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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH NAGPUR
Criminal Revision Application No. 154/2004
Ravi s/o Baduji Bhonde,
aged 40 years, Occ. Carpenter,
r/o Shahapur, P.S. Jawaharnagar,
Tq. Dist. Bhandara .. APPLICANT
.. Versus ..
State of Maharashtra, thr.
P.S.O. Jawaharnagar, Tq. Dist.
Bhandara .. NON APPLICANT
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Mr. V. D. Muley, Advocate for applicant.
Ms R. A. Wasnik, A.P.P. for non applicant.
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CORAM:- S. S. SHINDE, J.
Date of Reserving the Judgment:- 02.12.2009
Date of Pronouncing the Judgment:- 08.12.2009
JUDGMENT
1. This revision is filed challenging judgment and order dated 02.09.2004 passed by 2nd Additional Sessions Judge, Bhandara in Criminal Appeal No. 13/2003, arising out of judgment and order passed in Regular Criminal Case No. 34/1999 decided on 05.04.2003 by Judicial Magistrate First Class, Bhandara. Facts of the case, in brief, are as under.
::: Downloaded on - 02/08/2016 16:57:18 ::: 22. Applicant is prosecuted under Section 324 and 326 of the Indian Penal Code for causing grievous hurt by dangerous weapon to the complainant.
The prosecution in support of the case cited witnesses viz. complainant-Hariram Bhonde, Ganesh Bhonde, Wachhalabai Bhonde, Maniram Bhonde, Mandabai and Sugrathbai Shriram Bhonde as eye witnesses. However, examined only Hariram, Ganesh, Wachhalabai and Maniram. Trial court convicted the applicant under section 326 of the Indian Penal Code and sentenced him to suffer Rigorous Imprisonment for one year and to pay a fine of Rs. 1000/-. The appellate Court confirmed the said finding, therefore, this revision is filed by the applicant.
3. Learned counsel for the applicant submitted that Spade is not a dangerous weapon nor injury caused by spade is of grievous nature falling under Section 326 of the Indian Penal Code. It is further submitted that that independent ocular witness namely Mandabai and Sugrathabai are not examined even though cited as ::: Downloaded on - 02/08/2016 16:57:18 ::: 3 witnesses in the charge-sheet. Also, non examination of the Investigating Officer is a fatal blow to the prosecution.
The evidence of prosecution is full of contradictions and omissions. It is further submitted that the complainant himself admitted that he has not seen the accused assaulting. It is further submitted that the prosecution witness nos. 2, 3 and 4 are closely related to complainant.
It is further submitted that independent witnesses are not examined.
The Doctor's certificate does not disclose names of injuries. The weapon, which was used, cannot be called as a dangerous weapon. There is no grievous hurt as a result of assault by the applicant. Learned counsel further submitted that the at the most, case of the applicant would fall under Section 323 of the Indian Penal Code. Therefore, learned counsel submitted that impugned judgment and order deserves to be set aside.
4. On the other hand, learned A.P.P. invited my attention to injuries sustained by victim and submitted that the injury is grievous in nature. She has invited my attention to the statement of eye witnesses to the ::: Downloaded on - 02/08/2016 16:57:18 ::: 4 incident and, therefore, submitted that the evidence of complainant is corroborated by evidence of eye witnesses. To that effect, Courts below have concurrently held against the applicant after appreciation of evidence and, therefore, this Court may not entertain this revision.
5. I have heard learned counsel for the applicant and learned A.P.P. for State at length. I have also perused judgment and order passed by Courts below. In para 5 of the judgment, learned Magistrate has discussed the evidence of PW1 Hariram. It is recorded that the accused is brother of the complainant by relation. His field is adjoining to the field of the complainant. There is categorical statement of the complainant that while he was supplying water to the field by opening the bandhis, the accused rushed there and assaulted him with spade on his shoulder. He was taken to hospital and was examined and treated by the Medical Officer. Therefore, there is no substance in the contention of the learned counsel for the applicant that the complainant has not seen the accused. The complainant has stated that ::: Downloaded on - 02/08/2016 16:57:18 ::: 5 accused rushed towards him and assaulted him with spade on his head. That apart, there is evidence of PW3 Wachhalabai supporting the prosecution story and testimony of PW1 Hiralal, complainant. PW3 Wachhalabai has deposed that that while the complainant Hariram was opening bandhis for letting the water away, accused assaulted him with spade on the head of the complainant and, therefore, complainant fell down.
6. The trial Court in para 7 has held that the complainant suffered fracture of right scapula in addition to other injuries. As given in Section 320 of the Indian Penal Code, fracture of bone is designated as grievous hurt. Therefore, both the Courts have held that the complainant suffered grievous hurt. The Medical Officer issued medical certificate at Exh.-24. In her opinion, the injuries are possible due to assault with a spade and accordingly she has issued the Medical Certificate.
PW7 Manohar Pashine has deposed that on 03.08.1999, he took the X-rays of right shoulder and lumber spine of the complainant. There was fracture of right Scapula. He, ::: Downloaded on - 02/08/2016 16:57:18 ::: 6 therefore, issued Medical Certificate Exh.-27. Therefore, so far as injury no.1. is concerned, both the Courts have held that the said injuries are grievous in nature.
Therefore, the submission of learned counsel for the applicant, so far as nature of the injury is concerned, the same is required to be rejected.
7. The fact that the accused assaulted the complainant by means of spade on head and back shows that the accused had sufficient knowledge that assault by spade might result in grievous injury to the complainant.
Therefore, both the Courts have held that the circumstance that the accused voluntarily caused grievous hurt to the complainant is proved beyond doubt.
8. The next point, which is raised by learned counsel appearing for the applicant that the weapon, which is used does not find place in language of Section 326 of the Indian Penal Code. On careful perusal of the language of Section 326 of the Indian Penal Code, it is to be stated that the spade can be used for cutting and, ::: Downloaded on - 02/08/2016 16:57:18 ::: 7 therefore, there is no force in the arguments of learned counsel for the applicant that the spade is not a dangerous weapon.
9. In the light of the above discussion and for the reasons stated supra, the revision fails. The same is, therefore, dismissed. Rule discharged. Interim relief if any stands vacated.
JUDGE kahale ::: Downloaded on - 02/08/2016 16:57:18 :::