V.V. Bedarkar, J.
1. This is an application making a grievance about the conviction and sentence for the offence punishable under Section 333 of the Indian Penal Code. The facts of the case are that complainant Suraji Pragji was serving as a conductor in Gujarat State Road Transport Corporation, on 25-1-1983 in the bus going to Deesa. He took some passengers at the bus-stand named Kuda Vasan. Among them was present petitioner-accused Rabari Varva Jesang. He took the ticket from Kuda Vasan to Agathala. The bus fare was Re. 1/- The petitioner-accused gave a currency note of Rs. 10/-. The Complainant deducted Re. 1/- and gave the remaining amount in the form of one currency note of Rs. 5/- and two currency notes of Rs. 21- each. Among those currency notes of Rs. 21- each, one was spoiled and, therefore, the accused requested the complainant to change it. The complainant told the accused that he would give him at the time when he gets down at Agathala. When the bus came to Agathala Bus Stand, there was hot exchange of words between the accused and the complainant and in that the accused brought out a shoe and attempted to give a blow with it to the complainant. The complainant raised his hand and, therefore, he was injured on his hand. Due to this, there was a fracture of left 5th metacarpel bone. As there was fracture, the learned Sessions Judge, Banaskantha at Palanpur, convicted the petitioner-accused for the offence punishable under Section 333 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for three months and to pay a fine of Rs. 200/- and in default of payment of fine to undergo one month's further rigorous imprisonment.
2. It is the contention that even if all the allegations made by the complainant are accepted, the offence would not go beyond Section 332 of the Indian Penal Code. It is not the case of the prosecution that a blow with a weapon which could cause fracture was aimed at a vulnerable part of the body. Due to some exchange of words and heat of passion, the accused brought out his shoe and attempted to give a blow which the complainant took on his hand and, therefore, there was fracture of finger bone. Therefore, this is not an intentional act. In order to support this argument, my attention is drawn to the provisions of Section 332 of the Indian Penal Code which refers to 'Voluntarily causing grievous hurt'. It reads:
322. Whoever voluntarily causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he causes is grievous hurt is said 'voluntarily to cause grievous hurt.
It is submitted that if a person voluntarily causes hurt, and if the hurt which he intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he causes is grievous hurt, then it can be said that grievous hurt is caused voluntarily. Explanation to this Section 322 of the Indian Penal Code is very material. In order to show that a person voluntarily caused grievous hurt it must be proved not that he caused grievous hurt, but that he intended or knew himself that his act was likely to cause grievous hurt. It is, therefore, submitted that can it be said that a person while raising his shoe to give a blow intended or knew himself that his act was likely to cause grievous hurt? My attention is drawn to the panchnama which would show that the muddamal shoe was old and had no iron heel or spikes which would in the ordinary course of giving a blow cause a fracture. Therefore, the nature of the article used was such that as a natural consequence grievous hurt would not be caused. It is, therefore, submitted that the accused can at the most be convicted for the offence under Section 332 and not 333 of the Indian Penal Code.
3. In Jani Gulab Shaikh v. The State of Maharashtra, 1970 Supreme Court Cases (Cr.) 532, the facts were that on being given a push a man fell down as a result of which his occipital bone was fractured. The High Court convicted the accused under Section 304, Part II, of the Indian Penal Code. The Supreme Court observed that it is very rarely that if a man is pushed and he falls on the road the occipital bone gets fractured, and ultimately the Supreme Court altered the conviction to one under Section 323 of the Indian Penal Code.
4. There is also a decision of this Court (M.P. Thakker, J.)(as he then was) in Criminal Appeal No. 39 of 1974, decided on 7-2-1974. Therein the accused was convicted for the offence under Section 325 of the Indian Penal Code. The question for consideration in that case was whether it would constitute an offence under Section 325 or 323 of the Indian Penal Code. The injured had sustained a fracture and, therefore, that injury would attract clause Seventhly of Section 320 of the Indian Penal Code. It was observed that it would constitute the offence of voluntarily causing grievous hurt as defined by Section 322 of the Indian Penal Code provided it was the intention of the assailant to cause grievous hurt or it can be said that it was within his knowledge that the assault was likely to cause grievous hurt and provided in fact causes grievous hurt. In that case also, as is the case before me grievous hurt had been caused in point of fact. The question that was considered was whether it can be said that the appellant accused had intended to cause grievous hurt. Now, in that case, after the injured had fallen down, a kick was given which came to land on his left thigh. From that mere circumstance, this Court held, the intention to cause grievous hurt could not be attributed to the accused. It was further observed that when tempers are running high a man may momentarily lose control of himself and may give a kick. Unless a, kick wasi given on some delicate part deliberately, it would be difficult to hold that the assailant intended to cause grievous hurt. Same consideration would prevail here also. Due to the dispute between both the accused would have, being a headstrong person, raised a shoe to give a blow, which, unfortunately, fell on the finger of the complainant, which resulted in fracture. In these circumstances it cannot be said that the accused intended to cause grievous hurt.
5. Courts should not overlook the act itself. In considering the act not only the result but knowledge or intention is to be considered. If the act was such that nothing more than simple hurt could reasonably be thought likely to ensue from it, then, although grievous hurt may unexpectedly have ensued, it would be Court's duty to convict the offender of simple hurt, judging that grievous hurt was not in his contemplation; for, according to Section 322 of the Indian Penal Code, a person can be convicted of grievous hurt only when the result and intention correspond or when grievous hurt had been suffered from an act which was intended to cause grievous hurt, though it may be of a different kind. In the instant case, from the act of the petitioner-accused intention of causing grievous hurt cannot be inferred. In view of this, the conviction of the petitioner-accused for the offence under Section 333 of the Indian Penal Code requires to be set aside.
It should be noted that the petitioner-accused is sentenced to undergo rigorous imprisonment for three months. As this is a conviction by the Sessions Court, there is no right to appeal in view of Section 376(b) of the Code of Criminal Procedure, 1973, and therefore, this revision petition is filed.
6. Now comes the question of sentence. I am told that the petitioner-accused 0 J has paid up the fine of Rs. 200/- and he has also undergone imprisonment for three days after he was arrested and before he was released on bail. This much sentence would be quite sufficient for the offence committed by the petitioner accused, because sometimes the circumstances create a wrath in the mind of a passenger when the conductors of a public vehicle adamantly refuse to give change or proper change. The dispute about the spoiled or soiled note is not challenged. The fact that right upto the last moment the note was not changed is also not challenged. However, I would also observe that that would not give a right to the petitioner to take out his shoe and give a blow with it and cause injury. On considering the facts of the case, imprisonment of sentence already undergone by the petitioner-accused would be sufficiently deterrent.
7. In the result, therefore, the revision petition is partly allowed. The order of conviction for the offence under Section 333 of the Indian Penal Code and sentence of rigorous imprisonment for three months passed against the petitioner accused by the learned Sessions Judge is set aside, and instead the petitioner-accused is convicted for the offence punishable under Section 332 of the Indian Penal Code and sentenced to suffer imprisonment for the period already undergone, and a fine of Rs. 200/-, which he has already paid. Rule modified to that extent.