ORAL ORDER

This revision assails the judgment and order rendered Criminal Case No. 227 of 2016 by the learned Additional Chief Judicial Magistrate, Keshod dated 11/03/2022 confirmed by the learned Additional . Sessions Judge, Keshod by judgement and order dated 12-10-2023 in Criminal Appeal No.7 of 2022 convicting the petitioner for the offence punishable under Section 326 of the IPC and under Section 135 of the GP Act sentencing him to undergo four years SI with fine of Rs.5,000/-

in default to undergo 30 days SI.

2. The facts of the case in nutshell are that in relation to some previous dispute regarding money transaction cross complaints were filed and case was filed in the court and by keeping grudge over the said dispute on 24/02/2016 at about 15:30 hours with the handle of spade the accused caused injury on the left side of the eye and thereby caused permanent disability of vision to the complainant.

3. The case was tried, evidence was adduced and at the end of the trial, the learned trial Court convicted and sentenced the petitioner as stated in paragraph 1 which has been confirmed by the first appellate Court against which the revision application is filed wherein while admitting the petitioner is released on bail.

4. Heard learned advocate for the respective parties.

5. Learned Advocate for both the sides jointly submitted that since the parties are neighbour have amicably settled the dispute and pursuant to which respondent no.2 herein has filed the affidavit. Upon such submissions, it is jointly submitted to pass necessary order in the facts and circumstances of the case.

6. Learned APP would submit that this is an offence against the society and therefore even if the matter is compounded by the first informant who is the victim of the offence, the accused may not be relieved from the obligation to undergo the sentence imposed and confirmed by the first appellate Court.

7. Having heard the learned advocates for the parties, it reveals that parties are neighbour to each other and have compounded the offence against each other which arise from one and the same incident. In the cross complaint registered under Section 323 of the IPC where the accused is convicted for the offence punishable under Section 323 of the IPC has been compounded. It is true that in the present case, the learned trial Court has believed that by the handle of the spade the injury was caused on the head of the victim and as such the accused committed the offence under Section 326 of the IPC. The finding given by the learned trial Court has been affirmed by the first appellate Court.

8. Section 326 of the IPC can be applied in a case where grievous hurt has been voluntary caused by dangerous weapon or means. If anyone caused grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence which is likely to cause death, then it cannot be said that accused has committed offence under Section 326 of the IPC. There is a thin line between Section 323 and 325 of the IPC. Section 325 of the IPC provides the punishment for the voluntarily causing hurt but Section 326 of the IPC add that the voluntarily causing hurt must be by dangerous weapons or means.

9. Now, in background of above aspect, if we examined the evidence on record and finding arrived at by the learned Courts below, the backside of the spade has been considered as a dangerous weapon by the trial Court; but none of the courts below have assigned the reasons to consider the back side of the spade as a dangerous weapon. This is a serious flaw in the impugned judgment. Both the Courts below have failed to notice that necessary ingredients of Section 326 of the IPC are not satisfied. The spade in the given facts and circumstances of the case could not be considered as dangerous weapon. So, at the most, it should be believed that there is voluntarily causing to grievous hurt which falls within the four corners of Section 325 of the IPC and to