MADHU.G Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner herein has been arrayed as the sole accused in the instant Crime No.1779/2019 of Kadakkal Police Station, Kollam, which has been initially registered for offences punishable under Sections 341 and 324 of the Indian Penal code. The crime has been registered on the basis of the First Information Statement given by the defacto complainant on 7.10.2019 at about 08.48.pm in respect of the alleged incident which happened on the same day on 7.10.2019 at 11.00 am in the morning. The Police after investigation has thereafter added the offence as per Section 326 and 452 of the IPC in the abovesaid crime.

(2.) Brief of the prosecution case is that, the petitioner/accused aged 54 years is living in the immediate neighbourhood of the minor victim boy aged 13 years where he is residing along with his parents and that on 7.10.2019 at about 11.00am, when his mother was drying clothes and asked for the help of her son, (who is the minor victim boy in this case aged 13 years), to give the said clothes to her, the boy not only disobeyed the mother but also abused the mother using bad words and the petitioner who was sitting nearby lost his control and had taken a stick (kaattukambu) and had beaten the boy on his legs and hands. The father of the minor victim boy has given the instant FIS which has been resulted in the abovesaid crime. The boy was immediately taken to the hospital and since the X-ray has disclosed that the boy has sustained a fracture on his wrist, the Police has added the offence as per Section 326 of IPC. Further, the offence as per Section 452 of the IPC has been added on the premise that the petitioner has criminally trespassed into the property of the boy's father while doing the above said Act. The petitioner/accused has been arrested this case on 13.12.2019 and he has been remanded and has been under detention since then.

(3.) The counsel for the petitioner would point out that the abovesaid allegations are false and baseless and further that the abovesaid allegations had been made out of misunderstandings and that even going by the prosecution case, the boy had abused his mother in extremely bad manner and that the petitioner who was sitting nearby got provoked in the spur of the moment and the act was so done. Further that it has been held by the Division Bench of the Karnataka High Court the case in, State of Karnataka by Kakati Police Station v. Parashram Kallappa Ghevade [2007 Cri Rs.J 479] and also by this Court in the decisions as in Praveen Das v. State of Kerala and Others [2019 (4) KLT 815] that in a case where the alleged weapon that has been used, which has led to the victim suffering grievous hurt like fracture etc, then in the absence of clear material facts like the size, thickness and sharpness of the alleged weapon like bamboo stick/firewood etc, it cannot be said that such a weapon like bamboo stick, firewood etc, can be understood as a deadly weapon which is likely to cause death as is envisaged in Section 326 of the IPC. In such cases, even if grievous hurt by way of fracture etc is caused, the serious non bailable offence as per Section 326 of IPC may not be made out and only the bailable offence as per Section 325 of IPC may be disclosed. It is pointed out that the offence as per Section 326 of IPC deals with voluntarily causing grievous hurt by dangerous weapons or dangerous means, which is a non bailable offence for which the maximum punishment would extend upto imprisonment for life, and that the said offence as per Section 326 would be a "species" which is carved out from the larger genus of the offence as per Sec.325 of the IPC, which deals with punishment for voluntarily causing grievous hurt, which is a bailable offence. That unless the prosecution can clearly establish the necessary ingredients of Section 326 including the fact that the alleged weapon, the use of which has led to the victim suffering grievous hurt etc, should be a dangerous weapon which is likely to cause death or the use of which would amount to a dangerous means as envisaged in Section 326 of IPC etc. It is pointed out that in the instant case the prosecution has not given any material particulars regarding the size, thickness and sharpness of the alleged stick used in the instant case and therefore merely because the fracture is sustained by the victim, is no ground to automatically assume that the offence as per Section 326 of IPC is made out and that hence going by the above said dictum laid down in these decisions at best an offence as per Section 325 of IPC is made out, which is bailable offence.