Rishin Paul vs The State of Madhya Pradesh

C.V. Sirpurkar, J.—This criminal revision filed by the revision petitioner/accused Rishin Paul is directed against the order dated 20.04.2015 passed by the Court of Judicial Magistrate First Class, Jabalpur, in Criminal Case No. 5416/2015 (State of M.P. Vs. Sanjay Paul & Others), whereby a charge under Sections 294 , 323 , 324 and 506 of the IPC was framed against the co-accused person Jitendra Sonkar and a charge under Sections 294 , 323 and 324 read with Section 34 was framed against the applicant Rishin Paul and co-accused persons, Sanjay Paul and Manish Paul.

The facts giving rise to this criminal revision may briefly be stated thus: A first information report was lodged by victim Alik Lal in P.S. Belbagh, District-Jabalpur, at 08.45 p.m. on 13.3.2014 to the effect that at about 02.30 p.m. the same day, accused persons Sanjay Paul, Rishin Paul, Manish Paul and Jitendra Sonkar had filthily abused him by reason of previous enmity and had beaten him up with fists and kicks. Accused Jitendra Sonkar had hit him on his knees with an iron rod. Consequently, the first information report under Sections 294 , 323 and 506 read with section 34 of the I.P.C. was registered. During medical examination and X-ray examination victim was found to have sustained a lacerated wound on left knees and was also found to have suffered a fracture of left tibia-fibula bone. An iron rod about 25 inches long, having diameter of 2 inches was seized from the possession of co-accused Jitendra Sonkar. Subsequently, a charge sheet under Sections 294 , 323 , 506 and 325 read with section 34 of the I.P.C. was filed in the Court of Judicial Magistrate First Class, Jabalpur. By impugned order, learned Magistrate framed charges against the accused persons including the revision petitioner, as aforesaid.

The impugned order has been assailed on behalf of the revision petitioner solely on the ground that on the basis of the charge sheet and the documents filed therewith, a charge under Section 324 or 324 read with section 34 of the I.P.C. is not made out. Learned counsel for the revision petitioner has contended that an iron rod cannot be considered to be an instrument for shooting, stabbing or cutting. Keeping in view the dimension of iron rod allegedly used in commission of offence, it cannot be said to be a dangerous weapon because if it is used as a weapon of offence, it is unlikely to cause death. In any case, there is no indication in the impugned order that learned Magistrate considered the weapon of offence as a dangerous weapon. Learned counsel for the revision petitioner further submits that since the fracture is alleged to have been caused, a charge under Section 325 of the IPC, instead of one under Section 324 , ought to have been framed.

Learned Panel Lawyer for the respondent State has supported the impugned order.

Having considered the rival contentions, this Court finds substance in the arguments advanced by learned counsel for the revision petitioner. Admittedly, iron rod used for causing hurt to the victim, cannot be said to be an instrument for shooting, stabbing or cutting. It is neither a heated substance, nor a poisonous substance nor an explosive substance, nor a substance deleterious to human body. As such, the only question that arises for consideration is whether the iron rod used in the incident, can be considered to be an instrument which, if used as a weapon of offence, is likely to cause death? There is no indication in the impugned order as to whether or not learned Magistrate considered the iron rod seized from possession of co-accused Jitendra Sonkar, as a dangerous weapon.

In any case, if learned Magistrate considered the iron rod seized in the case to be a dangerous weapon, an offence under Section 326 and not under Section 324 of the IPC would be made out for the simple reason that the victim is said to have suffered corresponding bony injury.

In aforesaid view of the matter, if learned Magistrate considers the rod to be a dangerous weapon, a charge under section 326 is required to be framed. If not, a charge under section 325 would have to be framed. Thus, the charge framed against the applicant and co-accused persons under Sections 324 or 324 read with section 34 of the I.P.C. is not sustainable and is liable to be set-aside.

Now, the question that remains for consideration is whether the weapon seized in case can be considered to be a dangerous weapon or not?

In the case of Mathai Vs. State of Kerala, , the Supreme Court has observed as here under:

"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 fact of each case and no generalisation can be made.

"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 provision e.g. Section 324 and 326 the "dangerous weapon" is used. In some other more serious offences the expression used is "deadly weapon" (e.g. Sections 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."

Aforesaid principle has been reiterated in the case of Prabhu Vs. State of Madhya Pradesh, .

Likewise, in the case of Anwarul Haq Vs. The State of Uttar Pradesh, , the Apex Court with reference to Section 324 of the IPC has held, that 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 manner of its use.

In aforesaid circumstances, it would be appropriate for Learned Magistrate to physically inspect the iron rod seized in the case and after giving both the parties an opportunity of being heard to record a finding by a reasoned order as to whether or not he consider the same to be a dangerous weapon, keeping in view the aforesaid principles and; thereafter, to frame appropriate charge accordingly and proceed further in the case in accordance with law.

Consequently, Learned Magistrate is directed to physically inspect the iron rod seized in the case and after giving both the parties an opportunity of being heard, record a finding by a reasoned order as to whether or not he consider the same to be a dangerous weapon, keeping in view the aforesaid principles and; thereafter, to frame appropriate charge accordingly and proceed further in the case in accordance with law.

C.C. as per rules.