Conviction under Section 326 IPC modified to Section 325 IPC due to evidence insufficiency regarding weapon recovery, leading to reduced sentencing.

ORDER

The concurrent findings of the Judicial First Class Magistrate Court, Chavakkad, and the Additional Sessions Court, Fast Track No.II (Adhoc), Thrissur, convicting and sentencing the petitioners for the commission of the offence under Section 326 IPC , are under challenge in this revision.

2. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor representing the State of Kerala.

3. The prosecution case is that the petitioners, who were accused Nos.2 and 4 in Crime No.47 of 1999 of Guruvayoor Police Station, mounted physical assault upon PW1, along with two other accused, at about 4.00 pm on 02.02.1999 causing grievous hurt to the above witness. It is alleged that, while accused Nos.1 and 3 used a sword to inflict hack injuries upon PW1, the petitioners herein inflicted blows with an iron pipe upon the legs of PW1 causing fracture of bone. The reason for the assault is said to be the previous enmity with which the petitioners and the other accused nurtured with the defacto complainant. The Trial Court found the petitioners guilty of commission of the offences under Sections 324 and 326 IPC . They were sentenced to Rigorous Imprisonment for two years and fine Rs.5,000/- each for the commission of the offence under Section 326 read with Section 34 . A default clause of Simple Imprisonment for six months was also provided for non-payment of fine. However, no separate sentence was awarded for the offence under Section 324 . Though the aforesaid verdict of the Trial Court was challenged in appeal, the Appellate Court declined to interfere with the findings of the learned Magistrate, and dismissed the appeal confirming the conviction and sentence. Aggrieved by the above concurrent verdicts of the courts below, the petitioners are here with this revision.

4. Before the Trial Court, the prosecution examined eight witnesses as PWs 1 to 8, and brought on record four documents as Exts.P1 to P4. The petitioners did not opt to adduce any defence evidence. It is after analysing the aforesaid evidence that the Trial Court came to the conclusion that the petitioners committed the offences under Sections 324 and 326 IPC .

5. The Trial Court placed heavy reliance upon the evidence tendered by PWs 1 and 2 before coming to the conclusion that the petitioners herein inflicted blows upon PW1 with an iron pipe and caused fracture upon his lower limbs. However, the iron pipe used by the petitioners for inflicting grievous hurt upon PW1 were not recovered by the Investigating Agency. It is seen from the records that no plausible explanation had been offered by the Investigating Agency for the failure to recover the weapon of the offence. PWs 1 and 2 deposed before the Trial Court that the iron pipe used by the petitioners to inflict hurt upon PW1 was having the length of their arms. Apart from the above statement of those witnesses, there is nothing brought out from the prosecution records to show that a dangerous weapon, or an object, if used as a weapon of offence, is likely to cause death, was used by the petitioners to inflict grievous hurt upon PW1. It is true that the recovery of weapon of offence is not an inevitable requirement to find the guilt of the accused in connection with the commission of offence under Section 326 IPC . However, the Investigating Agency owes a responsibility to explain why it was not possible for them to recover the weapon of offence and bring it before the court. As far as the present case is concerned, it is seen that there is no convincing explanation on that aspect on the part of the Investigating Agency. Therefore, the conviction of the petitioners f