JUDGMENT D.P.S. Chauhan, J.

1. Appellant Babloo alias Sujeet, after having been convicted in S. T. No. 195/91 under Section 307, I.P.C., wherein he was awarded R. I. for 5 years together with a fine of Rs. 500/- and under Section 324, I.P.C. for causing injuries to two persons, namely Motilal and Ganesh and sentenced to 4-4 months' R. I. on the said counts together with a fine of Rs. 100-100/-, approached this Court by means of present appeal for setting aside the conviction and sentence.

2. The appellant is resident of village Madhia. district Sagar and appears to be a religious person as the occurrence in question look place when theappellant, complainant Shuilendra, Motilal and Ganesh were participating in a Keertan. The alleged incident took place on 24th August, 1990 in village Madhia during the night hours while the Keertan at the resident of Rama (P.W. 10) was going on. The report of the occurrence was lodged by Shailendra (P.W. 11) at about 2.00 a.m. in the night the same day at P.S. Cantt. Sagar. which is Ex.P/9, In the alleged incident Shailendra, Motilal and Ganesh received injuries.

3. According to prosecution, in the night of 24th August, 1990 at the house of Rama (P.W. 10) in village Madhia Keertan was going on, wherein complainant Shailendra (P.W. 11) was present and he was playing. jhoola (musical instrument). Motilal (P.W. 12), Lalloo Patel (P.W. 13) and Ganesh (P.W. 14) were also participating in the said Keertan. while Keertan was going on the accused-appellant is said to have taken said 'Jhoola' from the hands of complainant Shailendra. which was objected to by him. whereat the accused-appellant caught him and took him out side the house of Rama (P.W. 10) and inflicted knife injuries on his chest as well as leg. Motilal (P.W. 12') and Ganesh (P.W. 14) who went there to pacify the matter were also inflicted injuries by knife by the accused-appellant. However, the matter could be pacified by Lalloo (P.W. .13) and Rama (P.W. 10). Thereafter the report of the alleged incident was lodged by Shailendra (P.W. 11) at P.S. Cantt. Sagar and a case was registered as Crime No. 325/90. After investigation of the crime, charge- sheet was submitted that the case was handed over to the Sessions Court.

4. Before the Sessions Court the prosecution examined as many as 16 witnesses. Ramkishan, the witness of seizure of clothes of Shailendra was examined as P.W. 1 Dr. V. K. Mishra Radiologist, who performed the X-ray of the injuries on the persons of Saliilcndra was examined as P.W. 2. Dr. B. R. Agrawal. who medically examined Shailendra (P.W. 11),Motilal (P.W. !2)and Ganesh(P.W. 14), was examined as P.W. 3. Mevalal, the witness of fact was examined as P.W. 4 Bhagwandas, who is also the witness of fact, was examined as P.W. 5. Ramesh Kumar, Head Constable, was examined as P.W. 6. Dhanpatram, the Head Constable, who got the site plan prepared, was examined as P.W. 7. Dinesh Kumar, Constable, who produced the copy of the F.I.R. in the Court of Chief Judicial Magistrate, was examined as P.W. 8. Manmohan. a Lecturer, who was (he witness of seizure of clothes of Shailendra, was examined as P.W, 9. Rama the person in whose house the 'Keertan' was being performed was examined as P.W. 10. Shailendra, the complainant, was examined as P.W. 11. Motilal the person who received injury was examined as P.W. 12. Lalloo Patel, the witness of occurrence was examined as PW. 13. Ganesh, the person who received injuries was examined as P.W. 14. Dr. Prafulla Kumar Dhagat, Surgical Specialist, who performed the operation on the person of Shailendra was examined as P.W. 15 and Sarvjeet Singh Chahal, the Investigating Officer, was examined as P.W. 16.

5. As usual, the defence was that of denial.

6. Heard the learned counsel for the appellant and learned Panel Lawyer for the Stale.

7. The appeal has come up for hearing after having been expedited and the hearing of the appeal was expedited on the statement of the learned counsel for the appellant that it is a case where he would not like to address the Court on the matter. He will pray for treating the accused-appellant under section 360/361, Cr. P.C. Learned counsel for the appellant was heard on 26-8-1994 and there was a difficulty before the Court for giving benefit of provisions of section 360/361, Cr. P.C. on account of the fact that the offence Under Section 307, I.P.C. was punishable to life imprisonment and further the sentence was coupled with the liability of the fine. In view of this, learned counsel for the appellant is granted leave to address the Court on the merit of the matter.

