- (1.) PW 1 Arjunram has his fields in village Sukhana and not far away from the fields of his house. Begaram aged about 12-13 years the son of the accused appellant. The case of the prosecution is that on July 21, 1975 in the noon, Begaram son of the accused appellant, drove his livestock in the fields of PW 1 Arjunram. Arjunram asked Begaram to take away the herd from his fields and Begaram took away the herd from the fields of Arjunram PW 1. At about 5-00 p. m , on the same day, Arjunram PW 1 was sitting under the shadow of a 'khejri' (a tree) not far away from his house. The accused came there with an axe in bis hand and asked Arjunram PW 1 as to why he had beaten Begaram, son of the accused. Arjunram denied to have beaten the son of the accused but the accused rebutted it and thereafter, the accused started landing blows on Arjunram with his axe with which he was armed. The accused continued giving blows till Arjunram PW 1 had fallen on the ground Arjunram raised cries, hearing which, Khetaram PW 2, Tulchharam PW 3 and Hemaram PW 4 whose houses are situated nearby, came there running and the accused, seeking that they are coming, took to his heels. Arjunram PW 1 was taken to his house, his clothes which he was putting on were drenched in blood. From his house, Arjunram was taken to the police station, Loonkaransar in a camel cart where he lodged a report Ex. P 1 at 6. 30 p. m. about the occurrence. A case was registered and investigation was set into motion.
(2.) DR. Chandra Mohan, PW 5, Medical Officer-in-charge of Government Dispensary, Loonkaransar, examined the injuries of Arjunram on 21-7-76 at 7. 00 a. m. and found the following ten injuries, - 1. Incised wound 3 cm x 1 cm x 2 cm on right hand just above the root of right little finger. 2. Incised wound 1-1/2" x 1" x 1/4" just lateral and above the right elbow joint. 3. Incised wound 1-1/2" x 1" x 1/4" just below the above wound No. 2 at right elbow joint. 4. Incised wound 3/4" x 1 /4" x l /4" over head, right parietal bone 3" above the posterior occipital protuberance. 5. Incised wound 1-1/2 cm x 1 cm x 1/2 cm over back of right hand in between thumb and index finger. 6. Incised wound 2 cm x 1 cm x 1 cm just back of right ear in the middle. 7. Incised wound 3" x 1/2 x 1/2" over front of left palm. The wound was extending from the root of the left thumb extending towards wrist joint. 8. Abrasion 2-1/2 cm x 1 cm over the mid-shaft of clevical of right shoulder joint. 9. Swelling 1" x 1" three inches below the left wrist joint. 10. Swelling 3" x 2" over dorsum of right hand. Injuries No. 1 to 8 were simple in nature. Injures No. 1. to 7 were caused by some sharp edged weapon while injuries No. 8,9, and 10 were caused by blunt object. The injuries were stated to be 24 hours old. The doctor advised for x-ray for injury No. 9 and 10 to ascertain their nature. X-rays were taken on July 25, 1975 in P. B. M. Hospital Bikaner, by DR. S. C. Bhargava. On reading the x-ray plates Ex. P 13 and Ex P14, he observed that there was evidence of fracture of lower l/3rd of left ulna and fracture of left scaphoid and further evidence of fracture of 1st and 5th metacarpal bones. The accused was arrested and on his information an axe, the alleged weapon of offence was recovered. A charge under sec. 307 of the Indian Penal Code was framed against the accused. He pleaded not guilty and claimed trial. On behalf of the prosecution, as many as eight witnesses were examined. Thereafter, the accused was examined under Sec. 313 of the Indian Penal Code to explain the circumstances appearing against him in the evidence of the prosecution witnesses. The accused admitted that his son Bheraram, aged about 10 the 12 years, had gone with his herd of cattle to the fields of Arjunram but he stated that Arjunram had then beaten his son Begaram and he also snatched a stick. He (the accused) and his son Sohanram went to the house of Arjunram in the evening to reprimand him as to why he had beaten his son and snatched his stick. Arjunram gave a lathi blow on his head. He wanted to give a lathi blow to his son Sohanram. Sohanram took up an axe and caused injuries to Arjunram. The accused did not examine any witness in defence. The learned Sessions Judge convicted the accused under section 326 I. P. C. and sentenced him to undergo 2-1/2 years' rigorous imprisonment and to pay a fine of Rs. 500/-, in default of payment of which, to further suffer rigorous imprisonment for three months. I have heard Mr. Mathur learned counsel for the accused appellant and the learned Public Prosecutor. I have also gone through the record of the case. Mr. Mathur has not argued on merits. In other words, he has not challenged that it was the accused who was the author of injuries to Arjunram PW 1. His only Submission is that no offence under section 326 IPC is made out as, out of the ten injuries seven were simple in nature and caused by a sharp weapon, three were caused by a blunt weapon and injuries No. 9 and 10 were grievous. He, therefore, submits that at the most, a case under Sec 325, I. P. C. is made out. Apart from the fact that accused being the author of the injuries to Arjunram has not been seriously challanged, there is sufficient material on record to show that it was the accused appellant who gave injuries to Arjunram PW 1. The plea of the accused that it was his son Sohanram who had picked up an axe and gave blows with it to Arjunram PW 1, has rightly been disbelieved by the learned trial court. Sohanram was not examined and he was the best person to have stated so. Both the prosecution and the defence admit that earlier in the day, a herd of cattle, belonging to the accused, was driven by his son Begaram in the fields of Arjunram PW 1. Though