Conviction for assault modified from Section 324 IPC to Section 323 IPC due to insufficient evidence categorizing the weapon as dangerous.

ORDER

The concurrent verdicts of conviction and sentence of the petitioners for the commission of offences under Sections 323 and 324 IPC by the Judicial First Class Magistrate Court - V, Kozhikode, and the Additional Sessions Court - II, Kozhikode, are under challenge in this revision.

2. The prosecution case is that on 01.03.1998, at about 10.00 pm, the petitioners inflicted voluntary hurt upon PW1 by beating with a reaper, and also by beating and kicking him inside a temporary tea shop erected in connection with the festival of a temple, in which PW1 was officiating as the office bearer of the committee. The learned Magistrate had initiated the proceedings against the petitioners upon a private complaint filed by the defacto complainant / PW1.

3. After an evaluation of the evidence adduced by the complainant through the examination of PWs 1 to 4, and the documents marked as Ext.P1, and also after considering the defence evidence adduced through the oral testimony of DW1, the learned Magistrate found the petitioners guilty of the commission of the offences under Sections 323 and 324 IPC and convicted them thereunder. The 1^st petitioner was sentenced to undergo Simple Imprisonment for a period of one year under Section 324 and the 2^nd petitioner was sentenced to undergo Simple Imprisonment for six months under Section 323 . Though the petitioners challenged the aforesaid verdict in appeal, the learned Additional Sessions Judge, who considered the appeal, declined to interfere with the findings of the learned Magistrate. Accordingly, the appeal was dismissed, confirming the conviction and sentence awarded by the Trial Court. Aggrieved by the above concurrent verdicts of the courts below, the petitioner is here before this Court with this revision.

4. Heard the learned counsel for the petitioners and the learned Public Prosecutor representing the 2^nd respondent. The 1^st respondent, though engaged a counsel to appear for him, did not choose to advance any arguments.

5. The Trial Court has relied on the evidence of PWs 1 to 3 to arrive at the finding that the petitioners mounted physical assault upon PW1 at about 10.00 pm on 01.03.1998 inside a temporary tea shop while the festival was going on at Karumakan Temple. The 1^st accused is alleged to have caught hold of PW1 from behind and inflicted blows upon him with a reaper. The 2^nd accused, along with the 1^st accused, is alleged to have further physically assaulted the defacto complainant with hands and hitting him. PW4, the Doctor who treated PW1 on 02.03.1998, testified before the Trial Court about the injuries suffered by PW1 and the treatment administered to him. There is absolutely no reason to interfere with the findings of the courts below, about the act of the petitioners inflicting voluntary hurt upon PW1 on the night of 01.03.1998. However, it is to be noted that there is paucity of evidence as to whether the reaper allegedly used by the 1^st petitioner to hit PW1 could be termed as a dangerous weapon, or an object which, if used as a weapon of offence, is likely to cause death. It is pertinent to note that since the case has been instituted on a complaint, there was no occasion for the recovery of the weapon of offence. Even in the absence of any evidence as to the nature of the weapon used by the petitioners to physically assault PW1, the courts below came to the erroneous finding that the 1^st petitioner committed the offence under Section 324 IPC . Since the findings in the above regard is patently illegal and irregular, the conviction awarded by the courts below for the commission of the offence under , is liable to be interfered with in this revision. As the evidence on record clearly brought out the act of the petitioners inflicting voluntary hurt upon PW1, bot