■T A V H'.TTI ,F,~KB J.—Inspector of Police v. Pedrick.
1944Present : Jayetileke J.INSPECTOB. ON POLICE v. PEDRICK et al.
867-868—M. C. Gampaha, 18,577.
Grievous hurt—Injury to bone—No fracture—Penal Code, s. 311.
An injury caused to a bone by a cut, which does not indicate that thebone was broken or cracked is not grievous hurt -within the meaning ofsection 311 of the Penal Code.
A PPEAL from a conviction by the Magistrate of Gampaha.
S.Saravanamuttu, for accused, appellants.
E. H. T. Gunasekera, C.C., for complainant, respondent.
Cur. adv. vult.
January 12, 1944. Jayetileke J.—
The first accused was convicted of voluntarily causing grievous hurtwith a knife to one Jayakody and sentenced to six months’ rigorousimprisonment. The medical evidence was to the effect that Jayakodyhad an oblique stab wound i an inch long on the left hip cutting into thehipbone.
The learned Magistrate seems to have been of opinion that the injurycaused by the first accused amounted to grievous hurt as the bone hadbeen cut. The doctor has not told us to what extent the bone had beencut.
Under section 311 of the Penal Code, an injury to a bone would not beconsidered grievous unless there is a fracture or dislocation of the bone.There is nothing in the medical evidence which suggests any dislocation-of a bone in this case.
The only question is whether the injury to the bone is a fracture.In Mating Po Yi v. Ma E Tin l, Spargo J. said: —
“ The primary meaning of the word ‘ fracture ’ is * breaking thoughit is conceded that it is not necessary in the case of a fracture of theskull bone that it be divided into two separate parts because it mayconsist merely of a crack; but the point is that if it is a crack it mustbe a crack which extends from the outer surface of the skull to theinner surface.”
This judgment was followed in Sheikh Abdullah and others v. Emperor 2.Meredith J. said : —
'* Where the evidence is merely that a bone has been cut and there isnothing whatever to indicate the extent of the cut, whether deep or amere scratch upon the surface, it is, in my opinion, impossible to inferfrom that evidence alone that grievous hurt has been caused withinthe meaning of the definition in section 320, Penal Code”.
On the evidence before me I am unable to say that the hip bone ofJayakody was fractured within the meaning of section 311. It may bethat the bone was cut to some extent but there is nothing to indicate thatit was broken or cracked.
(19 37)A. I. R. Rangoon, 253.
(1942) A. I. R. Patna, 376*
JAYATELEKE J.—Joseph t>. Kannangara.63
I am, therefore, of opinion that the first accused could not have been-convicted under section 317. I would alter the conviction of the firstaccused to one under section 315. The sentence imposed on him ought,I think, to be reduced to three months' rigorous imprisonment as thesecond accused, who has been convicted by the Magistrate under section315, has been sentenced to that term.
I see no reason to interfere with the conviction of the second accused-or the sentence passed on him.
INSPECTOR OF POLICE v. PEDRICK et al