SHAJI Vs. STATE OF KERALA & ANR.

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 808 of 2017, Judgment Date: Apr 28, 2017

                                                              NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO. 808 OF 2017
               [@ SPECIAL LEAVE PETITION (CRL.) 9390 OF 2015 ]


SHAJI                                                         Appellant (s)

                                VERSUS

STATE OF KERALA & ANR.                                        Respondent(s)

                               J U D G M E N T

KURIAN, J.
1.    Leave granted.
2     On 30.10.2015, this Court passed the following order :-
“The application for impleadment is allowed.
       Learned  senior  counsel  for  the  petitioner  contends,  that   the
petitioner has been convicted under Section 326 of the  Indian  Penal  Code.
It is the contention of the learned  senior  counsel  for   the  petitioner,
that for conviction under Section 326 of the Indian   Penal   Code,  it   is
imperative  for  the prosecution  to  establish  firstly, that  the  accused
is guilty of voluntarily having caused  grievous hurt,  and  secondly,   the
 grievous hurt should have been caused “...by means of  any  instrument  for
shooting, stabbing or cutting, or any instrument which, used as a weapon  of
offence, is likely to cause death...” It is the contention  of  the  learned
senior counsel for the petitioner, that the prosecution has not   been  able
to establish the second ingredient of the offence under Section 326  of  the
Indian Penal Code.
Delay condoned.
Issue notice to the respondent-State of Kerala, returnable after two weeks.
Liberty is granted to the learned  counsel  for  the  petitioner  to  effect
service on the standing counsel for the State of Kerala nominated  for  this
Court.
Mr. Zulfiker Ali P.S., learned counsel, enters appearance on behalf  of  the
newly added respondent and accepts notice.”


3.    We have heard the learned counsel appearing for the appellant and  the
State.  We have also heard the de-facto complainant, who is  the  additional
respondent.  Having regard to the  peculiar  facts  of  this  case  and  the
evidence available on record and in particular, the nature of  injuries  and
the weapon used for inflicting such injuries, we are of the view  that  this
is a case where the conviction should have been only under Section 325  IPC.
 Therefore, the conviction is altered to one under Section 325 IPC.

4.    The appellant has filed an application for  compounding  the  offence.
The application is allowed.  Since the conviction has been  compounded,  the
sentence is limited to the period already undergone.

5.    With the above observations and directions,  the  appeal  is  disposed
of.
                                                   .......................J.
                                                           [ KURIAN JOSEPH ]


                                                   .......................J.
                                                            [ R. BANUMATHI ]

      New Delhi;
      April 28, 2017.