“6. A stone, as such, cannot be said to be a weapon of offence, likely to cause death. To decide whether a particular stone brought before the Court as material object used for infliction of injury, is a weapon of offence likely to cause death, there must be some evidence regarding the nature of the said stone, or the size of the said stone, and also regarding the way in which the stone was used in the process of assault for infliction of injury. It is pertinent to note that the material object involved in this case is not before the court. In Mathai V. State of Kerala [(2005) 3 SCC 260] involving alleged infliction of grievous hurt by hitting with a stone, the Hon'ble Supreme Court held that the Court will have to decide on the facts and circumstances of each case, having regard to the weapon's size, sharpness etc. as to whether the given weapon is deadly weapon or not. In the said case the Hon'ble Supreme Court altered the conviction under Section 326 IPC, to one under Section 325 IPC. This decision of the Hon'ble Supreme Court can be followed in this case. When the prosecution allegation is that grievous injuries were inflicted by the revision petitioner on the body of the 2nd respondent with a stone, the prosecution does not have any explanation, as to what happened to the stone, or why it is not produced in court as a material object. In a case like this the prosecution must produce the weapon before the Court, it must be shown to the medical witness, and the prosecution must elicit materials from the medical witness regarding the nature of the stone, its size and also regarding the possibility of death being caused, if the said stone is used as a weapon of offence, or the possibility of death being caused due to the grievous injuries inflicted with the said stone. But in this case, the learned Assistant Public Prosecutor who conducted prosecution in the trial court has not elicited any such necessary material regarding the alleged weapon, from the medical witness examined in the trial court. In the absence of such necessary materials for deciding whether the alleged weapon of offence is likely to cause death, and in the absence of such a weapon before the Court as material object, we find that this case cannot be taken as a case of infliction of grievous hurt by means of any weapon of offence. Accordingly, we find that the conviction in this case under Section 326 IPC is not sustainable under the law.
