R.L. Gupta, J.
1. This criminal revision is directed against the judgment passed in appeal No. 6/71 by the Additional Sessions Judge, Udaipur on 15.2.1974. That appeal was preferred against the judgment of the Assistant Sessions Judge, Udaipur on 30.1.1971.
2. The Assistant Sessions Judge, Udaipur, convicted the petitioner Jagga under Section 307 IPC and sentenced him to undergo rigorous imprisonment for a period of 1 1/2 years and to pay a fine of Rs. 500/-, in default of payment of fine to under go further rigorous imprisonment for a period of 2 months, Petitioner Mst. Raji who is the wife of Jagga, and Rupa who is the son of Jagga were also convicted Under Section 307 r/w Section 109 and 323 IPC. For the offence Under Section 307 r/w 109 IPC each of there was sentenced to undergo simple imprisonment for a period of two months and pay a fine of Rs. 500/-; for the offence under Section 323 IPC each of them was sentenced to pay a fine of Rs. 200/- and in default of payment of fine to undergo ample imprisonment for a period of two months.
3. On appeal the learned Additional Sessions Judge, Udaipur, maintained the conviction and sentence of the appellant Jagga for the offence under Section 307 IPC He however set aside the conviction and sentence of Mst. Raji and Rupa for offence under Section 307 r/w 109 IPC and they were acquitted of the same. The conviction and sentence of Mst Raji Under Section 323 IPC were maintained. The conviction of Rupa Under Section 323 IPC was maintained but he was given the benefit of the provisions of Section 6 r/w Section 4 of the Probation of Offenders Act and he was released on probation of good conduct.
4. Aggrieved by their convictions and sentence Jagga and Mst. Raji have preferred this revision.
5. The brief facts of the prosecution case are that on 17.4.1969 at about 3.30 pm. Rupa and his son Bhura were on the well called 'Bhartiya'. The goats of Bhura entered into the field of Jagga in which the crop of chillies was growing The petitioners Jagga and Mst. Raji and their son Rupa were there in the field and they started giving beating to the goats and hurled abuses. Bhura went to the field of Jagga to take out the goats. Mst. Raji & and Rupa started giving him beating and jagga gave a 'Kulhari' blow on the head of Bhura Rupa the father of Bhura when he went to rescue his son was also hurled which stones by Mst. Raji and the accused Rupa. On alarm being raised by him Dau and Ajaba reached there to rescue them. Some more persons had also reached on the spot. Rupa the father of Bhura, logged the report Ex. P. 13 at the police station Bhim on the same day at 6.30 pm. Rupa and Bhura were examined for there injuries at the Todgarh Dispensary by Dr. A.K. Tiwari found on the person of Bhura an incised wound 2 1/2' x 1/2 x bone deep on the left side of the head in the region of parietal bone and 2 bruises on the right arm and right hand, The injury No. 1 was caused by sharp weapon while injuries No. 2 and 3 were caused by blunt weapon X-ray was conducted on 22.5 1969 in the General Hospital, Udaipur and it was opined that there was a stellate fracture of the right parietal bone. Five simple injuries caused by some blunt weapon were found on the person of Rupa vide injury report Ex. P. 11. Accused Jagga was arrested by the police on 15.5.1969 and on his information 'Kulhari' was recovered on the some day. After investigation the petitioners and their son Rupa were challaned and were tried by the Assistant Sessions Judge, Udaipur. They were convicted and sentenced as aforesaid.
6. The contention of the learned Counsel for the petitioners is that there is no independent evidence against the petitioners. Dau has turned hostile. Bhura and Rupa are interested persons. Ajaba has deposed that lie has not seen 'Kulhari' in the hands of jagga. Moreover the recovery of the 'Kulhari' is not satisfactory as it was recovered more than one month after the incident. Thus his contention is that the petitioners are entitled to acquittal. His next contention is that in any case, the offence against the petitioner Jagga does not travel beyond the ambit of Section 324 IPC.
