LexANWARUL HAQ versus THE STATE OF UTTAR PRADESH
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ANWARUL HAQ v. THE ST A TE OF UTT AR PRADESH APRIL 26, 2005 [ARIJIT PASAYAT AND S.H. KAPADIA, JJ.] A B Penal Code, 1860-Section 324-Prosecutionfor causing grievous injury -Non-recovery of weapon of offence-Medical opinion proving use of the weapon-Account of eyewitnesses-Conviction by Courts below-On appeal, C held: Jn view of evidence of eyewitnesses and medical opinion conviction justified-Non-recovery of weapon cannot be a ground to discard evidence of eye-witnesses. Practice and Procedure : Plea raised for the first time before Supreme Court--He/d: Not [) permissible. Words and Phrases : 'Dangerous weapon '-Meaning of in the context of Section 324 /PC. i E Appellant-accused alongwith 3 other accused persons was tried u/ss. 324 r/w 34, 504 and 506(2) IPC, for having inflicted blows by a knife on PW-1 causing serious injuries to him. PW-2 was eyewitness to the incident Trial Court acquitted the other 3 accused, while convicting the appellant-accused. High Court, on revision, upheld his conviction. F In appeal to this Court, appellant contended that Section 324 IPC was not applicable as it was not established that the weapon used was a dangerous weapon and that the knife alleged to have been used was not recovered. Dismissing the appeal, the Court HELD : 1. The trial court has analysed in great detail the evidence of eye witnesses, including that of PW-I, the injured and therefore there is no scope for interference. The plea that the weapon used was not a I G 917 fl 918 SUPREME COURT REPORTS [2005) 3 S.C.R. A dangerous weapon had never been urged before the trial court or the High Court. Whether the weapon is a dangerous weapon or not has to be gauzed only on the factual basis. As there was no challenge on this aspect by the accused before the cour-ts below, that plea for the first time cannot be permitted to be raised in this Court. [920-G-H; 921-AJ B 2. Eye-witnesses in th~ present case have·described the knife, and merely because the knife has not been recovered during investigation same cannot be a factor to discard the evidence of PWs. 1 and 2. Wounds noticed by the Doctor (PW-3) also throw considerable light' in 'fhis aspect. Doctor's opinion about the weapon, though theoretical, cannot be totally wiped out. C In that view ofthe matter the appellant has been rightly convicted under Section 324 IPC. (921-H; 922-A) 3. The expression "an instrument, which used as a weapon of offence, is likely to cause death" as occurring in Section 324 IPC should be construed with reference to the nature of the· instrument and not the D manner of its use. What has to be established by the prosecution is that the accused voluntarily caused hurt and that such hurt was caused by means of an instrument referred to in this Section. The Section prescribes a severer punishment where an offender voluntarily causes hurt by dangerous weapon or other means stated in the Section. The expression when read in the light of marginal note to Section 324 means dangerous E weapon which if used by the offender is likely to cause death. [921-B-D) CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 625- 626 of 2005. From the Judgment and Order dated 16.5.2003 and 24.2.2004 of the F Allahabad High Court in Crl.R. No. 44/2000 and Crl.M.Application No. 1482/ 2004 in Crl.R. No. 44 of 2000. Atul Kr. Sinha and Devendra Singh for the Appellant. Ravi Prakash Mehrotra, Mrs. Alka Agarwal and Garvesh Kabra for the G Respondent. The Judgment of the Court was delivered by ARIJIT PASAYAT, J. Leave granted. H Appellant calls in question legality of the judgment rendered by a learned ANWARUL HAQv. STATE OF UTT AR PRADESH [PASAYAT,J.] 919 Single Judge of the Allahabad High Court, Lucknow Bench affinning his A conviction for offence punishable under Section 324 of the Indian Penal Code, 1860 (in short the 'IPC') and sentence of one year rigorous imprisonment as imposed by the trial court. The revision application filed under Section 397 read with Section 40 I of the Code of Criminal Procedure, 1973 (in short the 'Code') was dismissed. Initially four persons had faced trial. Three of B them were acquitted. The prosecution version in a nutshell is as follows :- On 8th of July, 1990, in the evening Naseeb Alam (PW-I) was going to his house from Sadullanagar market. At about 4.30 P.M. in front of Village C Parsarampur on the road, four accused persons, who were co-villagers met him. D
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