Karnataka High Court
The State Of Karnataka By Kakati Police ... vs Parashram Kallappa Ghevade, Ranaba ... on 30 August, 2006
Equivalent citations: 2007CRILJ479, 2007 CRI. L. J. 479, (2006) 48 ALLINDCAS 259 (KAR), 2006 (6) AIR KANT HCR 114, 2006 (48) ALLINDCAS 259, (2006) ILR (KANT) 3514, 2006 (56) ALLCRIC 38 SOC, (2006) 4 ALLCRILR 744, (2006) 5 KANT LJ 522
Author: V. Jagannathan
Bench: V. Jagannathan
JUDGMENT
1. The main grievance of the State, against the order of acquittal passed by the learned JMFC, Belgaum, is that the trial court while acquitting respondents No. 1 and 2, committed an error in so far as the offence is concerned and instead of convicting them for the offence under Section 326 of IPC, the trial court had convicted them under Section 324 of IPC and further releasing the two accused persons under the Probation of Offenders Act is also erroneous in law.
2. We have heard learned High Court Government Pleader, Sri P.M. Nawaz, appearing for the State as well as learned Amicus Curiae, Sri Sharanappa Mattur, appearing for the respondents.
3. Since the area of controversy is within a narrow compass with regard to the conviction of the accused for the offence under Section 324 of IPC instead of Section 326 of IPC, we deem it proper to discuss only this aspect of the matter since the respondents have been convicted by the trial court for the offence punishable under Section 324 of IPC. We also make a mention at this juncture that so far as respondent No. 3 is concerned, the trial court has acquitted the said accused since no independent witnesses has supported the prosecution case and even the presence of accused No. 3 is also not spoken by any of the witnesses and as such the focus will be only on the conviction of accused Nos. 1 and 2 by the trial court and their release under the P.O. Act.
4. It is submission of the learned State counsel that it has been established by the prosecution before the trial court that the complainant - PW.1 was assaulted with bamboo stick by accused No. 1 as well as by accused No. 2 and the complainant, as per the medical evidence, suffered 3 injuries, out of which, two injuries were simple and the second injury is contusion on left side of the chest and on being examined, the x-ray revealed that the first rib on left side was found fractured. Therefore, the doctor has opined that injury No. 2 is grievous injury. Relying on this medical evidence of PW.8 - R. Shankar, the learned Government Pleader submitted that the offence under Section 326 of IPC gets squarely attracted. Therefore, the trial court committed an error in convicting accused Nos. 1 and 2 for lesser offence under Section 324 of IPC and as such it ought to have convicted them for the offence under Section 326 of IPC and consequently application of provision of P.O. Act could not have been made use in the instant case on hand.
5. On the otherhand, the learned Amicus Curiae for the respondents submitted that the trial court has discussed this aspect of the matter in paras - 19 and 20 of the judgment and has rightly come to the conclusion that the accused could not have had either intention or the knowledge of committing grievous hurt to PW.1. Therefore, no interference is called for in this appeal against the finding of the trial court. It was further submitted that the stick used by accused Nos. 1 and 2 is stated to be a bamboo stick of 2 feet length and in the absence of evidence that it is a dangerous stick, it cannot be interfered that the weapon used by accused Nos. 1 and 2 comes within the category of dangerous weapon so as to attract Section 326 of IPC.
6. Having heard both sides and after careful examination of the entire material on record as well as the reasoning of trial court particularly paras -19 and 20 of the judgment, in our view, the trial court was in error in recording the finding that Section 324 of IPC gets attracted to the case on hand. It is also not in dispute that the medical evidence of doctor in unmistakable terms states that injury No. 2 suffered by PW.1 is a grievous injury and also mentions about the fracture of first rib of the chest of PW. 1. Therefore, the trial court was totally in error in treating the injury as one coining under the category of 'hurt'. But on the otherhand, the evidence on record does not lead to any other conclusion than one we have taken, that is, the hurt caused to PW. 1 is a 'grievous hurt'.
7. Now the question is with regard to the nature of weapon that was used by accused Nos. 1 and 2 to assault PW.1. It is not in dispute that both the accused had used the bamboo stick to assault PW.1. Since the spot mahazar - Ex.P2 indicates that the bamboo sticks are of just 2 feet in length and in the absence of any evidence that it is a dangerous stick used to assault PW.1, in our considered opinion, having regard to the nature of stick that was used and in the absence of any material being placed on record either with regard to size of the stick or its sharpness, it would be rather difficult to categorize the stick used as one coming under the category of 'dangerous weapon'.
