High Court

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IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO.5049 OF 20241Tanaji Shivaji Solankar,Age 40 yrs., Occ. Advocacy,2Vanmala w/o Tanaji Solankar,Age 30 yrs., Occ. Law Student,3Shivaji Maruti Solankar,Age 65 yrs., Occ. Farmer, 4Prabhawati w/o Shivaji Solankar,Age 57 yrs., Occ. Housewife,All are permanent r/o Koregaonwadi,Tq. Omerga, Dist. Dharashiv. … Applicants… Versus …1The State of MaharashtraThrough the Officer In-charge,Police Station, Omerga,Tq. Omerga, Dist. Dharashiv. 2Smt. Maya Satish Solankar,Age 32 yrs., Occ. Housewife,R/o C/o Venkat Mane, Koregaonwadi,Tq. Omerga, Dist. Dharashiv. … Respondents...Mr. R.R. Karpe, Advocate h/f Mr. S.P. Dhobale, Advocate for applicantsMr. N.R. Dayama, APP for respondent No.1Mr. N.L. Jadhav, Advocate for respondent No.2 2Cri.Appln_5049_2024...CORAM :SMT. VIBHA KANKANWADI & SANJAY A. DESHMUKH, JJ. RESERVED ON :10th MARCH, 2025PRONOUNCED ON :04th APRIL, 2025ORDER : ( PER : SMT. VIBHA KANKANWADI, J. )1Present application has been filed for quashment of proceedingsin Regular Criminal Case No.163/2020 pending before learned JudicialMagistrate First Class, Omerga, Dist. Osmanabad arising out of FirstInformation Report vide Crime No.132/2020 dated 26.04.2020 registeredwith Police Station, Omerga, Dist. Osmanabad/Dharashiv, for the offencepunishable under Sections 324, 323, 504, 506 read with Section 34 of theIndian Penal Code, 1860. 2Heard learned Advocate Mr. R.R. Karpe holding for learnedAdvocate Mr. S.P. Dhobale for applicants, learned APP Mr. N.R. Dayama forrespondent No.1 and learned Advocate Mr. N.L. Jadhav for respondent No.2.Perused affidavit-in-reply of respondent No.2 Smt. Maya Satish Solankar. 3It has been vehemently submitted on behalf of applicants thatperusal of First Information Report and charge sheet is not disclosing the 3Cri.Appln_5049_2024ingredients of offence punishable under Section 324 of the Indian Penal Codeand other Sections are non cognizable in nature. The First InformationReport is the result of concoction and previous disputes. Perusal of injurycertificate issued by Sub District Hospital, Omerga would show that when theinformant was examined, there was only one injury i.e. Contused LaceratedWound, 2 x 2 x 0.2 cms. approximately in size on right arm, probable weaponis hard and blunt object and nature of injury is stated to be simple. InjuryCertificate of one Laxman Mane would also show that he had one injury i.e.Contused Lacerated Wound, 4 x 2 x 0.2 cms. approximately in size on leftforearm with hard and blunt object and it was simple injury. As per the FirstInformation Report, the informant, who is daughter-in-law of applicant Nos.3and 4 and sister-in-law of applicant No.1 and co-sister of applicant No.2, wasdemanding her share and had also lodged suit for partition in land, houseand brick kiln. She states that on 26.04.2020 around 6.00 p.m. she foundthat applicants were preparing road by means of JCB for transporting bricksfrom the brick kiln. She told the applicants that they should not transport thebricks till the decision by the Court. However, all the accused persons askedher, as to who is she to ask them and she was assaulted on that count.Applicant No.2 had taken bite of her right hand, causing injury to her. Whenher brother Laxman Mane had tried to rescue her, applicant Nos.1 and 3 hadassaulted him by giving kicks and fists. Applicant No.1 had taken bite of left 4Cri.Appln_5049_2024hand of Laxman. Human teeth cannot be said to be a weapon is described inSection 324 of the Indian Penal Code. He relies on the decision in ShakeelAhmed vs. State of Delhi [(2004) 10 SCC 103], wherein it is held in respectof Section 326 of the Indian Penal Code that - “Teeth of human being cannot be considered as deadly weapon as perthe description of deadly weapon enumerated under Section 326 ofthe Indian Penal Code. Hence, the offence cannot escalate to Section326 of the Indian Penal Code. It can best remain only at Section 325of the Indian Penal Code.”3.1He also relies on the decision of the Single Bench of Hon’bleKarnataka High Court, Dharwad Bench in Lakshmana Reddy Yane LakshmiReddy s/o Gadilingappa and another vs. The State of Karnataka in CriminalRevision Petition No.100181 of 2014 decided on 20.07.2023, whereinShakeel Shmed (supra) was relied and, therefore, when the nature of theinjury as per the medical report is simple in nature, but human teeth cannotbe considered as the weapon of shooting, stabbing, cutting etc., then theingredients of Section 324 of the Indian Penal Code are not at all attracted.The other Sections being non cognizable in nature, matter cannot proceed. 