Safiya Malik

The High Court of Kerala Single Bench of Justice Dr. Kauser Edappagath modified a conviction under Section 326 of the Indian Penal Code to Section 323 IPC. The Court held that the prosecution had failed to establish that the weapon used was dangerous or that the injuries sustained were grievous in nature under Section 320 IPC. The Court sentenced the accused to three days of simple imprisonment, already undergone, and directed him to pay a fine of Rs. 2,000/- within one month.

The Court examined whether the stone used in the incident could be classified as a dangerous weapon and whether the injuries satisfied the threshold of grievous hurt. On finding deficiencies in the prosecution's evidence, including the absence of proof regarding the stone's nature and the medical classification of injuries, the High Court concluded that a conviction under Section 326 IPC was unsustainable. Consequently, the Court altered the conviction to Section 323 IPC, applying Section 222(2) CrPC to convict for a minor offence supported by evidence.

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The case arose out of an incident that occurred on 1st July 1999 around 3:00 p.m. in Edakkara Amsom, Thalakulathur Panchayat, Ward No.8. The accused, Kumaran, was alleged to have pushed the complainant down, grabbed his neck, and hit his face with a stone. The complainant allegedly suffered a facial fracture as a result of the assault.

The Judicial First-Class Magistrate Court, Koyilandy, tried the accused under Section 326 IPC. The prosecution examined PWs 1 to 10 and marked Exts. P1 to P5 and MOI and MOII. No defence evidence was adduced. The trial court convicted the accused, sentencing him to one-year simple imprisonment and a fine of Rs. 2,000/-, with Rs. 1,000/- to be paid as compensation to the complainant. On appeal, the Additional Sessions Court-III, Kozhikode, upheld the conviction and sentence.

The accused filed a Criminal Revision Petition before the High Court of Kerala challenging both lower court judgments. When the matter came up for hearing, initially there was no representation from the petitioner, prompting the Court to appoint Smt. Thushara K. as Amicus Curiae. However, during the hearing, the petitioner was represented by Sri. P.V. Anoop.

During arguments, the petitioner's counsel contended that there was no evidence about the size or nature of the stone (MO1), and that the medical records did not establish any injury falling within the definition of "grievous hurt" under Section 320 IPC. They argued that at most, the offence under Section 323 IPC would be attracted. Reliance was placed on the precedent in Joy v. State of Kerala (2014 (1) KLT 588).

The prosecution relied on the testimony of PWs 1 to 4 and PW6. PW1 was the injured complainant. PWs 2 to 4 were eyewitnesses, and PW6 was the doctor who issued the wound certificate (Ext. P4). PW1 deposed that the accused assaulted him with a stone at his premises after pushing him down. PWs 3 and 4 corroborated this account. Though cross-examined, their core statements remained intact. PW2 turned hostile but admitted he saw the complainant bleeding after the incident and assisted in taking him to the hospital.

The doctor (PW6) confirmed the following injuries on PW1: (i) a 4 cm circular contusion on the left cheek, (ii) bleeding and swelling on the right cheek, and (iii) bleeding from the mouth. However, there was no substantiation of a facial bone fracture as initially alleged.

The Court recorded: "It is settled that the jurisdiction of the High Court in revision is severely restricted, and it cannot embark upon reappreciation of evidence." However, it found that both lower courts failed to scrutinize whether the offence under Section 326 IPC was substantiated.

Addressing the definition of dangerous weapon, the Court noted: "Though Section 326 of IPC addresses the offence of voluntarily causing hurt by dangerous weapons or means, the term ‘dangerous weapon’ is not expressly defined in IPC." It explained that a stone may fall within Section 326 IPC only under two conditions—if it qualifies as an instrument for cutting, or if it is likely to cause death when used as a weapon of offence.

The judgment recorded: "There is no evidence to prove the nature, size and sharpness of the MO1 stone. There is also no evidence to show that MO1 stone has the potential to cause the death of a person." Accordingly, the Court held that MO1 did not fall under either clause required by Section 326 IPC.

On the nature of the injury, the Court analysed Section 320 IPC and noted: "None of these injuries fall under the categories of grievous hurt as described under Section 320 of IPC. Even though the prosecution claimed that PW1 sustained a fracture on his face, it has not been established in evidence."

The judgment quoted precedent: "Before a conviction under Section 326 of IPC can be passed, one of the injuries in Section 320 of IPC must be strictly proved. The eighth clause is no exception to the general rule that a penal statute must be construed strictly" (Mathai v. State of Kerala, (2005) 3 SCC 260).

The Court ultimately stated: "The hurt inflicted by the revision petitioner on PW1 using the MOI weapon falls under Section 319 of the IPC. Therefore, the conviction under Section 326 of IPC cannot be sustained."

The High Court, therefore, ordered: "The conviction of the revision petitioner under Section 326 of the IPC by the trial court as well as the appellate court is hereby set aside."

It further directed: "The revision petitioner is convicted for the offence under Section 323 of IPC. He is sentenced to undergo simple imprisonment for three days and to pay a fine of Rs.2,000/-, in default, to suffer simple imprisonment for one month for the offence under Section 323 of IPC."

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Acknowledging the time elapsed and the petitioner's health, the Court recorded: "Considering the age and illness of the revision petitioner and also the fact that the injuries sustained by PW1 are not serious, I am of the view that the substantive sentence can be confined to three days' imprisonment he had already undergone."

It concluded the directives by stating: " As the revision petitioner had already undergone the substantive sentence of three days, he is directed to deposit the fine amount of Rs.2,000/- (Rupees Two thousand only) before the trial court within a period of one month from today."

Advocates Representing the Parties:

For the Petitioner: Shri. P.V. Anoop, Sri. Phijo Pradeesh Philip, Smt. Thushara K. (Amicus Curiae)

For the Respondents: Smt. Sangeetha Raj N.R., Public Prosecutor

Case Title: Kumaran v. State of Kerala

Neutral Citation: 2025: KER:46791

Case Number: Crl.Rev.Pet.No. 1520 of 2006

Bench: Justice Dr. Kauser Edappagath