Shearer, J.The petitioners, who are four in number, have been convicted in respect of an assault committed on one Makund. Makund was the servant of one Baldeo Narain. On 3rd February 1941, he was watching some khesari belonging to his master. The land on which the khesari was grown had been purchased by Baldeo Narain at a sale in execution of a decree. Formal delivery of possession over it had been obtained by him on 31st December 1940. It appears that the petitioners or some of them, had once had an interest in this land and that they went to it armed and proceeded to cut the khesari. When Makund remonstrated with them he was assaulted, the petitioner, Awadh Bihari, striking him with a blow with a garasa on the leg and the petitioner, Ganga Singh, striking him a couple of blows with a lathi one on each of his arms. Awadh Bihari was convicted u/s 326, Penal Code and was sentenced to undergo rigorous imprisonment for one year. The point taken on his behalf by Sir Manmatha Nath Mukherji is that the injury which be caused to Makund did not amount to grievous hurt as defined in Section 320, Penal Code. The sub-assistant surgeon who examined Makund said that the two contusions which he found on his arms were "simple in nature," thereby implying that the other injury on the leg was grievous. The sub-assistant surgeon did not however say so in so many vords. He described the injury as "an incised found 3" x 3" x 1" on the lower part of the left eg cutting the bone underneath." He did not say o what extent the bone had been cut or damaged. Sir Manmatha Nath Mukherji has referred to a decision of the Rangoon High Court in Maung Po Yi v. Ma E Tin AIR 1937 Rang. 253 in which it was observed that the jutting of a bone does not necessarily involve a failure of that bone. The evidence as to the extent of the damage done to the bone in Makunds leg being conclusive, it must, in my opinion, be held that he offence committed by the petitioner, Awadh Bihari, was not shown to amount to grievous hurt. That being so, his conviction will be altered from Dne u/s 326 to one u/s 324, Penal Code. The sentence imposed on him ought, I think, also to be reduced from one on rigorous imprisonment for me year to one of rigorous imprisonment for six months.

2. The other three petitioners were convicted u/s 326 read with Section 34, Penal Code, and were each sentenced to undergo rigorous imprisonment for six months. It appears that Makund ran away and was pursued and eventually overtaken at some little distance from the field by Awadh Bihari who struck him with a garasa, and by Ganga Singh who struck him with a lathi. Bamprit Singh (P. W. 4) said that each of the petitioners chased Makund and an attempt has been made to support the convictions on the ground that, although Matukdhari and Lai Bihari took no part themselves in the assault, they joined in the pursuit of Makund. It is not at all clear from the evidence that these two men really pursued Makund to any distance. It may be that they ran at him or after him, but presumably their intention in so doing was merely to scare him away from the land so that they and their labourers might continue to out the khesari without further interruption. Admittedly they soon stopped and did not go up to Makund or strike him or molest him in any way. In these circumstances it is, I think, quite impossible to apply Section 84, Penal Code, and make either Matukdhari or Lal Bihari constructively liable for the assault committed by the other two men. The petitioner, Ganga Singh, who struck Makund twice with a lathi ought to have been convicted u/s 323, Penal Code, and his conviction will be altered accordingly. The sentence will however be reduced from one of rigorous imprisonment for six months to one of rigorous imprisonment for three months.

3. The petitioners were also convicted u/s 379, Penal Code, but no separate sentence was imposed on them. This conviction will be maintained and, in the case of the petitioners, Matukdhari and Lai Bihari, the sentence imposed will be the period of rigorous imprisonment already undergone. Subject to these modifications the convictions and sentences are affirmed and the rule is discharged.

Meredith, J.

4. I agree. 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, in my opinion, impossible to infer from that evidence alone that grievous hurt has been caused within the meaning of the definition in Section 320, Penal Code.