Criminal Revision Application No.20 of 2000

30th July, 2004

Petitioner Counsel: Mr. S. N. MARDIKAR
Respondent Counsel: Mrs. S. S. WANDILE

Cases Cited:
Jagannath Narayan Nikam Vs. State of Maharashtra, 1994 Mh.L.J. 1857 [Para 5]

JUDGMENT

JUDGMENT :- This criminal revision application is filed by the applicants challenging the judgment and order dated 31-1-2000, passed in Criminal Appeal No.4/1997 by the Additional Sessions Judge, Gondia, dismissing the appeal filed by the present applicants against the judgment and order dated 3-3-1997 passed by the Judicial Magistrate First Class, Amgaon, in Regular Criminal Case No.239/1993. The applicants were convicted by the Judicial Magistrate First Class, Amgaon, for an offence under sections 324 read with 34 of Indian Penal Code and are sentenced to suffer R.I. for six months and to pay a fine of Rs.300/- each in default to suffer R.I. for one months each. The applicants were charged for the offence under Sections 325 read with 34 of IPC. Criminal Appeal No.4/97 preferred by the applicants was dismissed by the Additional Sessions Judge, Gondia by his judgment and order dated 31-1-2000 maintaining conviction and sentence passed by Judicial Magistrate First Class, Amgaon.

2. I have heard Mr. Mardikar, learned counsel appearing for the applicants and Mrs. Wandile, learned Additional Public Prosecutor for the respondent.

3. Mr. Mardikar, learned counsel appearing for the applicants, at the outset, submitted that having regard to the evidence brought on record by the prosecution, no offence under sections 324 read with 34 of IPC can be said to have been proved against the applicants. Having regard to the limited scope of interference by this Court in exercise of revisional jurisdiction against judgment and order of conviction, Mr. Mardikar did not seriously press that the applicants are entitled for acquittal, however, it is the submission of Mr. Mardikar that having regard to the evidence brought on record, at the most, an offence under Section 323 read with 34 of IPC can be said to have been proved against the applicants. Mr. Mardikar submitted that even if the entire evidence of the prosecution is accepted, ingredients of Section 324 of IPC have not been proved so as to warrant conviction under sections 324 read with 34 of IPC.

4. Section 324 of Indian Penal Code reads as under :-

"Section 324 : Voluntarily causing grievous hurt by dangerous weapons or means :

Whoever, except in the case provided for by section 324, voluntarily causes hurt by means of any instrument for shotting, stabbing or cutting, or any instrument which, used as a 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."

5. According to Mr. Mardikar, in order to attract Section 324 of IPC, it is necessary that hurt must have been caused by means of any instrument for shooting, stabbing or cutting or any instrument which, used as a 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 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. According to Mr. Mardikar, it is the case of prosecution that injuries which were caused by the present applicants to one Mr. Sakharam Choudhari were caused by means of a stick. Mr. Mardikar points out that in the course of trial, the prosecution has not produced stick with which the applicants have assaulted said Sakharam Choudhari. According to Mr. Mardikar, in the absence of weapon which according to the prosecution was used in the commission of offence before the Trial Court, it is not possible to come to the conclusion whether the weapon used was an instrument for shooting, stabbing or cutting or any instrument, which used as a weapon of offence, is likely to cause death. In view of this situation, according to Mardikar, no offence under sections 324 read with 34 of IPC against the applicants can be said to have been proved beyond reasonable doubt. Mr. Mardikar in support of his submission has relied upon the judgment of this Court reported in 1994 Mh.L.J. 1857, Jagannath Narayan Nikam and Ors. Vs. State of Maharashtra. This was a case which was dealing with conviction under section 326 read with 34 of IPC. According to Mr. Mardikar, although the injured suffered 14 injuries as deposed by P.W.5 Dr. Ashok M. Mowadkar, out of which, there is one lacerated wound on scale left temporal region and there are five abrasions and seven bruises and one contusion with linear abrasion. No doubt, P.W.5 Dr. Ashok Mowadkar has deposed that in his opinion there was a fracture of lower end of the radious bone, however, the learned Judicial Magistrate First Class, held that the prosecution has not proved that the injuries suffered to Sakharam Choudhari were grievous injuries and accordingly, acquitted the applicants of the offence under Sections 325 read with 34 of IPC. Mr. Mardikar further submits that the alleged offence took place on 1-9-1979 and, according to Mr. Mardikar, Sakharam Choudhari, who was injured in the incident has expired. He further submits that the applicants have already undergone sentence of 15 days imprisonment, after they were convicted by the Additional Sessions Judge, Gondia and they have already paid fine amount of Rs.300/- each which was the fine imposed on the applicants. According to Mr. Mardikar, considering these facts, it will not be just and proper, at this stage to send the applicants back to jail and the fine imposed on each of the applicants is sufficient punishment having regard to the facts and circumstances of the case.