4Per contra, learned APP as well as learned Advocate forrespondent No.2 strongly opposed the application and submit that the humanteeth have been used as weapon in the present matter and it would be upon 5Cri.Appln_5049_2024the explanation by the Medical Officer. It would be decided as to whether itis an instrument of shooting, stabbing, cutting etc. or not. Let there beevidence. Learned Advocate for respondent No.2 submits that applicants areunnecessarily resisting and not giving the share of her deceased husband andthereby harassing her and thereby she is required to suffer. Respondent No.2also relies on the decision in Special Civil Suit No.11/2018 dated 13.08.2024,whereby that suit came to be decreed. It was declared that respondent No.2is the widow of deceased Shivaji, who is the son of applicant Nos.3 and 4 andplaintiff No.1 therein is her daughter and they have 1/4th share in the suitproperty. Applicant No.1, who is Advocate by profession, has lodged FirstInformation Report on 28.04.2020 vide Crime No.140/2020 with the samePolice Station, for the offence punishable under Sections 143, 147, 149, 323,324, 34, 504, 506 of the Indian Penal Code regarding incident at 6.00 p.m.on 26.04.2020. This shows that incident had happened on that day and,therefore, let there be trial. 5In the normal course, when there are cross cases, this Courtwould be slow in interfering in respect of one matter only, however, we arealso required to consider as to whether the ingredients of the offence areforthcoming and whether the evidence supports prima facie to theallegations. Certainly, there appears to be property dispute between 6Cri.Appln_5049_2024applicants and respondent No.2 and there is decree in favour of respondentNo.2. Enmity or disputes are in fact, double edged weapons, which may cutboth of them. 6We would like to go by contents of First Information Report,statements of witnesses and other documents in order to consider as towhether the offence under Section 324 of the Indian Penal Code has beenmade out or not. The other offences i.e. Sections 323, 504, 506 read withSection 34 of the Indian Penal Code are non cognizable in nature and in thatevent First Information Report under Section 154 of the Code of CriminalProcedure will not be maintainable. First Information Report and statementsof witnesses, especially the injured, would also show that when informanthad allegedly requested applicants not to transport bricks from the brick kilntill the decision of the case, she states that she was assaulted. She levelsallegation against applicant No.1 that he took bite (i.e. by using his teeth asweapon) to the left forearm of her brother Laxman and she also states thatapplicant No.2 had taken bite of her right hand. That means, she has levelledallegation that applicant Nos.1 and 2 both have used teeth as weapon. Asper the ingredients of Section 324 of the Indian Penal Code, the hurt shouldbe by means of any instrument for shooting, stabbing or cutting, or anyinstrument which, used as a weapon of offence, is likely to cause death, or by 7Cri.Appln_5049_2024means of fire or any heated substance, or by means of any poison or anycorrosive substance, or by means of any explosive substance or by means ofany substance which it is deleterious to the human body to inhale, toswallow, or to receive into the blood etc. As aforesaid, the medicalcertificates of informant and her brother show that there was simple hurt toboth of them. Now, the weapon that is used is stated to be hard and bluntobject. The teeth marks were not noted by the Medical Officer and he hasgiven the description of injury as Contused Lacerated Wound. Thedimensions given cannot match with the injury that might be caused byhuman teeth. The natural curve in case of bite is not noted. Therefore, it ishard to believe that injuries which were noted on the person of informantand her brother would have been caused by human teeth. Hon’ble SupremeCourt in Shakeel Ahmed (supra) while considering the offence under Section326 of the Indian Penal Code observed that teeth of human being cannot beconsidered as deadly weapon as per the description of deadly weaponenumerated under Section 326 of the Indian Penal Code. If we considerSection 326 of the Indian Penal Code, then as compared to Section 324 of theIndian Penal Code, there is only the difference of word ‘hurt’ and ‘grievoushurt’ in the respective sections and then the change in the sentence.Therefore, the observations in Shakeel Ahmed (supra) are applicable to thecase under Section 324 of the Indian Penal Code also. In Shakeel Ahmed 8Cri.Appln_5049_2024(supra) injury was grievous as the phalanx of index finger was snipped offand, therefore, it was considered under Section 325 of the Indian Penal Code.If we apply the same rule, then the injury would come down to Section 323of the Indian Penal Code, which is non cognizable in nature. Therefore, withthis evidence, though there appears to be a cross case; yet, it would be anabuse of process of law to ask the applicants to face the trial, as theingredients of offence under Section 324 of the Indian Penal Code are notattracted for the aforesaid reasons. Hence, following order. ORDERi)Criminal Application stands allowed.ii)The proceedings in Regular Criminal Case No.163/2020 pendingbefore learned Judicial Magistrate First Class, Omerga, Dist. Osmanabadarising out of First Information Report vide Crime No.132/2020 dated26.04.2020 registered with Police Station, Omerga, Dist.Osmanabad/Dharashiv, for the offence punishable under Sections 324, 323,504, 506 read with Section 34 of the Indian Penal Code, 1860, standsquashed and set aside as against applicants viz. 1) Tanaji Shivaji Solankar, 2)Vanmala w/o Tanaji Solankar, 3) Shivaji Maruti Solankar and 4) Prabhawatiw/o Shivaji Solankar. ( SANJAY A. DESHMUKH, J. ) ( SMT. VIBHA KANKANWADI, J. ) agd