Bombay High Court
Manohar S/O. Laxman Rathod And ... vs State Of Mah. Thr. Pso Digras, ... on 16 June, 2022
Bench: Avinash G. Gharote
(1) 37.revn.129.2022
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL REVISION APPLICATION NO.129 OF 2022
Manohar s/o Laxman Rathod and others
Vs.
State of Maharashtra, Through P.S.O. Digras, Dist. Yavatmal
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Mr. D. M. Dixit, Advocate for applicants.
Mrs. M. H. Deshmukh, APP for non-applicant/State.
CORAM : AVINASH G. GHAROTE, J.
DATE : 16/06/2022
1. Heard Mr. Dixit, learned counsel for the
applicants and Mrs. Deshmukh, APP for
non-applicant/State.
2. Mr. Dixit, learned counsel for the applicant,
questions judgment by the learned trial Court dated
15.7.2017, whereby the applicants having been convicted
for the offence under Section 324 read with Section 34 of
the Indian Penal Code and sentenced to suffer rigorous
imprisonment of six months and each of them to pay fine
of Rs.1,000/-, in default one month rigorous
imprisonment and the judgment dated 4.5.2022 passed
by the learned Appellant Court insofar as the aforesaid
conviction of the applicants and the operative part
therein except clause (E) which grants the benefit of
probation to the applicant no.2 Ranjana.
(2) 37.revn.129.2022
3. Mr. Dixit, learned counsel for the applicants
submits that there are no eye witnesses to the alleged
incident dated 10.4.2013, on which at about 9 a.m. when
the informant had gone to this agriculture field the
applicant no.1 Manohar is said to have assaulted him by
a wooden stick, the applicant no.3 Dilip Ade had
assaulted him by a plastic pipe and the applicant no.2
Ranjana has assaulted by fists and blows. He further
submits that PW 1 and PW 5 have turned hostile and the
conviction based upon the testimony of PW 2 Sunil, the
complainant and PW 3 and PW 4 cannot be sustained
and both the impugned judgments are therefore required
to be quashed and set aside. He further submits that the
complaint does not indicate any assault by a stick, in
spite of which, a stick has been seized and therefore,
consideration of the same by the Courts below for
holding that there was an assault by the applicant no.1
Manohar by way of stick is clearly not justified. He
further submits that to attract Section 324 of the Indian
Penal Code there has to be bleeding injury and since
there was no such bleeding injury, the imposing of
Section 324 and the consequent conviction and sentence
have not justified.
4. Mrs. Deshmukh, learned APP for the
non-applicant/State supports the impugned judgment
and submits that the testimony of PW 2, complainant
coupled with the evidence of PW 7 and 8, who certify the
(3) 37.revn.129.2022
injury sustained by PW 2, is sufficient to bring home the
guilt to the applicants and therefore the impugned
judgments ought not to be interfered with.
5. Insofar as the contention that Section 324 of
the Indian Penal Code cannot be invoked unless there is a
bleeding injury, in my view, the said contention is not
correctly founded. A reading of language of Section 324
indicates that what is necessary is the causing of hurt by
any instrument which is used as a weapon of offence, is
likely to cause death. The word 'hurt' is defined in
Section 319 of the Indian Penal Code and indicates
causing of bodily pain, disease or infirmity to any person.
Thus, a combined reading of Section 324 coupled with
Section 319 of the Indian Penal Code would indicate that
causing of a bleeding injury is not a sine quo non for the
purpose of invoking and applying the provisions of
Section 324 of the Indian Penal Code and therefore, the
contention advanced in this regard, does not merit any
consideration.
6. Insofar as the contention that even on
merits, the offence has not been proved, a perusal of the
evidence of PW 2 would indicate that he has deposed in
consonance with the FIR Exh.32. Though it is contended
that there is no mention of an assault by way of stick in
the FIR and it is a material improvement in the evidence
of PW 2 (Sunil) however, perusal of the printed FIR
(4) 37.revn.129.2022
Exh.32 (pg.39) would indicate that, it specifically
mentions that on 10.4.2013 at about 9 a.m. the applicant
no.1 Manohar had assaulted the complainant/PW 2 -
Sunil on his leg by a wooden stick, which is what has
been seized from the field. The contention therefore that
the plea is absent in the FIR is incorrect. That apart, the
evidence of PW 2 - Sunil indicates that he has deposed in
consonance with what has been stated in the FIR and the
report of the Medial Officer at Exh.67 who examined PW
2 on 10.4.2013 at about 10.15 a.m. hardly an hour and
15 minutes after the incident, indicates injury suffered by
the PW 2. This medical report Exh.67 is proved by
Medical Officer PW 7 Dr. Santosh Jadhav (Exh.66
pg.95). Though in the cross-examination, he has stated
that injury no.1 may be an old injury, however, the age of
the injury has not been brought out. The suggestion that
injuries 2 to 5 in Exh.67 were possible by fall on ground
with some force, has been accepted by PW 7, however, a
mere suggestion, without anything else would not detract
from the evidence of PW 2 and 7 read together. It is
thus apparent, that there was an assault upon the PW 2
in which he had suffered injuries which is established on
record by the evidence PW 2 and PW 7 in conjunction of
the report at Exh.67. The seizure of the pipe from the
field has been proved by PW 4 who is the panch witness
to Exh.41 and also to the spot panchnama at Exh.42.
Nothing substantial has been brought out in his
cross-examination. It is however material to note that
(5) 37.revn.129.2022
there are two basic discrepancies one regarding the
statement of PW 2, in the complaint which indicates that
the applicant no.3 had assaulted him by rubber pipe,
whereas what has been seized under Exh.41 is a plastic
pipe, the second being that the applicant no.1 Manohar is
claimed to have assaulted the PW 2 by way of a wooden
stick which also is claimed to have seized under Exh.41,
however, PW 4 in his examination-in-chief states that the
stick was already seized by the police from the field and
the panchnama appears to have been prepared in the
police station. In his cross-examination, he says that the
police authorities had prepared the panchnama for
seizure of stick at about 12.30 to 1.00 p.m. and he along
with the police party had been to field in question at
about 5.30 to 6.00 p.m. In view of these two
discrepancies, the manner & seizure of the stick raises a
question mark, considering which, Admit.
7. Call R & P.
8. Mrs. Deshmukh, learned APP waives notice for the
non-applicant /State. Considering that the matter is very
short one and can be decided upon receipt of the R & P,
list the matter on 4.7.2022 at the end of the board, by
which time, the Registry shall ensure the R & P is called.
JUDGE Digitally signed byANANT R
SARKATE
Sarkate Signing Date:17.06.2022 15:36
