MATHAI versus STATE OF KERALA

ARIJIT PASAYAT, J. Leave granted. Appellant calls in question legality of the judgment rendered by a learned A 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

pp. 451–452, margin G

sentence of two years rigorous imprisonment. Learned Judicial First Class B Magistrate, Kolencherry convicted the accused and sentenced him which was confirmed by learned Third Additional Sessions Judge, Ernakulam. The revision applkation filed by the accused under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (in short the 'Code') was

p. 452

dismissed by the impugned order. C The prosecution case is that on 27.10.1992 at about 5.30 p.m. while Krishnan Kutty (PW-I) 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-I was taken to the Medical Mission Hospital, Kolencherry for treatment. On the ba>is of Ext. PI statement given by PW- I, Kumaran (PW-

p. 452

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 Collrt.

p. 452

. '

p. 452, margin D

The accused denied the charge. Thereupon the prosecuti?n examined ten witnesses to further its case. It was not seriously disputed during trial that PW-I sustained injuries on the date of occurrence as alleged by the prosecution. Immediately after the occurrence, PW-I was taken to the Medical Mission Hospital, Kolencherry where he was examined by Dr. Reji Paul

p. 452, margin D

(PW-9) who issued Ext. P7 Wound Certificate. Ext. P3 is the Discharge F Certificate issued by Dr. R.V. Devdas (PW-5). Thus, the medical evidence in the case shows that PW-I had sustained the injuries as stated by him.

p. 452, margin E

The courts below placed reliance on the evidence of the injured who was examined as PW-I and found that his evidence was corroborated by the

p. 452, margin E

evidence of Narayan (PW-2), who claimed to be an eye-witness. Accordingly, conviction was made and sentence imposed which has been upheld by the High Court.

p. 452, margin E

In support of the appeal, learned counsel for the appellant submitted that the evidence of PWs. I and 2 should not have been relied upon by the

p. 452, margin G

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 !PC. In any event, it was submitted that the appellant has suffered imprisonment for a major portion of the awarded and as more than a decade has already elapsed, the sentence to be suitably modified.

pp. 452–453, margin G

In response, learned counsel for the respondent submitted that was the victim and there was no·reason as to why he would falsely the accused. According to him, the courts below have rightly placed on his evidence which was corroborated by the evidence of PW-2. The evidence clearly shows that a grievous hurt was caused and considering fact that a big stone was used, Section 326 !PC has been rightly applied.

p. 453, margin A

We find that PW-I is the victim of the assault allegedly made accused. His evidence is clear and cogent. As he was a victim, in the of any material to show as to why he would falsely implicate the accused, evidence has been rightly relied upon. PW-2's evidence has also corroborated his evidence.

p. 453, margin C

The residual question is whether the factual position indicates grievous hurt was caused and whether the weapon used was a dangerous weapon. The doctor who exa111ined the injured noticed following l. Lacerated wound over the left posterior partial region of 2. Fracture of the left upper second incisor tooth involving and the root. Alleged cause of the injury is 'assault'. Opinion could be as He identified his signature in Ext. P3 discharge certificate.

p. 453, margin D

Section 325 deals with punishment for voluntarily causing hurt.

p. 453, margin F

Section 326 deals with offence of voluntarily causing hurt by dangerous weapons or means.

p. 453, margin F

Section 326 provides that whoever, except in the case provided Section 335, voluntarily causes grievous hurt by means of any instrument shooting, stabbing or cutting, or any instrumen_t which, used as a weapon 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 it is deleterious to the human body to inhale, to swallow, or to receive the blood, or by means of any animal, shall be punished for life or with imprisonment of either description extend to ten years, and also with a liability to pay

pp. 453–454, margin G

Sections 325 and 326, like the two Sections immediately provide the ordinary pur.ishment and punishment under circumstances of the offences mentioned thereunder. apply to the case of causing "grievous hurt" and the two Sections to the case of 'hurt'.

p. 454, margin A

"Grievous hurt" has been defined in Section 320 follows:

p. 454, margin B

"320 Grievous Hurt The following kinds of hurt as "grievous"- First Emasculation. Secondly Permanent privation of the Thirdly Permanent privation of the Fourthly Privation of any member or Fifthly Destruction or permanent impairing

p. 454, margin C

of any members or joint. Sixthly Permanent disfiguration of the Seventhly Fracture or dislocation of a Eighthly Any hurt which endangers life sufferer to be during the space severe bodily pain, or unable

p. 454, margin E

pursuits."

p. 454, margin F

Some hurts which are not like those hurts which first seven clauses, are obviously distinguished from nevertheless be more serious. Thus a wound may cause disease or lasting injury to the victim, although it does the first seven clauses. Before a conviction for the sentence can be passed, one of the injuries defined in Section proved, and the eighth clause is no exception to the general a penal statute must be construed strictly.

p. 454, margin F

The 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.

p. 455, margin A

The heading of the Section provides some insight into the factors to be considered. The essential ingredients to attract Section 326 are : (I) voluntarily causing a hurt; (2) hurt caused must be a grievous hurt; and (3) the grievous hurt must have been caused by dangerous weapons or means. As was noted by this Court in State of UP. v. !ndrajeet 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 !PC. 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.

p. 455, margin A

In the 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 !PC. 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.

p. 455, margin E

The 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. R.P. Appeal disposed of.

p. 455, margin G