7. As regards the first contention, it may be said that the trial court as well is the appellate court have given a concurrent finding that it, was jagga who inflicted a 'Kulhari' blow on the person of Bhura. Simply because Bhura is the injured and Rupa is his father, it cannot be said that, they are interested witnesses. In fact there was no animosity between the petitioners and these witnesses prior to the incident. When the goats belonging to them went into the field of the petitioners, the petitioner became enraged & when, Bhura saw his goats having entered into the field of the petitioners it was natural for him to have gone to the field to tike them out, the petitioners game him beating. Their evidence is also corroborated by the medical evidence I therefore, do not find any reason to differ with the findings of the lower courts that lagga inflicted a 'Kulhari' blow on the person of Bhura & Mst. Raji also beat Bhura and Rupa. Mst. Raji has therefore, been rightly convicted for the offfence under Section 323 IPC & I do not find any reason to set aside her conviction and sentence as passed by the Additional Sesssion Judge, Udaipur.
8. The point how ever arises whether the offence committed by jagga falls under Section 307 IPC or under Section 326 IPC or 324 IPC. It has been pointed out in Surja Parsad v. State of Bihar A.I.R. 1965 Supreme Court 843, that the burden is upon the prosecution to establish that the intent ion of the appellant in causing the particular injury was any of the three kinds referned to in Section 300 IPC. For, unless the prosecution discharges, the burden the offence under Section 307 IPC cannot possibly be brought to the appellant. The state of appellant's mind has to be deduced from the surrounding circumstances. The existence of a motive to cause the death would be a relevant circumstance. In the present case, as in the case cited above, the prosecution led no evidence from which it could be inferred that the petitioner Jagga had a motive to kill the victim of his attack. There was also no enmity with the victim. The goats of the complainant went into the field of the petitioners which had chillie crop there in and the injured Bhura went into the field to take the goats out the petitioners beat him simply to chastise him. It cannot be said that there was an intention on the part of the petitioner to cause murder or to cause such injury which might have resulted in death. No such inference could possibly be made in the facts and circumstances of the present case. The act of the petitioner Jagga does not travel to the extent of an offence under Section 307 IPC.
9. The next point of consideration is whether it is an offence under Section 324 or 326 IPC. The injured Bhura revived a stellate fracture. This fracture is one in which there are numerous fissures radiating from the central point of injury. Fissured fracture has been defined as one in which there is an incomplete break, a crack or fissure extending into, but not through a bone (Blackiston's New Guild Medical Dictionary). The learned Counsel for the petitioner has contended that it cannot be termed as grievous, hurt under Section 320 IPC. He had relied upon Mukutdhari Singh and Ors. v. Emperor A.I.R. 1942 Patna 376; and Maung Po Yi v. Ma E T in and Anr. A.I.R. 1937 Rangoon 253. He argues that where the evidence is merely that a bone has been cut and there is nothing whatever to indicate the extent of the cut, whether deep or a mere scratch upon the surface it is impossible to infer from that evidence alone that grievous hurt has been caused within the meaning of Section 320 IPC. In the present case there was the stellate fracture of the parietal bone. This is a fracture in which there are numerous fissures radiating from the central point of injury. Fissured fractutre is one in which there is no displacement of the fragments. A crack which does not involve both the tables of skull bone may amount to a fracture of a bone Both outer and inner tables of the skull bone may be considered to be bones by themselves and the fracture of outer or inner able by itself can be taken to be a fracture of of a bone within the meaning of Section 320 IPC. In the present case there is a stellate fracture of the right parietal bone. This incised injury on the person of Bhura is 2 1/2' X 1/2' X bone deep. It can, therefore, be said that it was a grievous one within the meaning of Section 320 IPC. This injury was caused by Jagga by a 'Kulhari' a sharp object. His act, therefore, is an offence Under Section 326 IPC. His conviction Under Section 307 IPC needs to be altered to one Under Section 326 IPC. He was sentenced to imprisonment for 1 1/2 years for the offence Under Section 307 IPC. The sentence imposed on him ought, I think also to be reduced. He had already undergone imprisonment for more than a year including the period of his dentention during the trial etc. for which he is entitled to benefit of the provisions of Section 428 Cr.P.C. He sentence is therefore, reduced to one already undergone.
10. Petitioner Mst. Raji has been convicted for the offence Under Section 323 IPC and sentenced to pay a fine of Rs. 200/- for causing simple hurt to Bhura and Rupa. There is no reason to interfere in her conviction and sentence.
11. The result is that the revision is partly accepted The conviction of the petitioner Jagga is altered from Section 307 IPC to Section 326 IPC and the sentence is reduced to imprisonment already undergone and a fine of Rs. 100/- in default of the payment of fine he shall undergo simple imprisonment for one month. The conviction and sentence of petitioner Mst. Raji is maintained. Three months time is allowed to the petitioners to deposit the amount of fine, if not already deposited.