Bombay High Court
Khushab Premdas Suryawanshi vs State Of Mah. Thr. Pso Samudrapur ... on 22 November, 2022
Bench: G. A. Sanap
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL REVISION APPLICATION NO.109 OF 2021
Khushab Premdas Suryawanshi
Aged 36 years, Occ: Labour,
R/o Waigaon (Haldya), Tah. Samudrapur,
District Wardha
...APPLICANT
---VERSUS---
State of Maharashtra,
Through its Police Station Officer,
Samudrapur, Tah. Samudrapur,
...NON-APPLICANT
District Wardha.
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Ms P. S. Kosare, Advocate for the applicant.
Shri S.A. Ashirgade, APP for non-applicant/State.
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CORAM : G.A. SANAP, J.
DATE : NOVEMBER 22, 2022.
ORAL JUDGMENT :
1. Rule. Rule is made returnable forthwith with consent of the
parties.
2. In this revision, the applicant challenges the judgment and
order dated 27.10.2021 passed in by the learned Additional Sessions
Judge, Hinganghat, District Wardha, whereby the learned
Additional Sessions Judge dismissed the appeal filed by the
applicant against his conviction and sentence for the offence
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punishable under Section 325 of the Indian Penal Code (for short,
'IPC') awarded by the learned Judicial Magistrate First Class,
Samudrapur, District Wardha. Learned Judicial Magistrate First
Class (JMFC) by the judgment and order dated 13.04.2017
convicted the applicant for offence punishable under Section 325
and sentenced him to undergo simple imprisonment for six months
and to pay fine of ₹10,000/-, in default to undergo further simple
imprisonment for two months.
The prosecution case, in short, is as follow:
3. The incident in question occurred on 02.09.2012 about
08:00 am at village Waigaon (Haldya), Taluka Samudrapur, District
Wardha. Informant, who is witness no.1, was assaulted by the
applicant with stick. The informant sustained the injury to her left
hand. On her examination, it suspected to be a fracture. The
informant reported the matter to the police and accordingly, Crime
No.112/2012 was registered against the applicant. The applicant was
arrested. At his instance, the weapon used in offence was recovered.
The informant was medically examined. She was referred to
Hinganghat Hospital for taking X-ray. After completion of the
investigation, charge-sheet was filed. The charge was framed. The
applicant denied the charge.
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4. The prosecution examined seven witnesses to prove the
charge against the applicant. Learned JMFC on the basis of the
evidence adduced by the prosecution found the applicant guilty of
the offence punishable under Section 325 and accordingly
convicted and sentenced him as above. The learned Additional
Sessions Judge in an appeal filed by the applicant on scrutiny of the
material on record found that the order passed by the learned JMFC
is according to law and dismissed the appeal. The applicant is,
therefore, before this Court in revision.
5. The grounds of challenge to the impugned judgment and
order have been set out in the application.
6. I have heard Ms P.S. Kosare, learned advocate for the
applicant and Shri S.A. Ashirgade, learned Additional Public
Prosecutor for non-application/State. Perused the record and
proceedings.
7. Ms P.S. Kosare, learned advocate for the applicant
submitted that in this case the evidence of Medical Officer is not
sufficient to prove that the informant had sustained fracture.
Learned advocate for the applicant therefore submitted that the
conviction of the applicant under Section 325 is not according to
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law. Learned advocate for the applicant took me through the
remaining evidence and pointed out that the said evidence is full of
omissions and inconsistencies and therefore not sufficient to prove
the charge against the applicant even for lesser offence. She further
submitted that the informant and other witnesses have admitted
that there was enmity between them and the applicant. Learned
advocate submitted that the applicant has falsely implicated due to
the enmity. She further submitted that the reasons have not been
recorded for awarding the sentence of six months, which in the facts
and circumstances would be disproportionate to the gravity of the
crime.
8. Learned advocate for the applicant further submitted that
now the dispute between the applicant and the informant has been
amicably settled.
9. The informant is present in the Court. On enquiry, the
informant has stated that the applicant is her cousin brother and as
on today she has no grievance against him.
10. Learned advocate on the basis of above submitted that
lenient view is required to be taken in the matter, if the Court is not
inclined to accept her submissions.
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11. Learned Additional Public Prosecutor submitted that
cogent and concrete reasons have been recorded by the Courts
below to convict and sentence the applicant. He submitted that
there are no reasons to discard and disbelieve the oral evidence of
the informant and other witnesses. He further submitted that the
offence punishable under Section 325 is non-compoundable and
therefore even if the informant has stated that they have arrived at a
settlement, it would be of no help. Learned Additional Public
Prosecutor on going through the record fairly conceded that X-ray
report and the opinion of the Radiologist are not available. Learned
Additional Public Prosecutor therefore submitted even if it is held
that in absence of this evidence, the offence under Section 325 is
not made out then considering the weapon used in the commission
of the crime, the applicant would be liable to be punished under
Section 324 of the IPC.
