Ravi S/O Baduji Bhonde vs State Of Maharashtra ...
2009 Latest Caselaw 40 Bom

                                      1

          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
                           
     ---------------------------------------------------------------------------------
     Mr. V. D. Muley, Advocate for applicant.
     Ms R. A. Wasnik, A.P.P. for non applicant.
                          
     ---------------------------------------------------------------------------------

     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.

2. 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

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

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

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,

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,

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