These are several proceedings by various persons in respect of the same offence. The accused party and the prosecution party lived in the same village as neighbours. They belong to the same caste. The trouble started, when a1 s daughter fell in love with the son of p. W. 4 and brother of p. W. 1. Four months prior to the occurrence, a1 warned to settle the matter by way of marriage and made overtures to p. W. 4 in that regard. But that met with a blunt refusal. From that time, resentment and animosity have been growing between the parties. On 16. 8. 1983, at about 10 p. M. As per the prosecution, a1 accompanied by his sons a2 to a4 and his wife a5 went to throw a challenge to p. W. 4 and abusing them, standing in, the front of p. W. 4 s house. P. W. 4 closed the doors of his house. Sometime later, when p. W. 1 accompanied by her husband entered the house of backdoor, she wanted to put an end to the shouts by the prosecution party and came before them and questioned about their behaviour. Then al, attacked p,w. 1 and she sustained injury. Upon the complaint of p. W. 1, the inspector of police of kottar, took up investigation and filed a final report under sec. 173, cr. P. C, to the effect that the offences under secs. 326, 147 and 148, i. P. C. , appeared to have been committed by the accused. The trial court, after perusing the evidence adduced by the prosecution consisting of the testimonies of p. Ws. 1 to 7 and five exhibits, came to the conclusion that a2 to a5, were not guilty of any offence and that al was guilty of offences under sec. 324, i. P. C. And convicted him accordingly and released him on probation of good conduct, by judgment dated 4th february, 1984. As against these findings and sentence, the state has preferred crl. A. No. 863 of 1984, contending that the offence committed by al was one under sec. 326, i. P. C. And not one under sec. 324, i. P. C. As held by the trial court. The first accused filed revision case no. 382 of 1987 contending that he is not guilty of any offence. P. W. 1 on her side filed two revision petitions. The first one viz. Crl. R. C. No. 197 of 1984 is filed against the acquittal of al under sec. 326, i. P. C. And of the other under sec. 147 read with sec. 326, i. P. C, and the second one viz. Crl. R. C. No. 198 of 1984 is filed for the enhancement of sentence in respect of a1 for the conviction under sec. 324, i. P. C.
2. All the parties were heard elaborately. The liability of al and the liability of other accused was stressed upon. As far as al is concerned, the evidence on record shows clearly that he is the person who inflicted on p. W. 1 the injury found on her by the doctors p. W. 3 and p. W. 7. This point is also not seriously disputed by the learned counsel for the accused. The contention put forth in his argument is regarding the nature of offence. The learned counsel appearing for public prosecutor and the learned counsel appearing for the victim p. W. 1, would contend that the offence is under sec. 326, i. P. C. The learned counsel appearing for the accused would contend that the offence is only under sec. 324, i. P.
3. I shall proceed to examine those questions as per the wound certificate. The injury is as follows:
1. Incised wound on the posterior aspect of the left wrist joint horizontally placed 3 cm. X 1 cm. X depth not probed (bone deep) o/e. Patient not able to extend left wrist joint and metacarpo phalageal joints of all the fingers surgeons note. Extension tenderness of left hand were totally dissected. Left wrist joint cavity was found opened. The cut ends of the tenderness were sutured, x - ray left wrist - no bony injury, ad. On 6th march, 1983 dis on 26. 3. 1983, 441 4 - 2 - 9183. Opinion - injury no. 1 is grievous in nature .
It is further in the evidence of p. W. 3 which is unchallenged that p. W. 1 was in the hospital from 6. 2. 1983 to 26. 3. 1983 that is to say for a period of 48 days.
4. The learned counsel appearing for the accused placing reliance on the decision of this court in joseph alias durain, 1985 m. L. J. (crl.) 1, contended that the description of the injury whether it is simple or grievous by the doctor is not decisive and that it is for the court to decide finally upon the matter. There is no quarrel on this proposition. In this case it is seen from the evidence of doctors p. Ws. 3 and 7, that p. W. 1 has been in the hospital for 48 days and that she underwent surgery. As per sec. 320, i. P. C. , eighth clause, a person who is unable to follow his ordinary pursuits during the space of 20 days on account of the injury is deemed to have sustained a grievous injury.
5. The learned counsel for the accused would contend that the fact of being in the hospital itself would not be a sufficient proof that the person was unable to follow his ordinary pursuits, and in this regard, he placed before me two decisions. The first is of the orissa high court in jaina pradhan v. State, 1982 crl. L. J. 217, in which it was held that the fact of the victim remaining in the hospital for about a month would not be a proof that he sustained a grievous injury, in the absence of evidence that the hurt caused to the sufferer to be, during the space of 20 days, in severe bodily pain or unable to follow his ordinary pursuits. The second decision is the one of gujarat high court in state of gujarat v. Samaj, a. I. R. 1969 guj. 337, in which it was held that the mere fact that he remained in the hospital would not be enough to conclude that he was unable to follow his ordinary pursuits during that period.
