr. Verka on the question of sentence. It has been pointed out by Mr. Verka that the accused was by now 77 years of age and that his family was also suffering from adverse circumstances in that his only son had died and of two of his married daughters, one had become a widow and she along with her daughter was living with him and, as such, the accused should be leniently dealt with on the question of sentence. We have considered this aspect very carefully and find that a severe sentence is not called for in these circumstances.
10. We, therefore, allow the appeal and set aside the conviction of the accused under Section 324 of the Indian Penal Code and order his conviction for an offence punishable under Section 326 of the Indian Penal Code. We sentence him to undergo RI for six months and to pay a fine of Rs. 10,000/- and in default of payment thereof, to undergo further imprisonment for one month. We also impose a sentence of six months RI for the offence punishable under Section 458 IPC but direct that the same shall run concurrently with the sentence already imposed under the preceding section. The fine, if recovered, shall be paid be Daljit Kaur complaint.
The appeal is allowed in the above terms.
11. Appeal allowed.
