(Prayer: Case (disposed of on 14-7-1943) referred for the orders of the High Court under S. 438 of the Criminal Procedure Code by the District Magistrate of Malabar at Calicut in his letter Ref. D-1, 3990 M/43-1, dated 2-4-1943.)

This is a reference by the learned District Magistrate of Malabar with regard to the sentence passed on the accused in C.C. No. 13 of 1943 on the file of the Additional First Class Magistrate of Malabar. The accused was convicted for an offence punishable under S. 326, Indian Penal Code and released under S. 526(1) of the Criminal Procedure Code on the accused executing a bond for Rs. 100 with two sureties for a like sum. The accused and P.W. 2 were baling out water to irrigate the fields of one Velani with a swing bucket. The rope broke and the bucket went off and struck against the accused. The accused was irritated and he thereupon took a chandrahasam which was lying nearby and struck the complainant who got a bleeding injury. The complainant cried and others came and prevented the accused from causing further injuries. The injuries inflicted on P.W. 2 resulted in his being in hospital for two months and thus being prevented from attending to his ordinary pursuits. The accused admitted the facts, but stated that he was hit in the face when the bucket was thrown against him by the complainant. He abused P.W. 2 and there was mutual recrimination. There was struggle between him and others when he took some stick closeby and struck it against the accused. He afterwards realised that it was the weapon M.O.

1. The learned Magistrate was of opinion that thought there was some provocation it was not such as would justify the act of the accused. He therefore found him guilty under S. 326. But as pointed out by the learned District Magistrate, the offence punishable under S. 326 is one punishable with transportation for life or with imprisonment of either description for a period of ten years. The provision of S. 562(1) of the Criminal Procedure Code therefore cannot apply to a conviction for an offence punishable under S. 326. The sentence is therefore illegal and it is set aside.

The accused had real provocation and all that he did was to take the weapon nearest to him and throw it at P.W.

2. It is an act done in annoyance when he received an injury which he thought was due to an act of P.W.

2. In these circumstances a sentence of one months rigorous imprisonment is more than enough and I sentence him accordingly.