Important pointA stone used as weapon of offence could not be described to be a dangerous weapon in every case.

Headnote:Indian Penal Code, 1860—Section 326—Appellant was convicted under by trial Court, conviction upheld in appeal and revision—Appellant had assaulted victim PW1 on his head and face with a stone—Evidence of victim was clear and cogent and in absence of any material as to why he would falsely implicate accused, no reason to not to believe him—Question whether injury suffered was grievous and weapon used was a dangerous weapon—One of injuries noted by doctor was fracture of left upper second incisor tooth—Stone used as weapon would not constitute a dangerous weapon in every case—Considering the size of stone which was used, it could not be said that dangerous weapon was used—Offence against appellant would fall u/s 325 IPC—Major portion of sentence of two years awarded by Courts below had been suffered by appellant—In the peculiar facts, sentence reduced to period undergone. (Para 15 to 18)

Judgement Key Points

Key Points: - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!)

What is the legality of convicting under Section 326 IPC when the weapon used is a stone of such size that it may not be considered a dangerous weapon?

What is the appropriate section and sentence adjustment when the weapon used is not established as dangerous and the injury is grievous but not by a dangerous weapon?

What is the Court’s ruling on whether a major portion of the sentence already served should be considered in reducing the sentence?

Judgment

Arijit Pasayat, J.—Leave granted.

2. Appellant 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.

3. The 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.

4. The 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. Ext. P3 is the Discharge Certificate issued by Dr. R.V. Devdas (PW-5). Thus, the medical evidence in the case shows that PW-1 had sustained the injuries as stated by him.

5. The 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. Accordingly, conviction was made and sentence imposed which has been upheld by the High Court.

6. In 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. In any 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.

7. In 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.

8. We 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 evidence.

9. The 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.

1. Lacerated wound over the left poste

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2005 Supreme(SC) 67

Important pointA stone used as weapon of offence could not be described to be a dangerous weapon in every case.

What is the legality of convicting under Section 326 IPC when the weapon used is a stone of such size that it may not be considered a dangerous weapon?

What is the appropriate section and sentence adjustment when the weapon used is not established as dangerous and the injury is grievous but not by a dangerous weapon?

What is the Court’s ruling on whether a major portion of the sentence already served should be considered in reducing the sentence?

Cases Referred (1)