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CASE NO.: Appeal (crl.)  625-626 of 2005

PETITIONER: Anwarul Haq

RESPONDENT: The State of Uttar Pradesh

DATE OF JUDGMENT: 26/04/2005

BENCH: ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T

(Arising out of SLP(Crl.) Nos. 4321-22 of 2004)

ARIJIT PASAYAT, J.

       Leave granted.

       Appellant calls in question legality of the judgment rendered by  a learned Single Judge of the Allahabad High Court, Lucknow Bench  affirming his 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 401 of the Code  of Criminal Procedure, 1973 (in short the ’Code’) was dismissed.   Initially four persons had faced trial.  Three of them were acquitted.     

       The prosecution version in a nutshell is as follows:-

       On 8th of July, 1990, in the evening Naseeb Alam (PW-1) was going  to his house from Sadullanagar market. At about 4.30 P.M. in front of  Village 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 to the village from Sadullanagar reached there upon hearing his  cries, rescued him.  They had seen the incident. 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 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.

       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.

       On behalf of the prosecution side, the witnesses of the facts  viz., PW-1\026Naseebalam, PW-2\026Mohd. Idrish, and formal witness PW-3\026Dr.  S.N. Pandey, PW-4\026Chandrabhan Yadav were examined.  

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       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 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.      Incised wound of 6 Cm. x 1.5 Cm. x 1 Cm.  at the wrist of right  hand in frontal portion. 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 to discard the testimony of the injured  witness.  Accordingly the conviction was made 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  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 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. Residually it was  submitted that the accused is in custody for nearly ten months and the  sentence should be reduced.   

       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 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 courts below, that plea for  the first time cannot be permitted to be raised in this Court.

       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 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 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

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voluntarily causes hurt by dangerous weapon or other means stated in  the Section.  The expression "any instrument which used as a weapon of  offence is likely to cause death" 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 severer punishment for the following reasons:

"...Bodily hurt 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 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 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 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 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.

       The appeals fail and are dismissed.