Person Charged With 'Hurt To Deter Public Servant' Can Be Convicted For Minor Offence Of Simple Hurt, Not 'Hurt By Dangerous Weapons': Kerala HC

Justice Jobin Sebastian added that conviction under Section 323 IPC for simple hurt would sustain if Section 332 IPC is charged as the former is a 'minor charge'.

The Court was considering a revision petition challenging the concurrent finding of guilt passed by the trial court and the appellate court for the offence under Section 324 IPC.

The prosecution allegation was that the three accused, employed in a private bus, showered abuses against a Police Constable, who had questioned them for over speeding. The first accused/revision petitioner was the driver and it is alleged that he stabbed the officer with screwdriver and voluntarily caused hurt.

It is further alleged that the other two accused also assaulted the officer, while he was discharging his official duty, by fisting and beating him repeatedly. They were charged of the offences under Sections 294(b) and 332 read with 34 IPC.

After trial, the Magistrate exonerated the second and third accused of all charges. The revision petitioner was found not guilty of the offences charged for the reason that there was no evidence to establish that the injured was discharging his official duty. However, he was found guilty of the offence under Section 324 IP and was sentenced to 2 years' imprisonment along with fine of Rs. 6000.

The appellate court confirmed the conviction as well as the sentence. Aggrieved, he came before the High Court.

After perusing the impugned judgment, the Court remarked that the victim gave evidence in a convincing manner and the same did not have any omissions or contradictions. It was further found that the medical evidence, including the wound certificate and deposition of the doctor, would corroborate with the prosecution case.

Noting that both the trial court and the appellate court consistently and unequivocally found that the petitioner's act attracted the offence under Section 324 IPC even in the absence of a specific charge, the Court felt that the question to be considered was whether the courts were justified in doing so.

The Court examined Section 222 CrPC, which provides that a criminal court may convict an accused for an offence for which no specific charge had been framed if the proved offence is a minor offence of the principal offence for which he was charged.

Clarifying the meaning of what a 'minor offence' is, the Court observed:

“Though the expression 'minor offence' has not been specifically defined either under the IPC or under the Cr.P.C., judicial pronouncements have consistently held that an offence can be treated as a minor offence only when (1) the punishment prescribed for the said offence is lesser than that prescribed for major offence and (2) the ingredients constituting the minor offence are inherently included in, and form part of, the major offence charged. In other words, the two offences must be cognate in nature, and the major offence should encompass all the essential ingredients of the alleged minor offence.”

The Court then looked at the matter at hand and opined that Section 324 IPC contains an additional and distinct charge absent in Section 332. Also, since both the provisions prescribe the same maximum punishment, Section 324 IPC cannot be regarded as a minor offence of Section 332 IPC.

“The use of a dangerous weapon or means is therefore an essential constituent of the offence under Section 324 of the IPC. Consequently, the ingredients necessary to constitute an offence under Section 324 of the IPC are not inherently included in the ingredients of Section 332 of the IPC. More importantly, both Sections 324 and 332 of the IPC prescribe the same maximum punishment, namely, imprisonment of either description for a term which may extend to three years or with fine or with both. Therefore, the offence punishable under Section 324 IPC cannot be regarded as a minor offence of Section 332 of the IPC within the meaning of Section 222 of the Cr.P.C. Consequently, in the absence of a specific charge under Section 324 of the IPC, the judgment of conviction and the order of sentence passed by the trial court, which was affirmed in appeal, for the said offence cannot be legally sustained,” the Court said.

While holding so, the Court was of the view that the petitioner can be convicted of the offence under Section 323 IPC as its essential ingredients are present in Section 332 and the former prescribes a lesser punishment. It remarked:

“The essential ingredients of the offence under Section 323 IPC are inherently subsumed within the offence punishable under Section 332 IPC. Since Section 323 IPC prescribes a lesser punishment in comparison to Section 332 IPC, the offence under Section 323 IPC may legitimately be regarded as a minor offence included within the graver offence under Section 332 IPC. Consequently, even if the prosecution fails to establish all the ingredients necessary to attract Section 332 IPC, the accused may still be convicted under Section 323 IPC although there is no specific charge for the offence punishable under Section 323 IPC, provided the evidence on record satisfactorily proves the commission of simple hurt.”

The Court, thus, allowed the petition in part. The conviction under Section 324 IPC was set aside but he was convicted of the lesser offence under Section 323 IPC. He was sentenced to undergo imprisonment till the rising of the Court and to pay of fine of Rs. 1000.

Case No: Crl.Rev.Pet No. 187 of 2016

Case Title: Babu Avarachan v. State of Kerala

Citation: 2026 LiveLaw (Ker) 290

Counsel for the petitioner: C.P. Udayabhanu

Counsel for the respondent: U. Jayakrishnan - Public Prosecutor

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