8. In coming to this conclusion, we are fortified by the decision of the Hon'ble Supreme Court reported in 2005 SCC (Cri.) 695 in the case of Mathai -v.- State of Kerala. In the said decision, His Lordship Justice Arijit Pasayat has observed thus:
14. "Grievous hurt" has been defined in Section 320 IPC, which reads as follows: "320. Grievous hurt.- The following kinds of hurt only are designated as "grievous':
First. - Emasculation.
Secondly.-Permanent privation of the sight of either ye.
Thirds-Permanent privation of the hearing of either ear.
Fourthly. -Privation of any member of joint.
Fifthly. -Destruction or permanent impairing of the powers of any member of joint.
Sixthly. -Permanent disfiguration of the head or face.
Seventhly.-Fracture of dislocation of a bone or tooth.
Eighthly.-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.
15. 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.
16. The expression "any instrument which, used as a weapon of offence, is likely to cause death" has to be guaged taking note of the heading of the section. What would constitute a "dangerous weapon" would depend upon the fact of each case and no generalisation can be made.
17. The heading of the section provides some insight into the factors to be considered. The essential ingredients to attract Section 326 are (1) 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 U.P. v. Indrajeet 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 the 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 provision e.g. Section 324 and 326 the "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 sieze, 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.
9. Thus, in the above said case, the Apex Court while considering the size of the stone, which was used, came to the conclusion that the said stone cannot be said to be a dangerous weapon. Therefore, the conviction is altered to Section 325 of IPC. In the case before us also in the absence of various factors like size, thickness and sharpness of the bamboo sticks used, mere the evidence on record that the bamboo stick of 2 feet in length was used by the accused, cannot bring the said weapon under the category of 'dangerous weapon'. Hence, the question of Section 326 of IPC coming into play will not arise in the present case before us. However, we make it clear that whether a particular weapon comes under the category of dangerous weapon or not depends upon various factors and as such as has been observed by the Apex Court in the above said case, it is not possible to generalize as to which weapon would constitute the dangerous weapon and this would depend upon the facts of this case. Therefore, the facts of each case would decide as to whether the case is made out under Section 325 or Section 326 of IPC.
10. In the light of the foregoing reasons and the law bearing on the point referred above by us, we are of the view that the offence under Section 325 of IPC gets attracted as against the two accused and consequently, the finding of trial court as to the offence being committed, punishable under Section 324 of IPC will have to be altered into one under Section 325 of IPC.
11. Coming to the question of sentence, the trial court has released accused No. 1 and 2 by invoking the provisions of P.O. Act. In addition to the said provision of P.O. Act releasing the said accused on probation of good conduct, we are of the opinion that the said accused will have to be ordered to pay compensation to PW. 1 - complainant, who sustained the injuries on account of assault. Thus we propose to invoke Section 5 of P. O. Act. In our view, each of the accused Nos. 1 and 2 can be ordered to pay compensation of Rs. 10,000/- to PW. 1. This in our view would serve the cause of justice. Therefore, we reject the prayer of the learned Amicus Curiae for the respondents that accused Nos. 1 and 2 be directed to pay compensation of Rs. 2,500/-each.
In the result, we proceed to pass the following:
ORDER
i) The State appeal is allowed in part.
ii) The order of trial court convicting respondents No. 1 and 2 for an offence punishable under Section 324 of IPC is altered and the said accused are convicted for the offence punishable under Section 325 of IPC. Further, the respondents No. 1 and 2 are directed to pay compensation of Rs. 10,000/- each to the injured - complainant - PW. 1. If the compensation is not paid as directed, the same shall be recovered in accordance with Sections 421 and 422 of Cr.PC.
iii) The rest of the order of trial court releasing the said accused under the provision of P. O. Act, however, stands confirmed.
iv) The appeal stands disposed off accordingly.
We also place on record our appreciation for the service rendered by Sri Sharanappa Mathur, learned Amicus Curiae and we fix his fee at Rs. 5,000/-. The Registry is directed to arrange for payment of fee at the earliest.
A copy of this judgment shall be sent to the trial court forthwith.