Full Judgment Text
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY:
NAGPUR BENCH: NAGPUR
CRIMINAL REVISION APPLICATION NO.129 OF 2004
APPLICANT:
Bhupsingh @ Bablu s/o Kisanlal Baghele, aged 28
years, occupation : Cultivator, r/o Lodhitola, P.S.
Dawaniwada, tahsil and district : Gondia.
VERSUS
RESPONDENT:
State of Maharashtra, through P.S. Dawaniwada,
district : Gondia.
000
Shri D. S. Shrimali, Advocate for the applicant
Shri Ahirkar, A. P. P. for the respondent
000
CORAM: S. R. DONGAONKAR, J.
DATE : 27.9.2006
JUDGEMENT
Heard counsel for the parties.
1] The applicant in the present case, is taking
exception to the judgment and order passed by the learned
Additional Sessions Judge, Gondia in Criminal Appeal no.
16/2001, by which he confirmed the judgment and order of
sentence passed by the Judicial Magistrate First Class,
Tirora, in Regular Criminal Case No.28/1998 holding the
applicant/accused guilty for the offence punishable under
section 324 of the Indian Penal Code, while acquitting the
other two co-accused under section 397 and 401 of the
Criminal Procedure Code.
2] The facts necessary for the decision of this
revision petition may be stated thus. The
applicant/accused was proceeded in Regular Criminal Case
No.28/1998 before the Judicial Magistrate First Class,
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2
Tirora for the offence punishable under section 324 read
with section 34 of Indian Penal Code along with other co-
accused Kundansingh and Puransingh. It was a case of the
prosecution that Roshanlal Lilhare was residing at village
Lodhitola. Along with his father in law on 13.3.1998 at
about 1.00 p.m. Complainant Roshanlal was assaulted by
the accused with bamboo stick on his head whereby he
sustained bleeding injuries. The accused no.3 had also
beaten Roshanlal. It was alleged that one Chanlal Mahule,
Laxman Lilhare and Hiralal had intervened in the quarrel
and thereafter Roshanlal lodged report to Police Station
Dawaniwada. The matter was investigated. During the
investigation, the statement of the relevant witnesses were
recorded, the bamboo stick was seized, injury report in
respect of the complainant was obtained and after due
investigation charge sheet was submitted. During the trial,
the prosecution has examined in all six witnesses and after
recording the evidence and hearing , the learned Trial
Judge found this applicant/accused guilty of the offence
under section 324 of the Indian Penal Code and sentenced
him to suffer simple imprisonment for three months and to
pay fine of Rs.1000/-. He however, acquitted the other two
co-accused.
3] The applicant accused carried this matter to the
appellate court in Criminal Appeal No.16/2001. After
hearing, the appeal was dismissed and the applicant/accused
was directed to surrender the bail vide order of the
appellate court dated 20.7.2004.
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4] This revision petition is directed against that
order.
5] To contend that the order of the lower court is
illegal, improper and unjust at law, the learned counsel
for the applicant has submitted that the complainant if at
all he was attacked, he was attacked by stick and by no
means it can be called a weapon which is mentioned in
section 324 of Indian Penal Code. Further according to him,
in this case, the bamboo stick was not produced before the
court nor it was identified by the Medical Officer or the
complainant. He has further submitted that in this case the
Investigating Officer was not examined, so also on account
of old enmity the complainant had lodged false report. He
has relied on the decision of the Apex Court in (2005) 3
Supreme Court Cases Page 260 [Mathai ..vs.. State of Kerala
and also in 2000(1) Mh.L.J. Page 549 [Dilip Ramaji
Kakde...vs... State of Maharashtra].
6] Therefore, according to the learned counsel, the
conviction & sentence imposed by the learned trial court,
confirmed by the appellate court are bad in law and liable
to be set aside.