8. Now heard the learned counsel for the appellant and the learned counsel for the State on the merit of the matter.

9. Learned counsel for the appellant submitted that firstly the conviction of the appellant under section 307,1.P.C. as per the material on the record is unsustainable in the eyes of law. In the alternative he submitted that having regard to the facts and circumstances of the case especially the back-ground that the accused and the complainant had no animus inter se and the occurrence which had taken place at the sudden impulsive act and that too occurred at a place where songs (Bhajan) in the name of God were being sung and as such the appellant's sentence is excessive, if the appellant is found guilty either of Section 307, I.P.C. or under any other provision of the I.P.C. then the sentence may be considered to that already undergone. Learned counsel for the appellant further submitted thai if law permit in the facts and circumstances of the case, the appellant may be treated either under section 360 or 361, Cr. P.C.

10. In support of the first submission, learned counsel for the appellant pointed out that "the prosecution has failed to establish the intention or knowledge on the part of the appellant that he by that act could have caused death. The fact is that appellant Babloo and complainant Shailendra (P.W. 11) both were attending the "Keertan" at the residence of Rama (P.W. 10). Shailendra, the complainant was playing "Jhoola" and the accused-appellant took that "Jhoola" from the Hands of complainant Shailendra (P.W. 11) and started playing himself, which was objected to by the complainant Shailendra which gave an impulsive action to the appellant, he caught hold of him and took him out from the place of 'Keertan' and thereafter caused knife injuries. One injury was at the chest and the other was at the back. During the course of pacification by Motilal (P.W. 12) and Ganesh (P.W. 14) they were also caused knife injuries by the appellant. These circumstances clearly go to indicate that appellant had no intention and also no knowledge that his act is such which may cause death. The facts also indicate that everything was in sudden impulse as when the impulse passed away on pacifications by Lallo Patel (P.W. 13) and Rama (P.W. 10), the appellant ran away.

11. The injuries received by complainant Shailendra (P.W. 11), Motilal (P.W. I2)and Ganesh (P.W. 14) are mentioned here-in-below :-

The injuries as found by Dr. B. R. Agrawal (P.W. 3) on the person of complainant Shailendra (P. W. 11) as per Ex.P/4 are as :-

1) Two stab wounds on lower part of left scapu lar region each size 1 1/2 x 1/2 x cavity deep, Margin clean cut with fresh bleeding from wounds. Direction oblique.

(2) One stab wound on lower part of left side of chest anteriorly in 7th I.C. Space 2" from axillary line.

Margin clean out with fresh bleeding and air is coming out from wound.

Size 1 1/2 " x 1/2" x. Cavity deep. Direction oblique.

The injury as found by Dr. B. R. Agrawal (P.W. 3) on the person of Motilal (P.W. 12) as per Ex.P/5 is as:-

(1) One incised wound on upper part of left forearm on ills back surface. Size 1" x 1/2" x muscle deep.

Margin clean cut. Clotted blood and fresh blood present. Direction horizontal.

The injury as found by Dr. B. R. Agrawal (P.W. 3) on the person of Ganesh (P.W. 14) as per Ex.P/6 is as:

(1) incised wound-On lower part of Rt forearm on anterior aspect.

Size 3/4" x 14" x muscle deep.

Margin clean cut. Direction Longitudinal.

Clotted blood and fresh blood present.

12. Further the prosecution examined Dr. B. R. Agrawal as P.W. 3. He examined the injuries on the person of Shuilendra, the complainant (P.W. 11 (but did not give opinion about the nature of the injuries as to whether the injuries were grievous or simple. One injury was regarding rupture of one lung and X- ray was performed by Dr. V. K. Mishra (P.W. 2), Radiologist and his report is Ex. P/2 on the record. This report also does not indicate about the nature of the injury which was found on the person of Shailendra (P.W. 11). Injuries on the person of Motilal and Ganesh were of minor nature. In view of this it cannot be held that the prosecution has established the guilt of the appellant under Section 307, I.P.C. Dr. B. R. Agrawal (P.W. 3) only stated that from the injury on the lung air was coming out which indicates the rupture of the lung. Now the question comes as to under which provision of the I.P.C., in the facts and circumstances of the case, the liability of the guilt can be fastened against the appellant.

