ANWARUL HAQversusTHE STATE OF UTTAR PRADESH

                         ANWARUL HAQ                                              A
                               v.
                  THE STATE OF UTTAR PRADESH

                            APRIL 26, 2005

             [ARIJIT PASAYAT AND S.H. KAPADIA, JJ.]                               B


       Penal Code, 1860-Section 324-Prosecutionfor causing grievous injury
-Non-recovery of weapon of offence-Medical opinion proving use of the
weapon-Account of eyewitnesses-Conviction by Courts below-On appeal, C
held: Jn view of evidence of eyewitnesses and medical opinion conviction
justified-Non-recovery of weapon cannot be a ground to discard evidence of
 eye-witnesses.

     Practice and Procedure :
                                                                              [)
     Plea raised for the first time before Supreme Court--He/d: Not
permissible.

      Words and Phrases :

      'Dangerous weapon '-Meaning of in the context of Section 324 /PC.       i   E
       Appellant-accused alongwith 3 other accused persons was tried
u/ss. 324 r/w 34, 504 and 506(2) IPC, for having inflicted blows by a knife
on PW-1 causing serious injuries to him. PW-2 was eyewitness to the
incident Trial Court acquitted the other 3 accused, while convicting the
appellant-accused. High Court, on revision, upheld his conviction.                F
                                                                              I




     In appeal to this Court, appellant contended that Section 324 IPC
was not applicable as it was not established that the weapon used was a
dangerous weapon and that the knife alleged to have been used was not
recovered.
                                                                                  G
     Dismissing the appeal, the Court

      HELD : 1. The trial court has analysed in great detail the evidence
of eye witnesses, including that of PW-I, the injured and therefore there
is no scope for interference. The plea that the weapon used was not a
                                    917                                           fl
    918                      SUPREME COURT REPORTS                    [2005) 3 S.C.R.

A dangerous weapon had never been urged before the trial court or the High
    Court. Whether the weapon is a dangerous weapon or not has to be gauzed
    only on the factual basis. As there was no challenge on this aspect by the
    accused before the cour-ts below, that plea for the first time cannot be
    permitted to be raised in this Court. [920-G-H; 921-AJ

B         2. Eye-witnesses in th~ present case have·described the knife, and
    merely because the knife has not been recovered during investigation same
    cannot be a factor to discard the evidence of PWs. 1 and 2. Wounds noticed
    by the Doctor (PW-3) also throw considerable light' in 'fhis aspect. Doctor's
    opinion about the weapon, though theoretical, cannot be totally wiped out.
C   In that view ofthe matter the appellant has been rightly convicted under
    Section 324 IPC. (921-H; 922-A)

          3. The expression "an instrument, which used as a weapon of offence,
    is likely to cause death" as occurring in Section 324 IPC should be
    construed with reference to the nature of the· instrument and not the
D   manner of its use. What has to be established by the prosecution is that
    the accused voluntarily caused hurt and that such hurt was caused by
    means of an instrument referred to in this Section. The Section prescribes
    a severer punishment where an offender voluntarily causes hurt by
    dangerous weapon or other means stated in the Section. The expression
    when read in the light of marginal note to Section 324 means dangerous
E   weapon which if used by the offender is likely to cause death. [921-B-D)

         CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 625-
    626 of 2005.

         From the Judgment and Order dated 16.5.2003 and 24.2.2004 of the
F   Allahabad High Court in Crl.R. No. 44/2000 and Crl.M.Application No. 1482/
    2004 in Crl.R. No. 44 of 2000.

          Atul Kr. Sinha and Devendra Singh for the Appellant.

          Ravi Prakash Mehrotra, Mrs. Alka Agarwal and Garvesh Kabra for the
G Respondent.
          The Judgment of the Court was delivered by

          ARIJIT PASAYAT, J. Leave granted.

H         Appellant calls in question legality of the judgment rendered by a learned
      ANWARUL HAQv. STATE OF UTT AR PRADESH [PASAYAT,J.]                919

Single Judge of the Allahabad High Court, Lucknow Bench affinning his A
conviction for offence punishable under Section 324 of the Indian Penal
Code, 1860 (in short the 'IPC') and sentence of one year rigorous imprisonment
as imposed by the trial court. The revision application filed under Section
397 read with Section 40 I of the Code of Criminal Procedure, 1973 (in short
the 'Code') was dismissed. Initially four persons had faced trial. Three of B
them were acquitted.

     The prosecution version in a nutshell is as follows :-

       On 8th of July, 1990, in the evening Naseeb Alam (PW-I) was going
to his house from Sadullanagar market. At about 4.30 P.M. in front of Village C
Parsarampur on the road, four accused persons, who were co-villagers met
him. Due to old animosity, they began to utter vulgar abuses. Upon objection,
accused-appellant Anwarul Haq inflicted blows by the knife carried in his
hand, because of which serious injuries were caused in the right hand of PW-
1. Jesulla and Idrish (PW-2) coming towards the yillage from Sadullanagar
reached there upon hearing his cries, rescued him. They had seen the incident. D
The accused persons fled away from the spot of the incident while threatening
to kill. The accused Anwarulhaq fled away while leaving behind his bicycle
at the spot. First information report was written by Rajkumar Srivastava, it
was lodged at the police station on the basis of which the first information
report was registered on the same day at 17 .20 hours vide no. Ex.P/4. The E
memo for the bicycle was drawn vide Ex.P/2. The wounded informant was
sent to the Primary Health Centre, Sadullanagar along with a written letter
through the constable Chandraz Bhushan Pathak and his medical examination
was done which is Ex.P/3. After the investigations, charge-sheet was filed for
alleged commission of offences punishable under Sections 324, 504 and 506
IPC, on the basis of which cognizance was taken.                               F
      The four accused persons faced trial for alleged commission of offences
punishable under Sections 324 read with 34, 504, 506(2) IPC. Accused persons
pleaded innocence and faced trial. The accused persons took the plea that
they were falsely implicated because of animosity.
                                                                                G
     On behalf of the prosecution side, the witnesses of the facts viz., PW-
1 - Naseebalam; PW-2 - Mohd. Idrish, and formal witness PW-3 - Dr. S.N.
Pandey, PW-4 - Chandrabhan Yadav were examined.

