Benny, S/O Joseph and Kuriyakose, S/O John v. The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** **THURSDAY, THE 29TH DAY OF NOVEMBER 2012/8TH AGRAHAYANA 1934** **Crl.Rev.Pet.No. 3210 of 2004 (A)** **-------------------------------CRA.149/2001 of ADDL. DISTRICT COURT (ADHOC), KALPETTA CC.340/1995 of J.M.F.C, MANANTHAVADY** ## **REVISION PETITIONER(S):** **-------------------------------** **1. BENNY, S/O.JOSEPH, KALLARAYIL VEEDU,** ## **KOOLIVAYAL, CHERUKATTOOR, MAYANAD.** **2. KURIAKOSE, S/O.JOHN, PALLATH HOUSE, CHERUKATTOOR P.O., MANANTHAVADY.** **BY ADV. SRI.KRISHNA PRASAD. S** ## **COMPLAINANT(S):** ## **---------------------** **THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM REPRESENTING THE S.I. OF POLICE VELLAMUNDA POLICE STATION (CRIME NO. 136/95).** ## **BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29-11-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **dlk** ## **S.SIRI JAGAN, J.** ## **-------------------Crl.R.P. No. 3210 of 2004** ## **----------------------------Dated this the 29[th] day of November, 2012** ## **ORDER** The petitioners are the accused in C.C.No.340 of 1995 before the Judicial First Class Magistrate-1, Mananthavady. They were prosecuted for offences punishable under Sections 323, 324 and 326 read with Section 34 of the Indian Penal Code. The prosecution case as discernible from paragraph 2 of the judgment of the Magistrate is as follows:- ”The prosecution case is that on 15.07.1995 at 9.p.m. night, when the accused persons were standing along with a woman in a rice mill owned by one Mathachan at Cherukattoor in Cherukattoor village, PW1 Sunny who came along with other witnesses through the road asked about their presence there and for that reason the first accused Benny hit PW1 with a stone on his head and face resulting in injuries and breaking of two teeth. There is also allegation that during the incident the second accused beat PW1 with his hand and caused simple hurt.” 2 The prosecution examined PWs 1 to 9 and marked Exts. P1 to P4 documents and MOs 1 and 2. The defence examined DW1. After considering the evidence, the Magistrate convicted the first accused to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,000/- for the offence punishable under Section 326 of the **Crl.R.P. No. 3210 of 2004** **2** Indian Penal Code and convicted the 2[nd] accused to undergo rigorous imprisonment for six months for the offence under Section 323 of the Indian Penal Code. The petitioners filed Criminal Appeal No. 149 of 2001 before the Additional Sessions Judge (ADHOC), Kalpetta, who dismissed the appeal confirming the conviction and sentence passed by the trial Court. The petitioners are challenging the judgments of the courts below. 3. The contention of the counsel for the petitioners is that the evidence available is not sufficient to convict the petitioners. According to him, apart from the interested testimony of PW1, there is no convincing evidence. He further contends that, in any event, there is no evidence regarding the use of any dangerous weapon so as to attract Section 326 of the Indian Penal Code. He points out that there is absolutely no discussion in the judgments of the courts below as to the size of the stone and the manner of use of the same, so as to hold that stone was used as a dangerous weapon. In this regard he relies on the decision of the Supreme Court in **Mathai v State of Kerala** (2005) 3 SCC 260 wherein the Supreme Court has, in the absence of any evidence regarding the size of the **3** ## **Crl.R.P. No. 3210 of 2004** stone used so as to constitute it as a dangerous weapon, converted the conviction under Section 326 into an offence u/s 325 of the Indian Penal Code. 4. The learned Public Prosecutor would support the judgments of the courts below. According to her, the evidence is convincing enough to convict the petitioners for the offences charged against them. It is pointed out that the stone has been recovered from the scene of occurrence and PW1 and PW2 had given convincing evidence regarding the incident which could not be shaken by the petitioners in cross examination. It is submitted that there is ample evidence to show that the stone was used as a dangerous weapon as a result of which he has caused hurt to PW1. Therefore, according to the learned Public Prosecutor, there is no ground to interfere with the judgments of the courts below. 