13. Learned Panel Lawyer submitted that it is a case which is fully covered by Section 326, I.P.C. as the injury has been caused by the appellant voluntarily and the nature of the injury is grievous and this was caused by an instrument of stabbing or cutting. Learned counsel for the appellant submitted that the injury as stands as per injury report which is on the record, but either Dr. B. R. Agrawal (P.W. 3) or Dr. V. K. Mishra(P.W. 2) has not expressed any opinion as regards the nature of the injury whether it was grievous hurt or simple hurt. This fact is not denied by the learned State counsel. But learned State counsel submitted that from the nature of the injuries which are on the record the Court one can form an opinion as to whether injuries on the person of Shailendra (P.W. 11) were simple or grievous. He placed reliance on a case of Madan Lal v. State of H. P. (1989 (2) Crimes 373 : 1990 Cri LJ 310 (HP)), which is a decision of Himachal Pradesh High Court. He invited the attention of the Court to paragraphs 16 and 17 where the Court has considered 'Principles and Practice of Medical Jurisprudence', 11 th Edition, page 230, by Taylor and the other by Modi Known as 'Medical Jurisprudence and Toxicology', 13th Edition, page 238. Learned counsel pointed out that Modi has stated : "Danger to life should be imminent before the injuries arcdesignated 'dangerous to life', such injuries are extensive, and implicate important structures to organs, so that they may prove fatal in the absence of surgical aid." Learned State counsel emphasised on the words "Important structures to organs" and submitted that the lung is an important structure to organs of the body of the human being. So far as the submission is concerned, it is right but the doctor had not designated such injury as is in the present case as "dangerous to life". Apart from this, Taylor has stated that the meaning of the words "dangerous to life" is left entirely to the professional knowledge of a witness.

14. In the present case the doctor has not said anything regarding the nature of the injuries, whether they were dangerous to life or not. The doctor was examined and he was a person professionally sufficient for giving opinion. Learned counsel for the State submitted that material is there and the Court can form an opinion regarding the character of the injuries. I doubt that this submission of the learned counsel if worth acceptance. In the case of Gambhir v. State Of Maharashtra., , Supreme Court in para 30 considered the matter regarding the formation of the opinion by the Court, in respect of the matter relating to the opinion of the doctor. In that case the High Court came to its own opinion when the doctors failed to give opinion. The relevant passage is as extracted below :-

"30....The Court has to draw its conclusion on the basis of the materials supplied by the expert opinion. The High Court has tried to usurp the functions of an expert.."

From the said case it is established that the Court cannot usurp the functions of an expert and as such it is not possible for this Court to assume role of an expert and to express its own opinion regarding the nature of the injury, as to whether the injury was grievous in nature or not.

15. Thereafter learned State counsel while placing the facts before the Court submitted that is has come in the evidence that Shailendra, the complainant, was hospitalised with effect from 24-8-1990 to 13-9-1990 and he was discharged on 13-9-1990. He submitted that if terminus dates are included then it becomes 20 days and hospitalisation comes for a space of 20 days and accordingly it would be griev ous injury having been covered under clause eighthly of section 320, I.P.C.

16. The injured was discharged from the hospital on 13-9-1990 and as such 13th day of September, 1990 cannot becounted as a day of his hospitalization where in Section 320, IPC clause eighthly the words mentioned are "space of twenty days". The word "space" has got its significance and space read with words "twenty days" will make it clear that it should be twenty clear days. In this view of the matter, the hospitalization was not for a space of 20 days. Further from the record it has not been shown that during this period, as relied on by the learned Slate counsel, the complainant suffered severe bodily pain. Further learned State counsel submitted that though severe bodily pain is not established by the prosecution, but from the material on record it can be seen that the complainant was unable to follow his ordinary pursuits. The two things are there; firstly, it has not been established that the sufferer suffered severe bodily pain during the space of twenty days and it has not been established by evidence that the sufferer was unable to follow his ordinary pursuits. In this connection learned counsel for the appellant placed reliance on a decision of State of Gujarat v. Samaj 1969 Cri LJ 1498 where the Gujarat High Court has considered the requirement of clause eighthly of Section 320, IPC. He placed reliance on para 5 of the said case and in that case the hospitalization was for a period of 20 days and the argument was that naturally or rather necessarily he would not be able to follow his ordinary pursuits. The Court held that what is required to be established is that there must be hurt caused to the person and that he was unable to follow his ordinary pursuits during the space of 2.0 days. Both the ingredients have got to be established by the prosecution and it would not be enough to say that he remained in the hospital for 20 days. The mere fact that he remained in the hospital would not be enough to conclude that he was unable to follow his ordinary pursuits during that period. The Gujarat High Court relied on the case of Queen Empress v. Vasta Chela (1895) ILR 19 Bom 247, where in similar circumstances it was held that in the absence of any evidence that the injured person was unable to follow his ordinary pursuits during the space of twenty days, such an inference could not legally be drawn. Before a conviction can be passed for the offence of grievous hurt, one of the ingredients specified in section 320 of the ipc must be strictly proved, and that the eighth clause is no exception to the general rule that a penal statute must be construed strictly. The Court in the said reported case also observed that in the absence of any evidence to that effect, such an inference cannot legally be drawn. It has been further observed that an injured man may be quite capable of following his ordinary pursuits long before twenty days are over, and yet for the sake of permanent recovery of greater care or confort be willing to remain as a convalescent in a hospital, especially if he is fed at the public expense.

