IMPORTANT POINTS
The accused had beaten on the left hand of the lady victim using a firewood piece - Only for the limited purpose of consideration of anticipatory bail plea, this Court is inclined to take the view that going by the dictum laid down by the Division Bench of the Karnataka High Court in State of Karnataka Vs. Parashuram Kallappa Ghevade case (supra) 2007 Crl. Law Journal 479, that in the absence of various factors like size, thickness and sharpness of the weapon allegedly used in the assault, a firewood piece (xxx) cannot be treated as a dangerous weapon which is likely to cause death as envisaged in section 326 of the IPC. Section 326 of the IPC is a species of a larger genus of the offence contemplated in section 325 of the IPC which is dealing with punishment for grievous hurt. If the assault made by the accused on the victim results in fracture, then definitely it would come within the ambit of grievous hurt as per section 320 of the IPC which is punishable as per section 325 thereof. But to come within the ambit of section 326 of the IPC, it should satisfy the other ingredients in section 326 and more particularly in the context of facts of this case, the prosecution should have a definite case that the alleged weapon used for the assault by the accused is a dangerous weapon which is likely to cause death as envisaged in section 326 of the IPC-Only offence as per section 325 of the IPC may be made out in this case and not the serious non-bailable offence as per section 326 of the IPC. The offence as per section 325 of the IPC is a bailable offence.

JUDGMENT :

The petitioner herein has been arrayed as the sole accused in the instant crime No.1788/2019 of Kadakkal Police Station which has been registered for offences punishable under sections 498A and 326 of the IPC. The above said crime has been registered on the basis of FIS given by the lady defacto complainant on 09/10/2019, at about 1.15 pm in respect of the alleged incidents which happened on 06/10/2019 at about 12.30 pm in the afternoon. The lady defacto complainant in this case is the wife of the 1st petitioner herein. The short of the prosecution case is that the marriage of the petitioner accused now aged 40 years and the lady defacto complainant, now aged 32 years was solemnized about 13 years back and the marriage was a culmination of an intense love affair between them and that the petitioner belongs to a backward class and that the lady belongs to a forward community and that petitioner used to frequently treat her with cruelty and harassment and that on 06/10/2019, at about 12.30 pm, the petitioner had quarreled with her and had beaten her on her left hand using a firewood piece (xxx) and that she was immediately hospitalized on the same day and x-ray revealed that she has suffered fracture on account of the said beating received by her. Hence it is alleged by the prosecution that petitioner has thereby committed the above said offences.

2. R. Pushpangathan Pillai, learned advocate appearing for the lady defacto complainant had opposed the plea for anticipatory bail. This Court has directed the petitioner to implead the lady defacto complainant as an additional party in order to ascertain whether any mediatory efforts would be feasible. Sri. Pushpangathan Pillai, learned counsel appearing for the lady defacto complainant would submit on the basis of instructions from the party that the lady has suffered much and she is not interested for any mediation process.

3. Learned prosecutor would point out that immediately after the incident on 06/10/2019, at about 12.30 in the afternoon, the lady was admitted to the nearby hospital on the same day at about 2.10 pm and the medical records would disclose that she has suffered fracture on her left hand on account of the above said beating received by her. Learned prosecutor would point out that as the offence alleged in this case also involves a serious non-bailable offence as per section 326 of the IPC, this Court may not grant anticipatory bail to the petitioner.

4. The counsel for the petitioner would point out that the above said allegations are false and baseless and further that the petitioner is seriously interested in reconciliation, and the marital discord is on account of faults on either sides and petitioner is willing to rectify his mistakes and further that, even going by the admitted allegations of prosecution case, an offence as per section 326 of the IPC is not made out and at best, only an offence as per section 325 is made out. Section 320 of the IPC deals with grievous hurt and clause 7(3) stipulates that, where a fracture is suffered by the victim, then it would come within the ambit of grievous hurt.

4. Section 325 of the IPC deals with punishment for voluntarily causing grievous hurt and the same reads as follows:

“325. Punishment for Voluntarily causing grievous hurt-Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”

5. Section 326 of the IPC deals with voluntarily causing grievous hurt by dangerous weapons or means and that the same reads as follows:

“326. Voluntarily causing grievous hurt by dangerous weapons or means-Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated