( 1 ) THIS is an application making a grievance about the conviction and sentence for the offence punishable under sec. 333 of the Indian Penal Code. The facts of the case are that complainant Suraji Pragji was serving as a conductor in Gujarat State Road Transport Corporation on 25 in the bus going to Deesa. He took some passengers at the bus-stand named Kuda Vasan. Among them was present petitioner-accused Rabari Varva Jesang. He took the ticket from Kuda Vasan to Agathala. The bus fare was Re. 1/ -. The petitioner-accused gave a currency note of Rs. 10. 00. The Complainant deducted Re. 1/- and gave the remaining amount in the form of one currency note of Rs. 5. 00 and two currency notes of Rs. 2. 00 each. Among those currency notes of Rs. 2. 00 each one was spoiled and therefore the accused requested the complainant to change it. The complainant told the accused that he would give him at the time when he gets down at Agathala. When the bus came to Agathala Bus Stand there was hot exchange of words between the accused and the complainant and in that the accused brought out a shoe and attempted to give a blow with it to the complainant. The complainant raised his hand and therefore he was injured on his hand. Due to this there was a fracture of left 5th metacarpel bone. As there was fracture the learned Sessions Judge Banaskantha at Palanpur convicted the petitioner-accused for the of fence punishable under sec. 333 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for three months and to pay a fine of Rs. 200. 00 and in default of payment of fine to undergo one months further rigorous imprisonment.

( 2 ) IT is the contention that even if all the allegations made by the complainant are accepted the offence would not go beyond sec. 332 of the Indian Penal Code. It is not the case of the prosecution that a blow with a weapon which could cause fracture was aimed at a vulnerable part of the body. Due to some exchange of words and heat of passion the accused brought out his shoe and attempted to give a blow which the complainant took on his hand and therefore there was fracture of finger bone. Therefore this is not an intentional act. In order to support this argument my attention is drawn to the provisions of sec. 332 of the Indian Penal Code which refers to Voluntarily causing grievous hurt. It reads:"322 Whoever voluntarily causes hurt if the hurt which he intends to cause or knows himself to be likely to cause is grievous hurt and if the: hurt which he causes is grievous hurt is said voluntarily to cause grievous hurt". It is submitted that if a person voluntarily causes hurt and if the hurt which he intends to cause or knows himself to be likely to cause is grievous hurt and if the hurt which he causes is grievous hurt then it can be said that grievous hurt is caused voluntarily. Explanation to this sec. 322 of the Indian Penal Code is very material. In order to show that a person voluntarily caused grievous hurt. it must be proved not thai he caused grievous hurt but that he intended or knew himself that his act was likely to cause grievous hurt. It is therefore submitted that can it be said that a person while raising his shoe to give a blow intended or knew himself that his act was likely to cause grievous hurt? My attention is drawn to the panchnama which would show that the muddamal shoe was old and had no iron heel or spikes which would in the ordinary course of giving a blow cause a fracture. Therefore the nature of the article used was such that as a natural consequence grievous hurt would not be caused. It is therefore submitted that the accused can at the most be convicted for the offence under sec. 332 and not 333 of the Indian Penal Code.

( 3 ) IN JANI GULAB SHAIKH V. THE STATE OF MAHARASHTRA 1970 SUPREME COURT CASES (CR.) 532 the facts were that on being given a push a man fell down as a result of which his occipital bone was fractured. The High Court convicted the accus