Holding

The conviction was altered to Section 325 IPC because the stone was not a dangerous weapon, and the sentence was limited to the period already served.

Summary

The appellant Mathai was convicted by the trial court and the Kerala High Court for voluntarily causing grievous hurt by using a stone, under Section 326 of the Indian Penal Code (IPC). He appealed to the Supreme Court, contending that the injury did not amount to "grievous hurt" and that the stone could not be classified as a "dangerous weapon" within the meaning of Section 326, and also sought modification of his sentence after serving a major portion. The Court examined the medical evidence, which established that the victim suffered a lacerated wound and a fractured tooth, satisfying the definition of grievous hurt under Section 320 IPC. It held that whether a stone constitutes a dangerous weapon depends on factual factors such as size and sharpness, and in this case the stone was not a dangerous weapon. Consequently, the conviction was altered to Section 325 IPC (voluntarily causing grievous hurt) and the sentence was limited to the period already served. The appellant was ordered to be released, and the appeal was disposed of.

Issues considered

Whether the injury inflicted qualifies as "grievous hurt" under Section 320 IPC.
Whether a stone used in the assault constitutes a "dangerous weapon" for the purposes of Section 326 IPC.
Whether the conviction should be under Section 326 or Section 325 IPC.
Whether the sentence should be modified in view of the time already served.

Legislation cited

Code of Criminal Procedure, 1973s. 397, s. 401
Indian Penal Code, 1860s. 320, s. 325, s. 326

Subjects

grievous hurtdangerous weaponSection 326 IPCSection 325 IPCcriminal appealsentencing

Judgment

A MATHAI
v.
STATE OF KERALA

JANUARY 12, 2005

B (ARJJIT PASA YAT AND S.H. KAPADIA, JJ.]

Penal Code, 1860: ..
Ss. 320, 325 and 326-Accused causing injury to victim with a stone- ...
C Conviction u!s 326 by courts below- 'Grievous hurt'- 'Dangerous weapon'-
Connotation of-Held, injury caused was covered under 'grievous hurt'-
Considering the size of the stone, it cannot be said that a dangerous weapon
was used-Conviction altered to one under s.325.

D Words and Phrases-'Dangerous weapon' and 'grievous hurt' as
occurring in s.326 /PC-Connotation of

The appellant-accused was prosecuted on the charges that he hit PW
I with a stone causing lacerated wound over the left posterior region of
the head and fracture of left upper incisor tooth of the victim. The trial .'
E court convicted and sentenced the accused under section 326 IPC. The
appeal and the revision filed by the accused were dismissed.

In the appeal filed by the accused before the Supreme Court, it was
contended that the injuries caused to the victim did not constitute 'grievous
hurt'; that the weapon allegedly used could not be termed as a 'dangerous
F weapon'; and that the appellant having undergone major portion of the
sentence and more than a decade having elapsed, the sentence be suitably
modified.

Disposing of the appeal, the Court

G HELD: 1.1. The essential ingredients to attract s.326 IPC are: (I)
voluntarily causing a hurt; (2) hurt caused must be a grievous hurt; and
(3) the grievous hurt must have been caused by dangerous weapons or
means. 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
H 450
MA THAI v. ST ATE OF KERA LA [PASAYA T. J.) 451
determined factually. 1455-B-Cj A
State of UP. v. Indrajeet alias Sukhantha, 120001 7 SCC 249, relied
on.

1.2. The evidence of Doctor (PW.5) clearly shows that the hurt or
the injury that was caused was covered under the expression 'grievous B
hurt' as defined under s.320 IPC. The inevitable conclusion is that a
grievous hurt was caused. (455-C]

1.3. It is not that in every case a stone would constitute a dangerous
weapon. It would depend upon the facts of the case. The facts involved in
a particular case, depending upon various factors like size, sharpness, C
would throw light on the question whether the weapon was a dangerous
or deadly weapon or not. That would determine whether in the case s.325
or s.326 would be applicable. In the instant case, considering the size of
the stone which was used, as revealed by material on record, it cannot be
said that a dangerous weapon was used. Therefore, the conviction is altered
to one under s.325 IPC. (455-C-F] D
2. No hard and fast rule can be applied for assessing a proper
sentence; nor a long passage of time can always be a determinative factor
I • 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, the sentence is restricted to the period already E
undergone. (455-F-G]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 89
of 2005.