17. Learned State counsel next invited the attention of the Court to Ex. P/11, which is a letter written by Dhanpat Ram (P.W. 7), addressed as which contains the endorsement dated 27-8-1990 to the following effect:-

‘‘श्रीमान असि. सर्जन महो. साहब’’...........

27-ंउचय8-ंउचय90 1.30 पी.एम.

डतेण् त्ण्व्ण्

ंइवअमण्

चोटें प्राण घातक थी चोटें गंभीर और प्राणघातक थी जी हा । मृत्यु संभव थी आ सकती है चूंकि फेफड़ा फट गया है A i- l- i=+ v-

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18. Dhanpatram (P.W. 7) has proved the contents or his letter (Ex. P/l1). He cannot prove the report of the doctor as he has not stated that he has seen the doctor writing and signing on Ex.P. 11. The doctor in his examination has not stated anything. Further this letter does not indicate as to whom it was addressed and it does not disclose in clear words as to what is the name of the doctor. Thus it cannot be accepted as a document for the purpose of opinion of the doctor, as an expert witness. Further on this basis Ex.P/l1 is not the document which gave the opportunity to the appellant to cross-examine the doctor. Accordingly it is not a case of grievous hurt.

19. In view of the finding that the injury was not the grievous hurt Sections. 325 & 326, IPC would not be attracted as the grievous hurt is an essential ingredient therein. Now remains Section 324, IPC is as extracted below :-

"324. Whoever, except in the case provided for by Section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing, or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."

Ingredients of Section 324, IPC regarding voluntarily causing hurt by means of any instrument for shooting, stabbing, or cutting are established by the prosecution. The appellant is accordingly guilty for committing the crime under Section 324, IPC while inflicting the injuries on the person of Shailendra (P.W. II). His conviction under Section 324, IPC for causing injuries on the person of Motilal (P.W. 12) and Ganesh (PW. 14) is maintained.

20. Learned counsel for the appellant submitted that Under Section 324, IPC the punishment as provided is either three years imprisonment, -or fine or both. According to learned counsel for the appellant, the appellant has already undergone one year and two months imprisonment and he submitted that in the facts and circumstances of the present case that the appellant is young lad of 20 years and is at the threshold of his career, the jail imprisonment will not serve any useful purpose especially in the cir- cumstances of the back-ground of the present case that there was no earlier animus and everything happened impulsively may be on account of over sensitivity of the appellant.

21. In Jaya Mala v. Home, Secy., Govt. of J. & K., , the Supreme Court observed as under:-

"9.... One cannot treat young people, may be immature, may be even slightly misdirected, may be a little more enthusiastic, with a sledge hammer...."

Thus taking in view the entire facts and circumstances of the case I consider that ends of justice would be fully met if accused-appellant Babloo alias Sujeet is awarded sentence of one year and two months under Section 324, IPC, which according to the learned counsel for the appellant, the appellant has already undergone. The sentence as awarded on the appellant under Section 324, IPC for inflicting injuries on Motilal (P.W. 12) and Ganesh (P.W. 14) was four months on each count, which was to run concurrent. Thus, the appellant who has undergone the imprisonment of one year and two months be released forth with in case he is not wanted in any other crime.

22. The appeal is accordingly partly allowed.