5. I have considered the rival contentions in detail. On a reading of the oral evidence available, I am unable to countenance the contentions of the petitioners that no offence has been proved against the petitioners. The evidence of PWs 1 and 2 and the evidence of the doctor who treated PW1 **Crl.R.P. No. 3210 of 2004** **4** ## convincingly show that the petitioners have attacked PW1 and in that attack he suffered the following injuries:- - “1. Lacerated wound of 2x1 cm. on the scalp over the parietal region. 2. A small 1x1cm. lacerated wound on the chin near lower lip with contusion on the lower lip. 3. Lower part of upper 3 incisors, ,middle two and left lateral incisors-missing-fresh.” As such, I have no hesitation to hold that the petitioners had infact, caused bodily hurt to PW1. But at the same time, I am not quite satisfied that the stone used in this case, has been used as a dangerous weapon. Neither in the evidence nor in the judgments is there any discussion as to the size of the stone or the manner in which it was used as a dangerous weapon. In the judgment in **Mathai's** case (supra), the Supreme Court has held thus in paras 16 to18 . “16. The expression “any instrument which, used as a weapon of offence, is likely to cause death” has to be gauged taking note of the heading of the section. What would constitute a “dangerous weapon” would depend upon the facts of each case and no generalisation can be made. 17. The heading of the section provides some insight into the factors to be considered. The essential ingredients to attract Section 326 are:(1) voluntarily causing a hurt; hurt caused must be a grievous hurt; and **Crl.R.P. No. 3210 of 2004** **5** (3) the grievous hurt must have been caused by dangerous weapons or means. As was noted by this Court in State of U.P. v. Indrajeet[1 ] there is no such thing as a regular or earmarked weapon for committing murder or for that matter a hurt. Whether a particular article can per se cause any serious wound or grievous hurt or injury has to be determined factually. As noted above, the evidence of the doctor (PW5) clearly shows that the hurt or the injury that was caused was covered under the expression “grievous hurt” as defined under Section 320 IPC. The inevitable conclusion is that a grievous hurt was caused. It is not that in every case a stone would constitute a dangerous weapon It would depend upon the facts of the case. At this juncture, it would be relevant to note that in some provisions e.g.. Sections 324 and 326 the expression “dangerous weapon” is used. In some other more serious offences he expression used is “deadly weapon” (e.g. Section 397 and 398). The facts involved in a particular case, depending upon various factors like size, sharpness, would throw light on the question whether the weapon was a dangerous or deadly weapon or not. That would determine whether in the case Section 325 or Section 326 would be applicable. 18. In the instant case considering the size of the stone which was caused as revealed by material on record, it cannot be said that a dangerous weapon was used. Therefore, the conviction is altered to Section 325 IPC. No. hard-and-fast rule can be applied for assessing a proper sentence and a long passage of time cannot always be a determinative factor so far as sentence is concerned. It is not in dispute that a major portion of the sentence awarded has been suffered by the appellant. On the peculiar facts of the case we restrict it to the period already undergone”. 6. I am satisfied that the facts herein are similar to the facts and circumstances available in the said case. Therefore, applying the ratio of that decision in this case, I acquit the first accused of the offence punishable under Section 326 and convicted him for an offence under Secton 325 of the Indian **Crl.R.P. No. 3210 of 2004** **6** Penal Code. 8. Taking into account of the facts and circumstances of the case, I am inclined to interfere with the punishment as well. Accordingly, after setting aside the punishment imposed by the courts below, I convert the punishment into fine of Rs.25,000/each, out of which Rs.15,000/-(Rupees fifteen thousand Only) would be paid to PW1 as compensation. If the petitioners do not pay the fine they shall undergo simple imprisonment for one year. The amount already deposited shall be duly adjusted against the fine amount to be paid as directed above . The judgments of the courts below are modified as above. The Criminal Revision Petition is disposed of accordingly. Sd/- **S.SIRI JAGAN (JUDGE)** /TRUE COPY/ SKV P.A. TO JUDGE ## **Crl.R.P. No. 3210 of 2004** **7**