The court clarified that the classification of a weapon as dangerous under Section 326 IPC depends on factual circumstances, leading to the acquittal of the accused for that charge.

JUDGMENT

In this appeal filed under Section 374 (2) Cr.P.C., the appellant who is the accused in SC.No.977 of 2009 on the file of the Court of Session, Thrissur, challenges the conviction entered and sentence passed against him for the offences punishable under Sections 323 , 324 and 326 read with Section 34 IPC .

2. As per the final report/charge sheet there were three accused persons involved in the crime. The case was taken on file as S.C.No.67 of 2006. The trial of the case started and when it reached the Section 313 Cr.P.C. stage, the accused herein, who was the third accused in the crime, absconded. Hence the case against the first and the second accused was proceeded with and they were found guilty of the offences punishable under Sections

323 and 324 read with Section 34 IPC and they were convicted and sentenced accordingly. The case against the third accused was split up and refiled as SC.No.977 of 2009. The third accused was arrested and produced before the trial court. Thereafter, the trial was completed and the impugned judgment passed. In this case, there is only one accused, that is, the third accused in the crime.

3. The prosecution case is that the accused herein (A3) along with the first and the second accused (A1 and A2) due to their enmity towards PW1 as he had preferred a complaint against them to the police, in furtherance of their common intention to voluntarily cause hurt to him, on 15/02/2005 at 09:45 p.m. attacked and caused injuries to PW1 and PW2. On the said day the first accused with MO.1 iron pipe hit PW1 on his head knowing that the said blow would cause his death. PW1 resisted the attack and hence received a blow on the backside of his head. The third accused with MO.3 stone hit PW1 on his face and lips causing a fracture on his jaw and loosening of his two teeth on the front row. The second accused with MO.3 stick beat PW1 on the lower part of his left knee causing an injury. Seeing PW1 being attacked, when PW2 intervened, the first accused with MO.1 iron pipe hit him on his left hand while the second accused hit him with MO.3 stick on his right shoulder and on right knee. When PW2 fell down, the third accused kicked him. Thus, accused persons 1 to 3 as per the final report were alleged to have committed the offences punishable under Sections 323 , 324, 326 and 308 read with Section 34 IPC .

4. On the basis of Ext.P1 FIS of PW1 recorded by PW12, Head Constable, Viyyur Police Station, Crime No.99/2005, Viyyur Police Station, that is, Ext.P1(a) FIR was registered by PW11, the then Sub Inspector of Police. PW11 after completing the investigation submitted the final report alleging the commission of offences punishable under the aforementioned Sections.

5. On appearance of all the three accused persons, the jurisdictional magistrate after complying with all the necessary formalities contemplated under Section 209 Cr.P.C., committed the case to the Court of Session, Thrissur. Thereafter the case was made over to the Additional Sessions Judge- IV, Thrissur for trial and disposal. The trial court on 16/01/2008 framed a charge for the offences punishable under Sections 323 , 324, 326 and 308 read with Section 34 IPC , which was read over and explained to the accused persons to which they pleaded not guilty.

6. On behalf of the prosecution, PWs.1 to 12 were examined and Exts.P1 to P10 and MO.1 to MO.3 were got marked in support of the case. At the time of Section 313 questioning, the third accused, that is, the accused herein absconded and hence the case against him was split up and refiled. As stated earlier, the first and the second accused were questioned under Section 313 Cr.P.C. and the trial against A1 and A2 was completed and they were found guilty of the offences punishable under Sections 323 and 324 read with Section 34 IPC and hence they were convicted and sentenced accordingly. They were not found guilty of the offences punishable under Sections 326 and 308 and hence they were acquitted unde