6. I feel it exceedingly difficult to follow the above quoted decisions. Normally, a person does not remain in hospital if he is in a position to follow his ordinary pursuits. Often he gets out of the hospita before he is still unable to follow his ordinary pursuits. But it will be difficult to hold that a person in the hospital is able to follow his ordinary pursuits, unless, special circumstances are alleged. For instance, if a person is well off and he is in a private clinic where he wants to reside for some more time than is actually needed for his treatment, he may very well do so. But in the case of a person who is in a government hospital, as in the present case there is not even a remote possibility of the person being kept inside the hospital for more than the necessary days for treatment. It was not suggested to the doctor p. W. 3, who spoke about the injury and the hospitalisation, that the patient was kept in the hospital even though she was able to follow her ordinary pursuits. In the circumstances, prevailing now in government hospitals, neither the patients is likely to remain there more than necessary for treatment, nor the doctors would allow the patient to remain beyond that extent. Therefore, unless special circumstances are alleged, the fact that p. W. 1 was in a government hospital, will by itself prove that she was to follow her ordinary pursuits. I therefore consider that the injury sustained by p. W. 1 is a grievous one.
7. In this case, the weapon used was not produced before the court for holding that the offence falls under sec. 326, i. P. C. The court should give a finding that the weapon used to inflict the wound is such as one described under sec. 326, i. P. C. Either the weapon should be produced or there should be an accurate description of the weapon by the witness or there should be an opinion of the medical experts that the injuries were such as could have been caused by that dangerous weapon. There is nothing of that kind in the present case. Therefore, the weapon used cannot be considered as one described under sec. 326, i. P. C. The offence committed by the accused 1 is one punishable under sec. 325, i. P. C.
8. Let me now turn to the case of the other accused. The charge against them is one under sec. 148 read with sec. 326, i. P. C. The trial court has acquitted them of the charges. This court while dealing with a revision petition against an order of acquittal cannot convert the finding into one of conviction in view of the embargo embodied in sec. 401 (3) , crl. P. C. , nor can remit the matter to the trial court unless a gross miscarriage of justice is noticed. The supreme court had on several occasions to go into the ambit of the power of this court and delineated the powers of revision against the order of acquittal. The most important decisions are as follows:
Mahendra pratap singh v. Sanji v. Singh, 1968 m. L. J. (crl.) 399; chinnasami v. State of andhra pradesh, a. I. R. 1962 s. C. 1780; akalu ahir v. Ramdeo rao, 1974 m. L. J. (crl) 168: 1975 l. W. (crl.) 235;
In the decision of chinnasami v. State of andhra pradesh, a. I. R 1962 s. C 1780, the supreme court while delineating the powers of high court has given some instances in which the high court would be justified in interfering with the acquittal. These instances should amount to gross violation of the principles of criminal jurisprudence. The learned counsel appearing for p. W. I, would find fault with the trial judge that he has not properly appreciated the evidence and that there was ample evidence to convict those accused as well. But he was not able to point out any of the circumstances as listed by the supreme court or any instance analogous thereto. It is also be noted that in this case, the state was satisfied with the findings of the trial court and has not chosen to prefer any appear as far as the acquittal of the other accused was concerned though the state has preferred a revision in respect of the failure of the court to convict a1 under sec. 326, i. P. C. Therefore, this court cannot therefore with the acquittal of a2 to a5.
9. In the result, the conviction of a2 under sec. 324, is set aside, he is found guilty of the offence under sec. 325, i. P. C. And convicted thereunder.
10. Taking into account, the age, character and the antecedents of the offender and the circumstances in which the offence was committed, the first accused is released on his entering into a bond for a sum of rs. 3,000 (rupees three thousand only) to the satisfaction of the chief judicial magistrate, kanyakumar at nagercoil, to appear and receive sentence when called upon during the period of two years and in the meantime to keep peace and to be of good behaviour. He is further directed to pay an amount of rs. 2,000 (rupees two thousand only) to p. W. 1 as provided under sec. 5 of the probation of offenders act. Though this amount is to be recovered as fine by the trial court and remitted to p. W. 1, this will not constitute a sentence. As far as a2 to a5 are concerned, the acquittal is confirmed. Crl. R. C. Nos. 197 and 198 of 1984 and 384 of 1987 are dismissed. The crl. A. No. 863 of 1984 filed by the state is allowed in part.