7] As against this, learned A. P.P. for the State has
submitted that although the stick was seized, it was not
shown to the witnesses due to oversight and this fact by
itself will not vitiate the trial in view of the fact that
eye witnesses have clearly supported the prosecution case
and therefore, no adverse inference should be drawn for
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non-identification of the stick and further non examination
of the Investigating Officer. According to him, although
there was old enmity, it was only to instigate the accused
to commit the offence and the prosecution has established
its case, and therefore the concurrent findings of the
lower courts should not be interfered with.
8] On perusal of the judgments and orders of the trial
Judge and learned appellate Judge, it would be seen that
both of them have relied on the account of eye witnesses
regarding the incident. On scrutiny of the record, it does
not reveal that in fact the alleged instrument of offence
i.e. Stick was identified by the complainant or eye
witnesses to the incident or the Medical Officer who has
been examined, though it appears to have been seized during
the investigation.
9] The question is whether non-identification of this
stick in the trial would vitiate the conviction. The answer
to this would be in negative in as much as in the present
case the Medical Officer has deposed about the injuries
found on the person of the complainant. He had found four
injuries on the person of Roshanlal when he was examined
immediately after the incident. According to the opinion of
the Doctor the said injuries can be caused due to blow of
bamboo stick. In these circumstances, when there is no
evidence to show that the complainant must have suffered
injuries due to some other weapon or reason, the
prosecution case can not be disbelieved only on that count.
No adverse inference in such circumstances can be drawn.
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5
10] My attention was drawn to the observations of this
court in 2000(1) Mh.L.J.549 [supra] in paragraph 14.
Paragraph 14 reads thus:
14 It is then submitted by Shri Nawab, learned
counsel for the appellant/accused, that though the
evidence of investigating officer P.W.12 Duddalwar as
well as memorandum (Ex.89) and the discovery panchnama
(Ex.90) go to show that one heavy stick admeasuring
46 in length and 6 in circumference was recovered at
the instance of the appellant/accused. However, this
stick was neither produced before the Court nor shown
to the doctor conducting the postmortem examination
for his opinion and, therefore, no any weight can be
attached to such recovery nor it can be said that the
alleged offence was committed with the said stick. For
this Shri Nawab, placed reliance on the decision in
Bhola Nath ..vs.. State, 1976 Cri.L.J.1409. It is true
that the stick alleged to have been seized at the
instance of the appellant/accused has neither been
produced before the Court nor shown to Dr. Ejaz Ahmed
(P.W.10), who conducted the postmortem examination of
the dead body of Murlidhar for his opinion as to
whether the injuries sustained by the deceased or by
P.W.2 Gunaji are possible by the by the said stick.
The prosecution has not offered any explanation for
the non production of the said stick before the court
and, therefore, we are inclined to accept the
submission made by Shri Nawab in this respect, because
the apex Court in the decision in Bhola Nath ..vs..
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6
State 1976 Cri.L.J. 1409 cited supra, held that:
8-The accused is said to have made a disclosure
statement (as per Exh.P.W.10(A) to the Police
Inspector Bhim Singh (P.W.16) that he had kept the
knife near Chhaji Colony Shadara adjacent to a coconut
tree in the field in the buses and that he would get
the same recovered after pointing it out. This
statement is said to have been made in the presence of
Shuja Uddin (P.W.10) and Mohd. Asfeen (P.W.11) which
was seized under a memo (Ex.P.W.1/C). The said knife
was not even sent for serological examination because
it was not said to contain blood stains. It was not
shown to the doctor who conducted the postmortem or
even to any other doctor who was examined. The learned
Additional Sessions Judge rightly did not attach any
weight to the recovery of the said knife in the view
that it did not contain blood stains. Without any
blood stains on it there is no guarantee that the same
was used in this case. It is needless, therefore,to be
detained by the said recovery even though Mr. Frank
Anthony, learned counsel for Bhola Nath, went the
length of contending that a knife had been falsely
planted by the police in this case.
However, in that case the prosecution has not offered any
explanation for non-production of the stick before the
court. In the present case the stick was produced before
the court, though it remained to be identified by the
complainant and the Medical Officer. Therefore, unless
there is substantial reason to disbelieve the prosecution
case, mere fact that the said stick was not identified by
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7
the complainant or the eye witness or the Medical Officer
will not vitiate the prosecution case.