6. Per contra, Mrs. Wandile concedes that having regard to the fact that the learned Judicial Magistrate First Class has held that prosecution has not proved grievous hurt, she is not in a position to rely upon the fact that the fracture was caused and therefore, applicants must be convicted for grievous hurt. However, she submits that having regard to number of injuries suffered, it is clear that the offence was committed in a brutal manner and, therefore, sentence of 15 days to the applicants, which they have already undergone and payment of fine of Rs.300/- each would not be sufficient, having regard to the facts and circumstances of the case and having regard to the evidence led by the prosecution.

7. I have considered the submissions made by the learned counsels appearing for the respective parties. Since the learned Judicial Magistrate First Class has acquitted the applicants for offence under sections 325 read with 34 of IPC on the ground that the prosecution has not been able to prove that Sakharam Choudhari suffered grievous hurt and prosecution having not challenged the acquittal under sections 325 read with 34 of IPC, the issue whether the applicants can be convicted for grievous hurt has become final. The only question which remains before this Court whether an offence under section 324 of Indian Penal Code, as held by the learned Judicial Magistrate First Class, and confirmed by the Appellate Court, is legal and justified. In order to attract Section 324 of IPC, it is necessary that the hurt must have been caused by instrument for shooting, stabbing or cutting or any instrument which, used as weapon of offence, is likely to cause death. The case of the prosecution is that the injuries were caused by means of a stick. The prosecution has not produced before the Trial Court the weapon used in the commission of offence, since the same was not attached in the course of investigation. There is no other evidence led by the prosecution before the learned Judicial Magistrate First Class to enable this Court to come to a conclusion whether the weapon used by the applicants was a weapon which can be used for shooting, stabbing, cutting or whether it was an instrument which used as a weapon of offence, is likely to cause death. In the absence of such material on record, in my opinion, the conviction of the applicants for offence under sections 324 read with 34 of IPC cannot be sustained. I find considerable force in the submission of Mr. Mardikar that even accepting the entire evidence of prosecution as correct, the prosecution has not been able to prove the offence under sections 324 read with 34 of IPC against the applicants. Accordingly, the conviction of the applicants is converted to Sections 323 read with 34 of IPC from Sections 324 read with 34 of IPC.

8. The next question, which arises for my consideration is what should be the appropriate sentence to be imposed on the applicants for offence under sections 323 read with 34 of IPC. The incident in question took place on 1-9-1979, i.e. almost 25 years back. According to Mr. Mardikar, applicants are now in the age group of 50 to 60 and, as such, it would not be proper, at this stage to send them in jail to undergo further imprisonment. The learned Judicial Magistrate First Class had imposed sentence of six months R.I. each on the applicants, which was confirmed by the Appellate Court for offence under Sections 324 read with 34 of IPC.

9. The submission made by Mr. Mardikar that in the present case injured - Sakharam Choudhari has already expired has not been controverted by the learned Additional Public Prosecutor Mrs. Wandile. In the facts and circumstances of the present case, I was inclined to award substantial compensation in favour of the injured in terms of Section 357 of Cr.P.C. However, since the injured is dead, it is not possible for this Court to award compensation under section 357 of Cr.P.C. I find considerable force in the submission of Mr. Mardikar that having regard to the fact that the incident has taken place almost 25 years back and the applicants are comparatively aged, no purpose would be served in sending them back to the jail, at this stage. I find that having regard to the facts and circumstances of the case and having regard to the fact that the proceedings against the applicants have been pending for almost 25 years, it would not be proper to send the applicants back in jail now to undergo further sentence of imprisonment. However, according to me, it is just and proper that the fine of Rs.300/- already imposed on each of the applicants be increased and accordingly, the fine amount of Rs.300/- imposed on each of the applicants in increased to Rs.1,000/- each, which is maximum permissible fine under section 323 of I.P.C.

10. Accordingly, the revision application is partly allowed. The applicants are acquitted of the offence punishable under Sections 324 read with 34 of IPC, however, they are convicted of the offence punishable under sections 323 read with 34 of IPC and they are sentenced to undergo 15 days simple imprisonment which is the period, already undergone by them and to pay fine of Rs.1,000/- and in default to suffer 15 days simple imprisoment. In the event the applicants have paid the fine amount of Rs.300/- imposed on each of applicants, then they shall pay balance amount i.e. Rs.700/- each within a period of two weeks from today. The fine amount shall be paid in the Court of Judicial Magistrate First Class, Amgaon within a period of two weeks from today, failing which, learned Judicial Magistrate First Class, Amgaon shall take coercive steps to comply with the judgment and order of this Court. A copy of this judgment and order shall be sent to the Judicial Magistrate First Class, Amgaon, for necessary compliance.

Revision partly allowed.