12. In order to satisfy myself about the legality and the
correctness of the impugned judgment and order, I have gone
through the evidence adduced before the learned JMFC. Medical
officer was examined as PW7. Perusal of the evidence of the
Medical Officer would show that on examination he found two
injuries on the person of the informant. The Medical Officer in his
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evidence has categorically stated that the injuries were simple in
nature. He has stated that the informant was referred to General
Hospital, Wardha/ Sub-District Hospital Hinganghat for the
purpose of taking X-ray of left hand wrist. He has categorically
deposed that his final opinion was kept reserved till receipt of the X-
ray report. It is therefore seen that there is no final report or opinion
given by the Medical Officer with regard to the nature of injury. In
the facts and circumstances and particularly in the backdrop of the
evidence of the Medical Officer, it is not possible to accept the case
of the prosecution that the informant had sustained fracture. In view
of this position, the injury sustained by the informant could not be
said to be grievous hurt as defined under Section 320 of the IPC.
The evidence adduced on record, therefore, falls short to accept the
case of the prosecution that the informant had sustained grievous
hurt as defined under Section 320.
13. In view of this position, the conviction and sentence
awarded under Section 325 is not according to law. The Courts
below have not taken this fact into consideration. In my view, this
illegality is required to be rectified depending upon the available
evidence.
14. Next important question is, whether the oral evidence
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coupled with the medical evidence is sufficient to prove the lesser
offence punishable under Section 324. On going through the record
and particularly evidence of the informant and the evidence of the
Medical Officer, I am of the opinion that lesser offence punishable
under Section 324 is made out on the basis of the evidence.
15. PW1 informant has stated that when she was returning
from flour-mill, the applicant assaulted her with a stick. She has
deposed that she had sustained the injury to her left hand. The
report of the incident was lodged. The Medical Officer in his
evidence has stated that on examination of the informant he found
two injuries on the left hand. The informant in the Court identified
the stick used by the applicant for assault. She was subjected to
cross-examination. Perusal of her cross-examination would show
that as far as the incident of the assault with the stick by the
applicant is concerned, the evidence has not at all been shaken.
Therefore, there is no reason to discard and disbelieve the evidence
of the informant on the point of causing hurt to her by the applicant
with a stick, which by any means has to be termed as a dangerous
weapon.
16. The oral evidence of the informant has been corroborated
by PW2 and PW3. According to PW2 and PW3, they saw incident
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of the assault with the stick by the applicant on the informant. In
my view, on the basis of this evidence the prosecution has
successfully proved the incident and the offence punishable under
Section 324.
17. The stick was seized during the course of the
investigation. Stick was sent to the Medical Officer for examination.
He has opined that injuries sustained by the informant could be
caused by the stick. The description of the stick has been mentioned
in the Panchanama as well as in the query report submitted by the
Medical Officer. In the facts and circumstances, I am of the view
that though the conviction and sentence under Section 325 is not
sustainable, the lesser offence made out on the basis of the evidence
would be under Section 324 of the IPC.
18. As stated above, the applicant was sentenced to suffer
simple imprisonment for six months and to pay a fine of ₹10,000/-.
Learned advocate pointed out that the applicant has already
deposited fine amount. There is no grievance about this fact at the
behest of the prosecution. In my view, while awarding the sentence
and modifying the substantive sentence, the statement made before
this Court by the informant would be required to be taken into
consideration. It is to be noted that in the facts and circumstance for
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the offence punishable under Section 324 the substantive sentence
of six months would be disproportionate. In my view, the interest of
justice would be met if the sentence of the imprisonment already
undergone by the applicant during the course of the trial as well as
after the decision of the appeal is awarded. Therefore, substantive
sentence needs to be modified. The sentence of fine needs to be
maintained. Hence, following order:
ORDER
(i) The Criminal Revision Application is partly allowed.
(ii) The order of conviction and sentence under Section 325
of the IPC is set aside.
(iii) The applicant is convicted for the lesser offence under
Section 324 of the IPC and sentenced to suffer imprisonment,
which he has already undergone (i.e. 2 ½ months) during the
trial as well as after his arrest on the date of the judgment by
the Sessions Court till he was released on bail pursuant to the
order of this Court.
(iv) The Criminal Revision Application stands disposed of in
above terms.
JUDGE
Wagh
