Subbarayan vs State

David Annoussamy, J.—This is a revision by the accused, who stands convicted u/s 326, I.P.C, and sentenced to undergo two years

imprisonment and fine of Rs. 100.

The facts are very simple. The accused was found staring at the daughter of P.W.I. Upon P.W.I questioning the accused on his behaviour the

accused got irritated and beat P.W.I on his left shoulder with an iron pipe M.O.I. upon the complaint of P.W.1, the investigating officer filed a

report u/s 173, Crl. P.C., to the effect that an offence u/s 326, I.P.C., appeared to have been committed by the accused. Thereafter, charge was

framed, accordingly three eye witnesses were examined, including the injured, and in addition medical evidence was also adduced. Upon that

evidence, the learned Magistrate came to the conclusion that an offence u/s 326, I.P.C., was committed and the same was confirmed by the

appellate court.

The learned Counsel for the Petitioner does not challenge the above facts. What he contends is that there is no judicial finding that the hurt is a

grievous one caused by a dangerous weapon.

For a hurt to be considered as a grievous one it should come under any one of the categories referred to in Section 320, I.P.C. The doctor may

have an opinion that the hurt is a grievous one clinically But from the opinion of the doctor the court has to come to its own conclusion whether the

hurt is a grievous one within the meaning of Section 320, I.P.C. There is no such finding in this case, Of course it is alleged that because of the

attack by the accused on P.W.I with M.O.I, he (P.W.I) sustained a fracture on his clavicle. But there is no clear proof, to that effect not even in

the evidence of the doctor.

For holding that a weapon to be a dangerous one within the meaning of Section 324 or 326, I.P.C, either on a perusal of the weapon or on

perusing the description of the weapon used the court shall record a finding to that effect or that there should be an opinion of the doctor that the

injury found on the injured could have been caused only by a dangerous weapon. In this case, though the weapon used MO. 1 was produced the

court has not not taken any pain to describe it and give a finding that it is a dangerous weapon. Therefore the offence committed by the accused

could be only u/s 323. I.P.C.

In the result, the revision petition is allowed in part and the conviction and sentence u/s 326 , I.P.C, are set aside and instead the Petitioner is

convicted u/s 323, I.P.C, and sentenced to pay a total fine of Rs. 350 inclusive of the fine already paid. The balance of fine amount of Rs. 250

shall be paid within one month from the date of communication of this order by the trial court, failing which, the Petitioner shall undergo

imprisonment for one month.