Although the Investigating Officer is not examined
in the present case, the complainant, eye witnesses and
the Medical Officer have been examined. They have supported
prosecution case. As such mere non-examination of the
Investigating Officer would not make the prosecution case
untrustworthy.
11] This takes me to consider the another contention of
the learned counsel that the offence under section 324 of
I.P.C. is not made out because the alleged offence was
committed by stick. Section 324 of the Indian Penal Code
reads thus:
324- 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 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
It is clear that for attracting the provisions of section
324 of the Indian Penal Code, the instrument of the offence
should be one which out of the instruments mentions in
section 324 of I.P.C. It is difficult to hold that the
bamboo stick, would be the instrument of offence as
required within the meaning of section 324 of I.P.C.
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12] Therefore, in this view of the matter the offence
under section 324 of the Indian Penal Code cannot be said
to be made out. More so, in view of the observations of the
Apex Court in Mathia ..vs.. State of Kerla 2005 2005(3) SCC
260. Para 16 & 17 of the said judgment are thus:
16- The expression any instrument which, used as
a weapon of offence, is likely to cause death has to
be gauged taking note of the heading of the section.
What would constitute a dangerous weapon would
depend upon the facts of each case and no
generlisation can be made.
17- The heading of the section provides some
insight into the factors to be considered. The
Essential ingredients to attract Section 326 are:
(1)voluntarily causing a hurt; (2) hurt caused must be
a grievous hurt; and (3) the grievous hurt must have
been caused by dangerous weapons or means. As was
noted by this Court in State of U.P. V. Indrajeet,
there is no such thing as a regular or earmarked
weapon for committing murder or for that matter a
hurt. Whether a particular article can per se cause
any serious wound or grievous hurt or injury has to be
determined factually. As noted above, the evidence of
the doctor (P.W.5) clearly shows that the hurt or the
injury that was caused was covered under the
expression grievous hurt as defined under section
320 I.P.C. The inevitable conclusion is that a
grievous hurt was caused. It is not that in every case
a stone would constitute a dangerous weapon. It would
depend upon the fact of the case. At this juncture, it
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9
would be relevant to note that in some provisions e.g.
Sections 324 and 326 the expression dangerous weapon
is used. In some other more serious offences the
expression used is deadly weapon (e.g. Sections 397
and 398), The facts involved in a particular case,
depending upon various factors like size, sharpness,
would throw light on the question whether the weapon
was a dangerous or deadly weapon or not. That would
determine whether in the case Section 325 or Section
3265 would be applicable.
13] Therefore, the question would be which offence has
been made out against the present accused. It would be
clear that in such circumstances, although the concurrent
findings of the trial court and lower appellate court are
accepted, it can not be held that the offence made out
against the applicant -accused is the one under section 324
of Indian Penal Code, but in my opinion, it would be under
section 323 of Indian Penal Code.
14] In these circumstances, I find that the
order of the trial court and the lower appellate court are
correct & proper and need to be confirmed to the extent of
the conviction of the applicant -accused for the offence
under section 323 of I..C.
15] This takes me to consider the sentence part of the
order of the trial court confirmed by the appellate court.
16] The accused applicant is sentenced to suffer simple
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10
imprisonment for three months and to pay fine of Rs.1000/-.
As has been found that the offence under section 324 is not
made out and the accused is found to be guilty under
section 323 I.P.C. the sentence will have to be reduced to
the suitable extent considering the nature of injuries on
the person of complainant. It is difficult to accord
benefit of Probation of Offenders Act to accused. In my
opinion it would be in the fitness of the things that the
accused is sentenced to suffer the sentenced already
undergone and with fine amount which he has paid.
Therefore, while upholding the conviction of the
applicant/accused his sentence is reduced to already
undergone and fine which he has paid. Therefore, the
revision application stands partly allowed in the aforesaid
terms.
