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IN THE HIGH COURT OF KARNATAKA AT BANGALORE (DIVISION BENCH)
CHIDANANDA ULLAL AND V. JAGANNATHAN, JJ.
STATE BY KAKATI POLICE STATION
v
PARASHRAM KALLAPPA GHEVADE AND OTHERS
Criminal Appeal No. 552 of 2000.
30th August, 2006
Case Referred: 2005 SCC (Cri.) 695.
Indian Penal Code, 1860 -Grievous hurt - Section 320 -Grievous hurt -What is. Settled principles: 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. 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 fact of each case and no generalisation can be made. 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 UP. 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 [2005 SCC (Cri) 695].
Case Referred: 2005 SCC (Cri.) 695.
Criminal Procedure Code, 1973 -Recovery of compensation -Sections 421 and 422 -Recovery of compensation -Accused s conviction altered from as under Section 324 to one under Section 325, IPC - Trial Court had released the accused on probation of food conduct - Hence, directed to pay compensation to the victim - Upon failure to pay, directed to be recovered as under.
Case Referred: 2005 SCC (Cri.) 695.
Trial Procedure -Dangerous weapon -Dangerous weapon -Depends on factors like size, sharpness etc - Accordingly the provisions would be attracted. [Chidananda Ullal and V. Jagannathan, JJ]: 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 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.
Case Referred: 2005 SCC (Cri.) 695. Settled principle: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 seize, 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 [2005 SCC (Cri) 695]. The State of Karnataka by Kakati Police Station Vs. Parashram Kallappa Ghevade and Others, 2006 (4) KLO 3257: ILR 2006 Kar 3514: 2006 (4) KCCR 2080: 2006 (5) Kar. L.J. 522 (DB); Crl. A. No. 552/2000; Decided on 30-8-2006. Case Referred: 2005 SCC (Cri.) 695.
Indian Penal Code, 1860 -Applicability -Section 325 and 326 -Applicability - Dangerous weapon - Depends on factors like size, sharpness etc - Accordingly the provisions would be attracted. [Chidananda Ullal and V. Jagannathan, JJ]: 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 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. Settled principle: 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 seize, 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 [2005 SCC (Cri) 695].
Case Referred: 2005 SCC (Cri.) 695.
The main grievance of the State, against the order of acquittal passed by the learned Judicial Magistrate First Class, Belgaum, is that the Trial Court while acquitting respondents 1 and 2, committed an error insofar as the offence is concerned and instead of convicting them for the offence under Section 326 of the lPC, the Trial Court had convicted them under Section 324 of the lPC and further releasing the two accused persons under the Probation of Offenders Act, 1958 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 Mathur, 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 the lPC instead of Section 326 of the lPC, 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 the lPC. We also make a mention at this juncture that so far as respondent 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 3 is also not spoken by any of the witnesses and as such the focus will be only on the conviction of accused 1 and 2 by the Trial Court and their release under the Probation of Offenders 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-P.W. 1 was assaulted with bamboo stick by accused 1 as well as by accused 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 2 is grievous injury. Relying on this medical evidence of P.W. 8-R. Shankar, the learned Government Pleader submitted that the offence under Section 326 of the lPC gets squarely attracted. Therefore, the Trial Court committed an error in convicting accused 1 and 2 for lesser offence under Section 324 of the lPC and as such it ought to have convicted them for the offence under Section 326 of the lPC and consequently application of provision of Probation of Offenders Act could not have been made use of in the instant case on hand.
5. On the other hand, 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 P.W. 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 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 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 the 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 2 suffered by P.W. 1 is a grievous injury and also mentions about the fracture of first rib of the chest of P.W. 1. Therefore, the Trial Court was totally in error in treating the injury as one coming under the category of 'hurt'. But on the other hand, the evidence on record does not lead to any other conclusion
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