A conviction under Section 324 IPC requires proof of use of a dangerous weapon, which was not satisfactorily established, thus warranting a conviction under Section 323 IPC instead.

ORDER

The petitioner suffered the concurrent conviction for the commission of the offence under Section 324 IPC from the Trial Court and the Appellate Court. The allegation against him in C.C.No.703 of 2003 on the files of the Judicial First Class Magistrate Court, Kasaragod, was that he committed the offence under by hitting PW1 with an iron rod at about 9.15 am on 17.01.2003. As a result of the aforesaid assault, PW1 is said to have sustained injuries upon his forearm and scalp. The learned Magistrate by the judgment rendered on 25.10.2005, convicted the petitioner for the offence under and sentenced him to undergo Simple Imprisonment for one year and to pay fine Rs.1,000/-. The Sessions Court, Kasaragod, in Crl.A.No.315 of 2005, confirmed the above conviction, but reduced the sentence to Simple Imprisonment for three months and fine Rs.2,000/-. It is aggrieved by the above verdict of the courts below that the petitioner is here before this Court with this revision.

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

3. Among the eight witnesses examined by the prosecution before the Trial Court, the learned Magistrate relied on the testimonies of PWs 1 and 2 towards arriving at the finding that the prosecution successfully established the occurrence of the offence alleged in this case. The Appellate Court also made a re-evaluation of the above evidence and found that the prosecution was successful in establishing the commission of the offence under Section 324 IPC . As rightly observed by the courts below, the evidence on record clearly points to the physical assault mounted upon PW1 by the accused, leading to injuries upon his body. However, there is no explanation offered by the Investigating Agency why the weapon of offence could not be recovered. It is true that the recovery of the weapon of offence is not an inevitable requirement in every case where the offender is prosecuted for inflicting hurt upon the victim.

But the prosecution owes a responsibility to explain the reasons which prevented the Investigating Agency from recovering the above weapon and to produce it before the court. As far as the present case is concerned, it appears that there is no plausible explanation offered by the Investigating Agency for its failure to recover the iron rod said to have been used by the accused to inflict injuries upon the body of PW1. For the offence under Section 324 IPC to be attracted, it has to be shown that the offender has used a dangerous weapon, or an object, if used as a weapon of offence, is likely to cause death. Unless the prosecution is able to show that the iron rod alleged to have been used by the petitioner was either a dangerous weapon, or an object, if used as a weapon of offence, is likely to cause death, it cannot be said that the offence under is brought out. However, the evidence on record clearly points to the fact that the petitioner has inflicted voluntary hurt upon PW1, and hence the offence under Section 323 is clearly established from the evidence on record. Therefore, the conviction awarded by the courts below is liable to be altered as one under and the sentence to be reduced accordingly. Having regard to the nature of the offence involved in this case as well as the elapse of more than two decades from the date of commission of the crime, I am of the view that the prison term of sentence has to be excluded, if the petitioner is ready to pay a modest amount as compensation to the injured / defacto complainant / PW1. Subject to the above modification, the revision petition is disposed of as follows :-

(i) The conviction of the petitioner for the commission of the offence under Section 324 IPC , is hereby set aside.

(ii) The petitioner / accused is convicted