JUDGE
smp.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY:
NAGPUR BENCH: NAGPUR
CRIMINAL REVISION APPLICATION NO.129 OF 2004
APPLICANT:
Bhupsingh @ Bablu s/o Kisanlal Baghele, aged 28
years, occupation : Cultivator, r/o Lodhitola, P.S.
Dawaniwada, tahsil and district : Gondia.
VERSUS
RESPONDENT:
State of Maharashtra, through P.S. Dawaniwada,
district : Gondia.
000
Shri D. S. Shrimali, Advocate for the applicant
Shri Ahirkar, A. P. P. for the respondent
000
CORAM: S. R. DONGAONKAR, J.
DATE : 27.9.2006
JUDGEMENT
Heard counsel for the parties.
1] The applicant in the present case, is taking
exception to the judgment and order passed by the learned
Additional Sessions Judge, Gondia in Criminal Appeal no.
16/2001, by which he confirmed the judgment and order of
sentence passed by the Judicial Magistrate First Class,
Tirora, in Regular Criminal Case No.28/1998 holding the
applicant/accused guilty for the offence punishable under
section 324 of the Indian Penal Code, while acquitting the
other two co-accused under section 397 and 401 of the
Criminal Procedure Code.
2] The facts necessary for the decision of this
revision petition may be stated thus. The
applicant/accused was proceeded in Regular Criminal Case
No.28/1998 before the Judicial Magistrate First Class,
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2
Tirora for the offence punishable under section 324 read
with section 34 of Indian Penal Code along with other co-
accused Kundansingh and Puransingh. It was a case of the
prosecution that Roshanlal Lilhare was residing at village
Lodhitola. Along with his father in law on 13.3.1998 at
about 1.00 p.m. Complainant Roshanlal was assaulted by
the accused with bamboo stick on his head whereby he
sustained bleeding injuries. The accused no.3 had also
beaten Roshanlal. It was alleged that one Chanlal Mahule,
Laxman Lilhare and Hiralal had intervened in the quarrel
and thereafter Roshanlal lodged report to Police Station
Dawaniwada. The matter was investigated. During the
investigation, the statement of the relevant witnesses were
recorded, the bamboo stick was seized, injury report in
respect of the complainant was obtained and after due
investigation charge sheet was submitted. During the trial,
the prosecution has examined in all six witnesses and after
recording the evidence and hearing , the learned Trial
Judge found this applicant/accused guilty of the offence
under section 324 of the Indian Penal Code and sentenced
him to suffer simple imprisonment for three months and to
pay fine of Rs.1000/-. He however, acquitted the other two
co-accused.
3] The applicant accused carried this matter to the
appellate court in Criminal Appeal No.16/2001. After
hearing, the appeal was dismissed and the applicant/accused
was directed to surrender the bail vide order of the
appellate court dated 20.7.2004.
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3
4] This revision petition is directed against that
order.
5] To contend that the order of the lower court is
illegal, improper and unjust at law, the learned counsel
for the applicant has submitted that the complainant if at
all he was attacked, he was attacked by stick and by no
means it can be called a weapon which is mentioned in
section 324 of Indian Penal Code. Further according to him,
in this case, the bamboo stick was not produced before the
court nor it was identified by the Medical Officer or the
complainant. He has further submitted that in this case the
Investigating Officer was not examined, so also on account
of old enmity the complainant had lodged false report. He
has relied on the decision of the Apex Court in (2005) 3
Supreme Court Cases Page 260 [Mathai ..vs.. State of Kerala
and also in 2000(1) Mh.L.J. Page 549 [Dilip Ramaji
Kakde...vs... State of Maharashtra].
6] Therefore, according to the learned counsel, the
conviction & sentence imposed by the learned trial court,
confirmed by the appellate court are bad in law and liable
to be set aside.
