Accused Charged U/S.326 IPC Can Be Convicted U/S.323 In Absence of Specific Charge Framed For The Latter Provided Evidence Supports Lesser Offence: Kerala High Court
The Criminal Revision Petition before the Kerala High Court was directed against the judgment confirming the conviction of the accused petitioner in a case registered under Section 326 of the IPC.
Justice Kauser Edappagath, Kerala High Court
While confining the sentence imposed upon a 73-year-old man in a criminal case to three days' imprisonment, which he had already undergone, the Kerala High Court has observed that an accused charged under Section 326 of the IPC can be convicted under Section 323, even if there is no specific charge for the latter, provided the evidence supports the lesser offence.
The Criminal Revision Petition before the Kerala High Court was directed against the judgment confirming the conviction of the accused petitioner in a case registered under Section 326 of the IPC.
The Single Bench of Justice Kauser Edappagath observed, “Section 323 of IPC is a minor offence compared to Section 326. Hence, an accused charged under Section 326 of IPC can be convicted under Section 323 of IPC, even if there is no specific charge for the latter, provided the evidence supports the lesser offence.”
Advocate P.V. Anoop represented the Petitioner, while Public Prosecutor Sangeetha Raj N.R represented the Respondent.
Factual Background
The case dates back to the year 1999 when the revision petitioner intentionally pushed down the defacto complainant on the floor, caught hold of his neck, and hit on his face with a stone, causing fracture of the bone. The trial court found the revision petitioner guilty under Section 326 of IPC, and he was convicted for the said offence. He was sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs.2,000. Out of the fine amount, if realised, Rs.1,000 was ordered to be paid to the defacto complainant as compensation.
Arguments
One of the arguments raised from the petitioner’s side was that there was no evidence to show that the de facto complainant sustained any of the injuries mentioned in Section 326 of IPC and hence, the offence under Section 323 alone would be attracted.
Reasoning
The Bench reiterated that the jurisdiction of the High Court in revision is severely restricted, and it cannot embark upon reappreciation of evidence. Finding no reason to interfere with the finding of the trial court as well as the appellate court, the Bench stated that the prosecution had succeeded in proving beyond reasonable doubt that the revision petitioner had assaulted the complainant with a stone.
Referring to section 326 IPC, the Bench explained that if the instrument used to cause grievous hurt is an instrument for shooting, stabbing or cutting (such as a gun, knife, sword, etc.), it is not necessary to prove that such an instrument is likely to cause death. The prosecution needs to establish that the weapon used for causing grievous hurt is likely to cause death only in a case of ‘any instrument’ which falls under the second category. It was further mentioned that a stone may qualify as a dangerous weapon depending on its nature, size, sharpness or its potential to cause the death of a person.
“In short, the prosecution failed to adduce evidence to prove that MO1 stone either qualifies the expression ‘an instrument of cutting’, or the expression ‘any instrument which, used as a weapon of offence, is likely to cause death’ found in Section 326 of IPC”, it said while also adding, “To attract Section 326 of IPC, the prosecution must also establish that the injured has sustained one of the kinds of injuries enumerated in Section 320 of IPC.”
The hurt inflicted by the revision petitioner on the complainant using the weapon fell under Section 319 of the IPC. Therefore, as per the Bench, the conviction under Section 326 of IPC couldn’t be sustained. Instead, the revision petitioner was held liable to be convicted under Section 323 of IPC.
Coming to the issue of sentence, it was brought to the Court’s notice that the revision petitioner is aged 73 years and is bedridden. The revision petitioner and complainant were also on cordial terms. The Bench thus held that the substantive sentence can be confined to three days' imprisonment, which he had already undergone. It was further noted that the revision petitioner has been undergoing the ordeal of prosecution for the last almost 19 years.
Thus, allowing the appeal in part, the Bench directed the petitioner to deposit a fine amount of Rs 2,000 before the trial court.
Cause Title: Kumaran V. State Of Kerala (Neutral Citation: 2025:KER:46791)
Appearance
Petitioner: Advocates P.V. Anoop, Phijo Pradeesh Philip, Amicus Curiae Thushara K
Respondent: Public Prosecutor Sangeetha Raj N.R.