From the Judgment and Order dated 22.9.2003 of the Kerala High F
Court in Crl. R.P. No. 427 of 1998 (A).

P. Sureshan, Anurag Singh, Mohd. Taiyab Khan and Shakil Ahmed
Syed for the Appellant.

Ms. Indira and K.R. Sasiprabhu for the Respondent. G
The Judgment of the Court was delivered by

ARIJIT PASAYAT, J. Leave granted.

Appellant calls in question legality of the judgment rendered by a learned
H
452 SUPREME COURT REPORTS [2005] I S.C.R.

A Single Judge of the Kerala High Court upholding view of the trial Court that
the appellant (hereinafter referred to as the 'accused') was guilty of offence
punishable under Section 326 of the Indian Penal Code (in short the 'IPC')
and has been rightly convicted under such provision with corresponding
sentence of two years rigorous imprisonment. Learned Judicial First Class
B Magistrate, Kolencherry convicted the accused and sentenced him which was
confirmed by learned Third Additional Sessions Judge, Ernakulam. The
revision applkation filed by the accused under Section 397 read with Section
401 of the Code of Criminal Procedure, 1973 (in short the 'Code') was
dismissed by the impugned order.

C The prosecution case is that on 27.10.1992 at about 5.30 p.m. while
Krishnan Kutty (PW-I) was walking along the public road near Pulinchode
Cruz Junction, the accused hit him on his head and face with a stone causing
injuries. PW-I was taken to the Medical Mission Hospital, Kolencherry for
treatment. On the ba>is of Ext. PI statement given by PW- I, Kumaran (PW-
7) the Head Constable of Puthencruz Police Station registered Crime No.
D 220/1992 under Ext. P3 FIR. Radhakrishnan (PW-8), the then Asst. Sub
Inspector of Police, Puthencruz took up the investigation in the case. On
completion of the investigation, V. Radhakrishnan Nair (PW-10) the then
Sub Inspector of Police, Puthencruz laid the charge before the Collrt.
.'
The accused denied the charge. Thereupon the prosecuti?n examined
E ten witnesses to further its case. It was not seriously disputed during trial that
PW-I sustained injuries on the date of occurrence as alleged by the
prosecution. Immediately after the occurrence, PW-I was taken to the Medical
Mission Hospital, Kolencherry where he was examined by Dr. Reji Paul
(PW-9) who issued Ext. P7 Wound Certificate. Ext. P3 is the Discharge
F Certificate issued by Dr. R.V. Devdas (PW-5). Thus, the medical evidence in
the case shows that PW-I had sustained the injuries as stated by him.

The courts below placed reliance on the evidence of the injured who
was examined as PW-I and found that his evidence was corroborated by the
evidence of Narayan (PW-2), who claimed to be an eye-witness. Accordingly,
G conviction was made and sentence imposed which has been upheld by the
High Court.

In support of the appeal, learned counsel for the appellant submitted
that the evidence of PWs. I and 2 should not have been relied upon by the
courts below and the injuries as noticed by the Doctor (PW-5) do not constitute
H a grievous injury. In addition, weapon allegedly used cannot be termed as a
MATHAI v. STATEOFKERALA (PASAYAT, .L) 453
dangerous weapon to attract Section 326 !PC. In any event, it was submitted A
that the appellant has suffered imprisonment for a major portion of the sentence
awarded and as more than a decade has already elapsed, the sentence needs
to be suitably modified.

In response, learned counsel for the respondent submitted that PW-I
was the victim and there was no·reason as to why he would falsely implicate B
the accused. According to him, the courts below have rightly placed reliance
on his evidence which was corroborated by the evidence of PW-2. The doctor's
evidence clearly shows that a grievous hurt was caused and considering the
fact that a big stone was used, Section 326 !PC has been rightly applied.

We find that PW-I is the victim of the assault allegedly made by the C
accused. His evidence is clear and cogent. As he was a victim, in the absence
of any material to show as to why he would falsely implicate the accused, his
evidence has been rightly relied upon. PW-2's evidence has also corroborated
his evidence.
D
The residual question is whether the factual position indicates that any
grievous hurt was caused and whether the weapon used was a dangerous
weapon. The doctor who exa111ined the injured noticed following injuries.
I •
l. Lacerated wound over the left posterior partial region of the head.

