Bombay High Court
Nilkanth S/O Gulabrao Bagde (In ... vs State Of Mah. Thr. P.S. Saoner on 6 September, 2017
Bench: V.M. Deshpande
revn.170.09 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL REVISION APPLICATION NO. 170 OF 2009
Nilknath S/o Gulabrao Bagde,
Aged about 42 years,Occ-Service,
R/o Waghoda,Tahsil-Saoner,
District-Nagpur.
Present Service Add: Mukhar Post Khadsingi,
Tahsil-Chimur,District-Chandrapur
WCL Mining Mukhar Project. ..... APPLICANT
...V E R S U S...
State of Maharashtra,
Through Police Station Officer,
Police Station Saoner,
District-Nagpur. ... RESPONDENT
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Smt.Kalyani Deshpande,A.P.P. for State-non-applicant.
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CORAM:- V. M. DESHPANDE, J.
DATED :- SEPTEMBER 6,2017
ORAL JUDGMENT
The learned counsel for the applicant chose not to
remain present when the matter was called in the morning session
and also in the afternoon session. Therefore, this Court proceeded
with the final hearing of the case with the assistance of learned
A.P.P.
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2] The applicant was chargesheeted by P.S.O.P.S.Saoner
for the offence punishable under Sections 324,448 and 506 of the
Indian Penal Code. The case was tried in the Court learned
Judicial Magistrate First Class,Saoner vide R.C.C.No.265/1998.
When the charge was framed the applicant abjured the guilt and
claimed to be tried. The prosecution examined six witnesses to
prove the guilt of the applicant. Vide judgment and order of
26/10/2007, the learned Judicial Magistrate First Class,Saoner
acquitted the applicant for the offence punishable under Section
506 of the Indian Penal Code, however convicted the applicant for
the offence punishable under Sections 324 and 448 of the Indian
Penal Code. On his conviction for the offence punishable under
Section 324 of the Indian Penal Code the applicant was sentenced
to suffer R.I. for one year and to pay fine of Rs. 1000/- and in
default of payment of fine to suffer further R.I. for one month. In
so far as conviction under Section 448 of the Indian Penal Code is
concerned he was sentenced to suffer S.I. for three months and to
pay fine of Rs. 500/- and in default of payment of fine amount to
suffer further S.I. for 15 days.
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3] Appeal was carried by the applicant before learned
Additional Sessions Judge-9,Nagpur vide Criminal Appeal
No.272/2007. The said appeal was dismissed by the learned
Additional Sessions Judge-9,Nagpur and confirmed the judgment
and order of conviction. Hence, this revision.
4] This Court was pleased to admit this revision on
24/9/2009 and also released the applicant on bail on the said
date.
5] According to prosecution, Nokchand Baliram
Dongre(PW1) hails from village Waghoda, Tahsil Saoner, District-
Nagpur. On 2/7/1998 at about 11.30 a.m. when he was present in
his house the present applicant came and started abusing his wife
and his son Vishnupal (PW6) asked his mother to go inside.
Thereafter, as per the prosecution case the applicant went towards
his house ,brought a sword and made assault resulting into
injuries to left wrist of complainant and also finger of Vishnu.
6] The record and proceedings were not called at the time
of admission of this revision, therefore at the time of deciding the
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present revision the Court is at loss to peruse the record and
proceedings.
7] The judgments impugned show that there is
inconsistency in between evidence of complainant (PW1), his wife
Tuljabai(PW2) and Vishnupal (PW6) on material aspect.
However, those are brushed aside by the learned Court below by
stating the reason that those are most natural. What is important
to note is the findings recorded by both the learned Courts below
that for recording conviction under Section 324 of the Indian
Penal Code the prosecution is not obliged to prove the injuries. In
the present case, panch has turned hostile. The investigating
officer is not examined to prove the recovery of weapon. Further,
the doctor is also not examined, therefore the injuries are not at
all proved.
Section 324 of the Indian Penal Code reads as
under:
"324. Voluntarily causing hurt by dangerous
weapons or means.--Whoever, except in the case
provided for by section 334, voluntarily causes hurt
by means of any instrument for shooting, stabbing or
cutting, or any instrument which, used as weapon
of offence, is likely to cause death, or by means of fire
or any heated substance, or by means of any poison
or any corrosive substance, or by means of any
explosive substance or by means of any substance
which it is deleterious to the human body to inhale,
to swallow, or to receive into the blood, or by means
of any animal, shall be punished with imprisonment
of either description for a term which may extend
to three years, or with fine, or with both."
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8] Thus, it is clear that to secure the conviction under
Section 324 of the Indian Penal Code the prosecution is obliged to
prove that there exists injury on the injured and that injury is
caused by dangerous weapon or other articles as are mentioned in
Section 324 of the Indian Penal Code. In that view of the matter,
non-examination of doctor in my view is fatal to the prosecution
since the injuries are not at all proved. Even there is no consistent
evidence that applicant has entered into the house of the
complainant. Therefore, there is a mistake committed by both the
learned Courts below which needs to be corrected at the hands of
this Court under revision jurisdiction. Consequently, I pass the
following order.
ORDER
I) The revision is allowed.
II) The judgment and order of conviction passed by
learned Judicial Magistrate First Class,Saoner in
R.C.C.No.265/1998,dated 26/10/2007 and
confirmed by learned Additional Sessions Judge-9,
Nagpur in Criminal Appeal No.272/2007 is hereby
quashed and set aside.
III) The applicant is acquitted of the offence punishable
under Sections 324 and 448 of the Indian Penal
Code.
IV) The bail bonds of applicant stand cancelled.
V) The rule is made absolute.
JUDGE
Kitey
