Vs. State of Kerala  Insc 33 (12 January 2005)
Pasayat & S.H. Kapadia
out of S.L.P. (CRl) No. 2285/2004) ARIJIT PASAYAT, J.
calls in question legality of the judgment rendered by a learned Single Judge
of the Kerala High Court upholding view of the trial Court that the appellant
(hereinafter referred to as the 'accused') was guilty of offence punishable
under Section 326 of the Indian Penal Code (in short the 'IPC') and has been
rightly convicted under such provision with corresponding sentence of two years
rigorous imprisonment. Learned Judicial First Class Magistrate, Kolencherry
convicted the accused and sentenced him which was confirmed by learned Third
Additional Sessions Judge, Ernakulam. The revision application filed by the
accused under Section 397 read with Section 401 of the Code of Criminal
Procedure, 1973 (in short the 'Code') was dismissed by the impugned order.
prosecution case is that on 27.10.1992 at about 5.30 p.m. while Krishnan Kutty (PW-1) was walking along the public
road near Pulinchode Cruz Junction, the accused hit him on his head and face
with a stone causing injuries. PW-1 was taken to the Medical Mission Hospital, Kolencherry for treatment. On the
basis of Ext. P1 statement given by PW-1, Kumaran (PW-7) the Head Constable of Puthencruz
Police Station registered Crime No. 220/1992 under Ext. P3 FIR. Radhakrishnan
(PW-8), the then Asst. Sub Inspector of Police, Puthencruz took up the
investigation in the case. On completion of the investigation, V. Radhakrishnan
Nair (PW-10) the then Sub Inspector of Police, Puthencruz laid the charge
before the Court.
accused denied the charge. Thereupon the prosecution examined ten witnesses to
further its case. It was not seriously disputed during trial that PW-1
sustained injuries on the date of occurrence as alleged by the prosecution.
Immediately after the occurrence, PW-1 was taken to the Medical Mission Hospital, Kolencherry where he was examined
by Dr. Reji Paul (PW-9) who issued Ext. P7 Wound Certificate.
P3 is the Discharge Certificate issued by Dr. R.V. Devdas (PW-5).
the medical evidence in the case shows that PW-1 had sustained the injuries as
stated by him.
courts below placed reliance on the evidence of the injured who was examined as
PW-1 and found that his evidence was corroborated by the evidence of Narayan
(PW-2), who claimed to be an eye-witness.
conviction was made and sentence imposed which has been upheld by the High
support of the appeal, learned counsel for the appellant submitted that the
evidence of PWs. 1 and 2 should not have been relied upon by the courts below
and the injuries as noticed by the Doctor (PW- 5) do not constitute a grievous
injury. In addition, weapon allegedly used cannot be termed as a dangerous
weapon to attract Section 326 IPC.
event, it was submitted that the appellant has suffered imprisonment for a
major portion of the sentence awarded and as more than a decade has already
elapsed, the sentence needs to be suitably modified.
response, learned counsel for the respondent submitted that PW-1 was the victim
and there was no reason as to why he would falsely implicate the accused.
According to him, the courts below have rightly placed reliance on his evidence
which was corroborated by the evidence of PW-2. The doctor's evidence clearly
shows that a grievous hurt was caused and considering the fact that a big stone
was used, Section 326 IPC has been rightly applied.
find that PW-1 is the victim of the assault allegedly made by the accused. His
evidence is clear and cogent. As he was a victim, in the absence of any
material to show as to why he would falsely implicate the accused, his evidence
has been rightly relied upon. PW- 2's evidence has also corroborated his
residual question is whether the factual position indicates that any grievous
hurt was caused and whether the weapon used was a dangerous weapon. The doctor
who examined the injured noticed following injuries.
wound over the left posterior partial region of the head.
Fracture of the left upper second incisor tooth involving the pulp and the
cause of the injury is 'assault'. Opinion could be as alleged.
identified his signature in Ext. P3 discharge certificate.
325 deals with punishment for voluntarily causing grievous hurt.
326 deals with offence of voluntarily causing hurt by dangerous weapons or
326 provides that whoever, except in the case provided for by Section 335,
voluntarily causes grievous 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 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 for life
or with imprisonment of either description for a term which may extend to ten
years, and also with a liability to pay a fine.
325 and 326, like the two Sections immediately preceding, provide the ordinary
punishment and punishment under certain aggravating circumstances of the
offences mentioned thereunder. The two latter Sections apply to the case of
causing "grievous hurt" and the immediately preceding two Sections to
the case of 'hurt'.
hurt" has been defined in Section 320 IPC, which read as follows:
Grievous Hurt The following kinds of hurt only are designated as
"grievous"- First Emasculation.
- Permanent privation of the sight of either eye.
Permanent privation of the hearing of either ear.
Privation of any member or joint.
Destruction or permanent impairing of the powers of any members or joint.
Permanent disfiguration of the head or face.
Fracture or dislocation of a bone or tooth.
Any hurt which endangers life or which causes the sufferer to be during the
space of twenty days in severe bodily pain, or unable to follow his ordinary
pursuits." Some hurts which are not like those hurts which are mentioned
in the first seven clauses, are obviously distinguished from a slight hurt, may
nevertheless be more serious. Thus a wound may cause intense pain, prolonged
disease or lasting injury to the victim, although it does not fall within any
of the first seven clauses. Before a conviction for the sentence of grievous
hurt can be passed, one of the injuries defined in Section 320 must be strictly
proved, and the eighth clause is no exception to the general rule of law that a
penal statute must be construed strictly.
expression "any instrument which used as a weapon of offence is likely to
cause death" has to be gauged taking note of the heading of the Section.
What would constitute a 'dangerous weapon' would depend upon the facts of each
case and no generalization can be made.
heading of the Section provides some insight into the factors to be considered.
The essential ingredients to attract Section 326 are :
causing a hurt;
caused must be a grievous hurt; and
grievous hurt must have been caused by dangerous weapons or means.
noted by this Court in State of U.P. v. Indrajeet Alias Sukhatha (2000(7) SCC
249) there is no such thing as a regular or earmarked weapon for committing
murder or for that matter a hurt. Whether a particular article can per se cause
any serious wound or grievous hurt or injury has to be determined factually. As
noted above the evidence of Doctor (PW 5) clearly shows that the hurt or the
injury that was caused was covered under the expression 'grievous hurt' as
defined under Section 320 IPC. The inevitable conclusion is that a grievous
hurt was caused. It is not that in every case a stone would constitute a
dangerous weapon. It would depend upon the facts of the case. At this juncture,
it would be relevant to note that in some provisions e.g. Sections 324 and 326 expression
"dangerous weapon" is used. In some other more serious offences the
expression used is "deadly weapon" (e.g. Sections 397 and 398). The
facts involved in a particular case, depending upon various factors like size,
sharpness, would throw light on the question whether the weapon was a dangerous
or deadly weapon or not. That would determine whether in the case Section 325
or Section 326 would be applicable.
instant case considering the size of the stone which was used, as revealed by
material on record, it cannot be said that a dangerous weapon was used.
Therefore, the conviction is altered to Section 325 IPC. No hard and fast rule
can be applied for assessing a proper sentence and a long passage of time
cannot always be a determinative factor so far as sentence is concerned. It is
not in dispute that a major portion of the sentence awarded has been suffered
by the appellant. On the peculiar facts of the case we restrict it to the
period already undergone.
appellant who is stated to be in custody shall be released forthwith, unless he
is required to be in custody in connection with any of the case. The appeal is
accordingly disposed of.