VISHNU Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner herein has been arrayed as the sole accused in the instant Anx-A1 crime No. 840/2019 of Maranalloor Police Station, Thiruvananthapuram, which has been registered for offences punishable under Secs.447, 294(b), 323, 324 and 326 of the IPC . The said crime has been lodged on the basis of the FI Statement given by the defacto complainant on 28.10.2019 at about 2.20 p.m. in respect of the alleged incident happened on the previous on 27.10.2019 at about 9 p.m. in the night.

(2.) The prosecution case in short is that the petitioner and the de facto complainant are close neighbours and that on 27.10.2019 at about 8 p.m., when the petitioner and some of his friends were celebrating Deepavali and exploding crackers, the defacto complainant had come there and complained about it, which was not to the liking of the petitioner and his friends and that on being so provoked the petitioner had later barged into the residence of the de facto complainant and hit on his nose using a key which resulted in dislocation/fracture of his nasal bone. That when the defacto complainant's sister- in-law and mother had intervened, they were also assaulted by the petitioner, etc., and thereby the petitioner has committed the abovesaid offences.

(3.) The learned counsel for the petitioner would point out that the above said allegations are false and fabricated and even going by the prosecution case the incidents have happened not out of premeditation but only on the basis of some altercations and provocations and further that the Division Bench of the Karnataka High Court in the judgment in State of Karnataka v. Parashram Kallappa Ghevade & ors . (2007 Crl.L.J.479) has held that where the alleged weapon is a bamboo stick which is caused to have fracture of the bone, then in the absence of various factors like clear details like the size, thickness and sharpness of the bamboo stick used in the alleged assault, it cannot be said that the bamboo stick is a dangerous weapon which is likely to cause death as envisaged in Sec.326 of the IPC and in the such cases, only the bailable offence as per Sec.325 of the IPC could be made out and not the non bailable offence as per Sec.326 of the IPC . It is pointed out that the offence coming within the broad scope and ambit of Sec.325 of the IPC (punishment for voluntarily causing grievous hurt) is a genus from which the special species of offences as per Sec.326 of the IPC is carved out, which deals with the offences of voluntarily causing grievous hurt by dangerous weapons or dangerous means etc. Accordingly it is urged by the petitioner's counsel, that in the absence of any specific and precise details established by the prosecution to show that the alleged weapon (key) is a dangerous weapon as envisaged in Sec.326 of the IPC , only the bailable offence as per Sec.325 of the I.P.C could be made out even going by the admitted prosecution allegations. Accordingly it is urged that this Court may grant anticipatory bail to the petitioner subject to stringent conditions.