the case of the accused is that at that time, Arjunram gave beating to Begaram and therefore, in the evening, the accused and his son Sohanram had gone to remonstrate Arjunram PW 1 as to why he had beaten his minor son. At any rate, there is no dispute between the parties that the accused had gone to the house of Arjunram PW 1. Arjunram PW 1 who is the injured, has stated that when he was sitting below a 'khejri' tree, the accused came there with an axe in his hand and asked him as to why he had beaten his son Begaram ? Arjunram denied having beaten Begaram but the accused insisted and started landing blows on him with his axe. He has also stated that the accused aimed the blows with an axe on his head but in order to ward off the attack and save his head, he raised his bands and received injuries on his palm and hands but still one of the blows fell on his head. He has further stated that even when he had fallen on the ground, the accused continued to give blows with his axe. He is corroborated by the statements of PW 2 Khetaram, PW 3 Tulsaram, PW 4 Hemaram who were having their houses nearby and on hearing the alarm raised by Arjunram PW 1. were attracted to the scene of occurrence. Thus, there is sufficient material on record to show that it was the accused who caused as many as 10 injuries, all by axe, to Arjunram. Though the accused also had one injury, a lacerated wound 2 cm x 1 cm x 1 cm over head just above the posterior occipital protuberance but the injury was simple in nature caused by some blunt weapon. The prosecution has, no doubt, not explained this injury but the injury being minor in nature, to my mind, in the facts and circumstances of the case, the omission to explain the injury on the person of the accused does not render the case of the prosecution doubtful. According to the learned advocate, the grievous injuries No. 9 and 10 were with blunt weapon and, therefore, no offence under section 326, I. P. C. is made out. But this submission is of no force. The case of the prosecution which is satisfactorily established by the evidence of the witnesses, whose names have been referred to above, is that the accused was armed with an axe that he gave the blows with it to Arjunram PW 1. Seven of the blows were given by sharp weapon, as injuries No. i to 7 are by sharp weapon. Some of the injuries are also on the palm and fingers which go to corroborate the statement of Arjunram PW 1 that though his head was aimed more than once but in order to ward off the attack and save his head, he took the blows on his hands. Thus, the accused was armed with an axe. Under section 326 IPC, whoever voluntarily causes grievous hurt by any instrument, which used as a weapon of offence, is likely to cause death, shall be convicted under that section. An axe is such an instrument, which, used as a weapon of offence, is likely to cause death. I am, therefore, of the opinion that whether the sharp size of the axe is used or the blunt is used, it will not make any difference and the offence will still be under section 326, if a grievous hurt is caused. For the purpose of illustration, suppose a man, armed with an iron rod four inches thick, causes blow with it on the head, can it be said that the injury is caused not by such an instrument which, used as a weapon of offence, is likely to cause death ? It is the nature of the instrument which must decide whether the instrument is of the description mentioned in the section, that is, if used as a weapon of offence, is likely to cause death. In Jai Narain vs. State of Bihar (l) a spear was used, but appeared to have been used from the blunt side and caused a simple injury. The question arose, whether the accused is liable under Sec. 324, I. P. C. ? Their Lordships observed as follows - "that injury is described by Mr. Mishra as a lacerated wound 2-1/2"x1/2'' scalp deep on the left side of the head on the parietal region. It is also described as a simple injury. It is obvious that though a farsa had been used, the sharp edge of the farsa may not have been used But since this injury was caused by an instrument which, used as a weapon of offence, is likely to cause death, the offence wound be one under section 324 I. P. C. The conviction, therefore,. . . is changed. . . . . " Thus, if the injury is caused by an instrument which, used as a weapon of offence, is likely to cause death, the offence would be one under Sec. 324 I P. C. , if the injury is simple and section 326 IPC, if the injury is grievous. In the instant case, the accused used an axe and though several injuries appear to have been caused by sharp edge of the axe but three injuries appear to have been caused by the blunt side of the axe and two of them grievous, to my mind, the blunt side of an axe is an instrument which, used as a weapon of offence, is likely to cause death. Merely because three of the injuries were caused by the accused by the blunt side of the axe, it cannot be said that the accused is not liable under Sec. 326, I. P. C. Thus, the accused was rightly convicted under Sec. 326, I. P. C. The accused has been sentenced to 2-1/2 years' rigorous imprisonment and to pay a fine of Rs, 500/ -. The sentence, to my mind, is a bit excessive,
(3.) IN the result, the appeal is partly allowed. While maintaining the conviction of the accused appellant under Sec. 326, I. P. C, I sentence him to two yaers' rigorous imprisonment and to pay a fine of Rs. 100/-, in default of payment of fine, to further suffer one month's simple imprisonment. The accused is on bail. He shall surrender to his bail bonds forthwith, failing which, the trial court shall take steps to apprehend the accused so that he undergoes the sentence awarded to him or any remaining part thereof. .;