7] As against this, learned A. P.P. for the State has
submitted that although the stick was seized, it was not
shown to the witnesses due to oversight and this fact by
itself will not vitiate the trial in view of the fact that
eye witnesses have clearly supported the prosecution case
and therefore, no adverse inference should be drawn for
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4
non-identification of the stick and further non examination
of the Investigating Officer. According to him, although
there was old enmity, it was only to instigate the accused
to commit the offence and the prosecution has established
its case, and therefore the concurrent findings of the
lower courts should not be interfered with.
8] On perusal of the judgments and orders of the trial
Judge and learned appellate Judge, it would be seen that
both of them have relied on the account of eye witnesses
regarding the incident. On scrutiny of the record, it does
not reveal that in fact the alleged instrument of offence
i.e. Stick was identified by the complainant or eye
witnesses to the incident or the Medical Officer who has
been examined, though it appears to have been seized during
the investigation.
9] The question is whether non-identification of this
stick in the trial would vitiate the conviction. The answer
to this would be in negative in as much as in the present
case the Medical Officer has deposed about the injuries
found on the person of the complainant. He had found four
injuries on the person of Roshanlal when he was examined
immediately after the incident. According to the opinion of
the Doctor the said injuries can be caused due to blow of
bamboo stick. In these circumstances, when there is no
evidence to show that the complainant must have suffered
injuries due to some other weapon or reason, the
prosecution case can not be disbelieved only on that count.
No adverse inference in such circumstances can be drawn.
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5
10] My attention was drawn to the observations of this
court in 2000(1) Mh.L.J.549 [supra] in paragraph 14.
Paragraph 14 reads thus:
14 It is then submitted by Shri Nawab, learned
counsel for the appellant/accused, that though the
evidence of investigating officer P.W.12 Duddalwar as
well as memorandum (Ex.89) and the discovery panchnama
(Ex.90) go to show that one heavy stick admeasuring
46 in length and 6 in circumference was recovered at
the instance of the appellant/accused. However, this
stick was neither produced before the Court nor shown
to the doctor conducting the postmortem examination
for his opinion and, therefore, no any weight can be
attached to such recovery nor it can be said that the
alleged offence was committed with the said stick. For
this Shri Nawab, placed reliance on the decision in
Bhola Nath ..vs.. State, 1976 Cri.L.J.1409. It is true
that the stick alleged to have been seized at the
instance of the appellant/accused has neither been
produced before the Court nor shown to Dr. Ejaz Ahmed
(P.W.10), who conducted the postmortem examination of
the dead body of Murlidhar for his opinion as to
whether the injuries sustained by the deceased or by
P.W.2 Gunaji are possible by the by the said stick.
The prosecution has not offered any explanation for
the non production of the said stick before the court
and, therefore, we are inclined to accept the
submission made by Shri Nawab in this respect, because
the apex Court in the decision in Bhola Nath ..vs..
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6
State 1976 Cri.L.J. 1409 cited supra, held that:
8-The accused is said to have made a disclosure
statement (as per Exh.P.W.10(A) to the Police
Inspector Bhim Singh (P.W.16) that he had kept the
knife near Chhaji Colony Shadara adjacent to a coconut
tree in the field in the buses and that he would get
the same recovered after pointing it out. This
statement is said to have been made in the presence of
Shuja Uddin (P.W.10) and Mohd. Asfeen (P.W.11) which
was seized under a memo (Ex.P.W.1/C). The said knife
was not even sent for serological examination because
it was not said to contain blood stains. It was not
shown to the doctor who conducted the postmortem or
even to any other doctor who was examined. The learned
Additional Sessions Judge rightly did not attach any
weight to the recovery of the said knife in the view
that it did not contain blood stains. Without any
blood stains on it there is no guarantee that the same
was used in this case. It is needless, therefore,to be
detained by the said recovery even though Mr. Frank
Anthony, learned counsel for Bhola Nath, went the
length of contending that a knife had been falsely
planted by the police in this case.
However, in that case the prosecution has not offered any
explanation for non-production of the stick before the
court. In the present case the stick was produced before
the court, though it remained to be identified by the
complainant and the Medical Officer. Therefore, unless
there is substantial reason to disbelieve the prosecution
case, mere fact that the said stick was not identified by
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7
the complainant or the eye witness or the Medical Officer
will not vitiate the prosecution case.