      Out of the four persons who were tried, three were acquitted and only
the appellant was convicted. The three persons were acquitted on the ground H
    920                     SUPREME COURT REPORTS                   [2005) 3 S.C.R.

A that the evidence was not sufficient so far as they are concerned. Doctor
    (PW-3) who had examined the injured found the following injuries :-

          1\. I~ wound of6 Cm. x 1.5 Cm. x l Cm. at the wrist of right hand
    in frontal :'.f'or'tfon.

B         2. Complaint at the back of the chest.

          Placing reliance on·the evidence of the injured, the accused was found
    guilty and convicted. Trial court found that the first information report was
    lodged immediately after the occurrence and there is nothing infirm fo discard
    the testimony of the injured witness. Accordingly the conviction was made
C   and sentence was awarded as aforesaid. The revision before the High Court
    was dismissed. An application for review was also dismissed. Both the orders
    are under challenge in these appeals.

          The High Court found that the plea regarding unreliability of the
    evidence of eye witnesses was clearly without substance and there is no
D   infirmity in the order of the trial court. Accordingly the Revision Application
    was dismissed.

           In support of the appeal, learned counsel for the appellant submitted
    that the courts below did not take note of the fact that there was animosity
E   between the parties and therefore the evidence of the so called eye witnesses
    was tainted. Additionally the knife supposed to have been used was not
    recovered. In any event it was not established that the weapon that was used
    was a dangerous weapon and, therefore, Section 324 IPC has no application.
    Residua'lly it was submitted that the accused is in custody for· nearly ten
    months and the sentence should be reduced.
F
          Learned counsel for the respondent-State on the other hand supported
    the judgment and stated that the findings of fact recorded by the trial court
    was affirmed by the High Court in revision and no interference is called for.

          We find that the trial court has analysed in great detail the evidence of
G   eye witnesses, including that of PW-1, the injured and therefore there is no
    scope for interference. The plea that the weapon used was not a dangerous
    weapon had never been urged before the trial court or the High Court. Whether
    weapon is a dangerous weapon or not has to be gauzed only on the factual
    basis. As there was no challenge on this aspect by the accused before the
H   courts below, that plea for the first time cannot be permitted to be raised in
       ANWARUL HAQv. STATE OF UTT AR PRADESH [PASAYAT, J.)                92 l

this Court.                                                                       A
      Section 324 provides that "Whoever except in the case provided for by
Section 334, voluntarily causes hurt by means of any instrument for shooting,
stabbing or cutting, or any instrument which, used as weapon of offence, is
likely to cause death, or by means of fire or any heated substance, or by
means of any poison or any corrosive substance, or by means of any explosive      B
substance, or by means of any substance which is deleterious to the human
body to inhale, to swallow or to receive into the blood, or by means of any
animal" can be convicted in terms of Section 324. The expression "an
instrument, which used as a weapon of offence, is likely to cause death"
should be construed with reference to the nature of the instrument and not the    C
manner of its use. What has to be established by the prosecution is that the
accused voluntarily caused hurt and that such hurt was caused by meal)s of
an instrument referred to in this Section.

       The Section prescribes a severer punishment where an offender
voluntarily causes hurt by dangerous weapon or other means stated in the          D
Section. The expression "any instrument which used as a weapon of offence
is likely to cause deat!l" when read in the light of marginal note to Section
324 means dangerous weapon which if used by the offender is likely to cause
death.

     Authors of IPC observed, as noted below, the desirability for such           E
severer punishment for the following reasons :

            " ... Bodily h11rt may be inflicted by means the use of which
        generally indicates great malignity. A blow with the fist may cause
        as much pain, and produce as lasting an injury, as laceration with a
        knife, or branding with a hot iron. But it will scarcely be disputed      F
        that, in the vast majority of cases, the offender who has used a knife
        or a hot iron for the purpose of wreaking his hatred is a for worse and
        more dangerous member of a society than he has only used his fist.
        It appears to us that many hurts which would not, according to our
        classification, be designated as grievous ought yet, on account of the    G
        mode in which are inflicted, to be punished more severely than many
        grievous hurts."

     Eye witnesses in the present case have described the knife, and merely
because the knife has not been recovered during investigation same cannot
be a factor to discard the evidence of PWs. 1 & 2. Wounds noticed by the          H
    922                     SUPREME COURT REPORTS                  (2005] 3 S.C.R.

A Doctor (PW-3) also throw considerable light in this aspect. Doctor's opinion
    about the weapon, though theoretical, cannot be totally wiped out. In that
    view of the matter the appellant has been rightly convicted under Section 324
    IPC.

          Learned counsel for the appellant submitted that the appellant is in
B   custody since 27.6.2004 and has served major part of the sentence imposed.
    Prayer was made, as noted above, to restrict to the period already undergone.    --.:.'

    We find no substance in this appeal. Considering the background facts as
    highlighted above, it would not be proper to show any leniency so far as the
    sentence is concerned.
c         The appeals fail and are dismissed.

    K.K.T.                                                   Appeals dismissed.