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Synopsis

The Jammu and Kashmir & Ladakh High Court has delivered a significant ruling, asserting that stones used in pelting incidents cannot be categorised as 'dangerous weapons' or instruments akin to those outlined in Section 326 of the Ranbir Penal Code (RPC), which addresses causing grievous hurt with dangerous weapons. In furtherance of this observation, the court granted probation to an accused who allegedly while pelting stones, injured the eye of the complainant, causing a serious injury.

The decision was delivered by Justice Sanjeev Kumar, who elucidated that “The size of stones used for pelting cannot, by any stretch of reasoning, be termed as a 'dangerous weapon' or 'an instrument' used for shooting, stabbing or cutting etc., nor can it be termed as 'any corrosive or 'any explosive substance' or a substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood etc.”

The case stemmed from a criminal appeal lodged against a judgment dated March 16, 2009, issued by Chief Judicial Magistrate, Kathua. The appeal, filed by Jaswant Singh, who is currently incarcerated in District Jail Kathua, contested his conviction and sentence under Section 326 of the Ranbir Penal Code (RPC).

The appellant’s act emanated from a civil dispute between the appellant and the complainant concerning a land, wherein the appellant pelted stones upon the complainant for having trespassed on the disputed land.

Representing the appellant, Advocate Vishal Sharma contended that the trial court had erred in convicting his client under Section 326 RPC, contending that he was initially charged under Section 336 RPC. The appellant asserted that this procedural error prejudiced the case, further arguing that the evidence did not substantiate the charge under Section 326 RPC. Contesting his conviction under Section 326 of the RPC, the appellant argued that the stones were not dangerous weapons, urging that the offence should have been charged under Section 325, which deals with causing grievous hurt without weapons.

Following a thorough examination of Sections 325 and 326 RPC, the Court stressed that Singh's actions, though leading to grievous hurt, did not involve the utilisation of instruments deemed 'dangerous weapons.’

In an alternative plea, the appellant's counsel argued for the benefit of probation under Section 562 of the Code of Criminal Procedure (CrPC) read with the Probation of Offenders Act, 1966 ('the Act of 1966'). The appellant emphasised that the incident occurred on December 6, 2001, when the appellant was 25 years old. It was also pointed out that since then, both parties had moved on without harbouring any resentment. It was further submitted that “the offence for which the appellant has been convicted was the first offence committed by him and thereafter he has lived as a peaceful citizen and has not committed any other act or omission which is an offence under RPC or any other penal law in force.”

After reviewing the evidence, the court found that the offence under Section 326 RPC was not established. Instead, it deemed the charge under Section 325 RPC as appropriate, stating, "From a reading of Section 325 RPC, it transpires that it provides for punishment with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. This punishment is for ‘voluntarily causing grievous hurt’.”

The court noted, "The appellant was seriously prejudiced as he had no opportunity to cross-examine the prosecution witnesses on the charge of Section 326 RPC, nor could he lead his defence keeping in view that the charge he was required to meet was a charge under Section 326 RPC."

The judgment referred to the prosecution's claim that Singh had pelted stones at the complainant, resulting in the loss of sight in one of the complainant’s eyes. However, the court determined that the stones used did not qualify as ‘dangerous weapons’ under Section 326 RPC, citing the Supreme Court case of Mathai vs. State of Kerala, 2005(3) SCC 260, which discussed the distinction between Sections 325 and 326 RPC.

Further elaborating, the court noted that while Singh was aware of the potential consequences of pelting stones, the size of the stones used did not elevate the offence to one committed with a dangerous weapon under Section 326.

Quoting the Supreme Court, the court stated, “It is not that in every case a stone would constitute a dangerous weapon. It would depend upon the facts of the case.”

Consequently, the court set aside Singh's conviction under Section 326 RPC and convicted him under Section 325 RPC, which carries a lesser penalty.

Considering Singh's conduct and it being his first offence, the court decided to defer the imposition of sentence and granted him probation of good conduct under Section 562 CrPC read with Section 4 of the Act of 1966. The court, in this regard, said that “The appellant has been facing trial since 2001 and has thus suffered adequately for the offence he committed.”

Furthermore, the judgment outlined the terms of probation, requiring Singh to report to the Station House Officer (SHO) monthly and to compensate the complainant with Rs. 50,000, to be deposited with the trial court within two months.

 

Cause title: Jaswant Singh v State of J&K [CRA No. 16 of 2009]