Although the Investigating Officer is not examined
in the present case, the complainant, eye witnesses and
the Medical Officer have been examined. They have supported
prosecution case. As such mere non-examination of the
Investigating Officer would not make the prosecution case
untrustworthy.
11] This takes me to consider the another contention of
the learned counsel that the offence under section 324 of
I.P.C. is not made out because the alleged offence was
committed by stick. Section 324 of the Indian Penal Code
reads thus:
324- 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 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
It is clear that for attracting the provisions of section
324 of the Indian Penal Code, the instrument of the offence
should be one which out of the instruments mentions in
section 324 of I.P.C. It is difficult to hold that the
bamboo stick, would be the instrument of offence as
required within the meaning of section 324 of I.P.C.
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8
12] Therefore, in this view of the matter the offence
under section 324 of the Indian Penal Code cannot be said
to be made out. More so, in view of the observations of the
Apex Court in Mathia ..vs.. State of Kerla 2005 2005(3) SCC
260. Para 16 & 17 of the said judgment are thus:
16- The expression any instrument which, used as
a weapon of offence, is likely to cause death has to
be gauged taking note of the heading of the section.
What would constitute a dangerous weapon would
depend upon the facts of each case and no
generlisation can be made.
17- The heading of the section provides some
insight into the factors to be considered. The
Essential ingredients to attract Section 326 are:
(1)voluntarily causing a hurt; (2) hurt caused must be
a grievous hurt; and (3) the grievous hurt must have
been caused by dangerous weapons or means. As was
noted by this Court in State of U.P. V. Indrajeet,
there is no such thing as a regular or earmarked
weapon for committing murder or for that matter a
hurt. Whether a particular article can per se cause
any serious wound or grievous hurt or injury has to be
determined factually. As noted above, the evidence of
the doctor (P.W.5) clearly shows that the hurt or the
injury that was caused was covered under the
expression grievous hurt as defined under section
320 I.P.C. The inevitable conclusion is that a
grievous hurt was caused. It is not that in every case
a stone would constitute a dangerous weapon. It would
depend upon the fact of the case. At this juncture, it
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9
would be relevant to note that in some provisions e.g.
Sections 324 and 326 the expression dangerous weapon
is used. In some other more serious offences the
expression used is deadly weapon (e.g. Sections 397
and 398), The facts involved in a particular case,
depending upon various factors like size, sharpness,
would throw light on the question whether the weapon
was a dangerous or deadly weapon or not. That would
determine whether in the case Section 325 or Section
3265 would be applicable.
13] Therefore, the question would be which offence has
been made out against the present accused. It would be
clear that in such circumstances, although the concurrent
findings of the trial court and lower appellate court are
accepted, it can not be held that the offence made out
against the applicant -accused is the one under section 324
of Indian Penal Code, but in my opinion, it would be under
section 323 of Indian Penal Code.
14] In these circumstances, I find that the
order of the trial court and the lower appellate court are
correct & proper and need to be confirmed to the extent of
the conviction of the applicant -accused for the offence
under section 323 of I..C.
15] This takes me to consider the sentence part of the
order of the trial court confirmed by the appellate court.
16] The accused applicant is sentenced to suffer simple
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10
imprisonment for three months and to pay fine of Rs.1000/-.
As has been found that the offence under section 324 is not
made out and the accused is found to be guilty under
section 323 I.P.C. the sentence will have to be reduced to
the suitable extent considering the nature of injuries on
the person of complainant. It is difficult to accord
benefit of Probation of Offenders Act to accused. In my
opinion it would be in the fitness of the things that the
accused is sentenced to suffer the sentenced already
undergone and with fine amount which he has paid.
Therefore, while upholding the conviction of the
applicant/accused his sentence is reduced to already
undergone and fine which he has paid. Therefore, the
revision application stands partly allowed in the aforesaid
terms.
JUDGE
smp.
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