2. Fracture of the left upper second incisor tooth involving the pulp E
and the root.

Alleged cause of the injury is 'assault'. Opinion could be as alleged.

He identified his signature in Ext. P3 discharge certificate.
F
Section 325 deals with punishment for voluntarily causing grievous
hurt.

Section 326 deals with offence of voluntarily causing hurt by dangerous
weapons or means.
G
Section 326 provides that whoever, except in the case provided for by
Section 335, voluntarily causes grievous hurt by means of any instrument for
""" shooting, stabbing or cutting, or any instrumen_t which, used as a weapon of
offence, is likely to cause death, or by means of fire or any corrosive substance,
or by means of any explosive substance, or by means of any substance which
it is deleterious to the human body to inhale, to swallow, or to receive into H
454 SUPREME COURT REPORTS [2005) I S.C.R.

A the blood, or by means of any animal, shall be punished with imprisonment
for life or with imprisonment of either description for a term which may
extend to ten years, and also with a liability to pay a fine.

Sections 325 and 326, like the two Sections immediately preceding,
provide the ordinary pur.ishment and punishment under certain aggravating
B circumstances of the offences mentioned thereunder. The two latter Sections
apply to the case of causing "grievous hurt" and the immediately preceding
two Sections to the case of 'hurt'.

"Grievous hurt" has been defined in Section 320 !PC, which read as
follows:
c
"320 Grievous Hurt The following kinds of hurt only are designated
as "grievous"-

First Emasculation.

D Secondly Permanent privation of the sight of either eye.

Thirdly Permanent privation of the hearing of either ear.

Fourthly Privation of any member or joint.
• i

Fifthly Destruction or permanent impairing of the powers
E of any members or joint.

Sixthly Permanent disfiguration of the head or face.

Seventhly Fracture or dislocation of a bone or tooth.

Eighthly Any hurt which endangers life or which causes the
F sufferer to be during the space of twenty days in
severe bodily pain, or unable to follow his ordinary
pursuits."

Some hurts which are not like those hurts which are mentioned in the
G first seven clauses, are obviously distinguished from a slight hurt, may
nevertheless be more serious. Thus a wound may cause intense pain, prolonged
disease or lasting injury to the victim, although it does not fall within any of
the first seven clauses. Before a conviction for the sentence of grievous hurt
can be passed, one of the injuries defined in Section 320 must be strictly
proved, and the eighth clause is no exception to the general rule of Jaw that
H a penal statute must be construed strictly.
MATHAI v. STATEOFKERALA [PASAYAT, J.] 455

\> The expression "any instrument which used as a weapon of offence is A
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 generalization can be made.

The heading of the Section provides some insight into the factors to be
considered. The essential ingredients to attract Section 326 are : (I) voluntarily B
causing a hurt; (2) hurt caused must be a grievous hurt; and (3) the grievous
hurt must have been caused by dangerous weapons or means. As was noted
.... by this Court in State of UP. v. !ndrajeet Alias Sukhatha, [2000] 7 SCC 249
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.
c
As noted above the evidence of Doctor (PW 5) clearly shows. that the hurt
or the injury that was caused was covered under the expression 'grievous
hurt' as defined under Section 320 !PC. 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 D
juncture, it would be relevant to note that in some provisions e.g. Sections
.... 324 and 326 expression "dangerous weapon" is used. In some other more
serious offences the expression used is "deadly weapon" (e.g. Sections 397 ·
Iii and 398). The facts involved in a particular case, depending upon various
factors like size, sharpness, would throw light on the question whether the
E
weapon was a dangerous or deadly weapon or not. That would determine
whether in the case Section 325 or Section 326 would be applicable.

In the instant case considering the size of the stone which was used, as
revealed by material on record, it cannot be said that a dangerous weapon
was used. Therefore, the conviction is altered to Section 325 !PC. No hard F
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.
G
The appellant who is stated to be in custody shall be released forthwith,
unless he is required to be in custody in connection with any of the case. The
appeal is accordingly disposed of.

R.P. Appeal disposed of.