CRIMINAL REVISION No. 1270 of 2015 v. (SHRI RAJESH JOSHI -GOVT. ADVOCATE)

Judgment

3. THE STATE OF MADHYA PRADESH STATION HOUSE OFFICER THRU. P.S. INDUSTRIAL AREA DEWAS (MADHYA PRADESH) VRINDAWAN S/O PARMANAND, AGED ABOUT 28 YEARS, VILLAGE KUMARIYA TEHSIL DEWAS (MADHYA PRADESH) MAKHAN S/O PARMANAD, AGED ABOUT 70 YEARS, VILLAGE KUMARIYA DEWAS (MADHYA PRADESH)

(SHRI RAJESH JOSHI -GOVT. ADVOCATE) .....RESPONDENTS This revision coming on for hearing this day, th e court passed the following: With consent of the parties heard finally. ORDER

1. This criminal revision under Section 397 r/w 401 of Cr.P.C. has been Signature Not Verified Signed by: SUMATHI Signing time: 14-10- 2023 14:39:51 2 filed by the petitioner being aggrieved by the judgment dated 28.08.2015 passed b y the Fourth Additional Sessions Judge, District-Dewas in Criminal Appeal No.175/2014, whereby learned Judge dismissed the appeal preferred by the applicant complainant by affirming the acquittal of accused persons under Section 326 and 324 of IPC, passed in the judgment dated 28.08.2015 by the learned Judicial Magistrate First Class in Criminal Appeal No.159/2014 and 175/2014.

2. Brief facts of the case are that on 16.08.2014 complainant Shivjiram lodged an report at Police Station Industrial Area, District Dewas alleging that accused Vrindawan armed with axe came to his house and caused injury on the eyebrow of the complainant. When Kamlabai and Ramesh came to intervene Vrindawan assaulted them due to which Kamlabai sustained injury on her wrist and Ramesh sustained injury on his waist. On the basis of which FIR was registered against the accused persons.

03. During investigation injured persons were sent to hospital for treatment. Police reached the spot and prepared spot map, applicants were arrested and the statement of witnesses were recorded. After completion of investigation, charge-sheet has been filed.

04. Trial Court, while passing the judgment, acquitted accused Makhan from all the charges and convicted accused Vrindawan for offence punishable under Section 324 of IPC, 1860 and sentenced with fine of Rs.500/- with default stipulation, while acquitting him from offence under Section 326 of IPC. An appeal was filed against the said acquittal and enhancement of sentence under Section 324 of IPC, whereby learned appellate Court acquitted accused Vrindawan for offence under Section 324 of IPC and convicted him under Section 323 of IPC till the rising of the Court with fine of Rs.500/- and usual Signature Not Verified Signed by: SUMATHI Signing time: 14-10- 2023 14:39:51 3 default stipulation. Being aggrieved with the aforesaid judgment complainant/applicant has preferred this revision petition.

05. Counsel for the petitioner submitted that judgment of the learned Court below is contrary to law and facts of the case. Courts below have committed error in not believing the prosecution witnesses. The judgment of acquittal is not in persuance of evidence. There are material omissions and contradictions in the statement of the defence witnesses. It is further submitted that this petition be partly allowed and the sentence awarded to the petitioner be enhanced from till rising of the Court to appropriate sentence by enhancing the fine amount. The petittioner also prays for conviction of accused Makhan in his petition.

06. Learned counsel for the State on the other hand supports the impugned judgment and prays for dismissal of this revision.

07. In backdrop of the aforesaid rival submission, the question for determination is as to whether the order of learned Sessions Judge qua acquitting the accused Vrindawan is correct in the eyes of law and facts.

08. Having considered the rival submissions and on perusal of the record, it is evident that the learned trial Court as well as the learned Appellate Court has not committed any error in appreciation of evidence available on record. Further, it is found that both the courts below considered the evidence available on record and correctly found that the case of the prosecution is well supported by the injured, witnesses and medical testimony.

09. It is evident from the statement of Dr. H.S. Rana (P.W.6) that the injury was caused to the complainant Shivjiram by hard and blunt object and the injury is simple in nature, therefore at the most offence under Section 323 or Signature Not Verified Signed by: SUMATHI Signing time: 14-10- 2023 14:39:51 325 could be made out, further as there is no fracture or grevious injury was caused to the injured, the question of enhancement of offence under Section 4 323 of IPC to Section 324 or 326 of IPC does not arise.

10. Here it is relevant to reproduce Sections 323, 324 and 326 of IPC which runs as under:

323. Punishment for voluntarily causing hurt Whoever, except in the case provided for by section 334, voluntarily shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both. causes hurt,

324. Voluntarily causing hurt by dangerous weapons or means Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as 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.

326. Voluntarily causing grievous hurt by dangerous weapons or means – Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt 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 Signature Not Verified Signed by: SUMATHI Signing time: 14-10- 2023 14:39:51 5 inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

11. In view of the aforesaid provisions the evidence available on record is considered, as per the statement of Dr.H.S. Rana (P.W.6) the injury was caused by hard and blunt object and no fracture or grievous injury was found on the person of the injured has been proved by the prosecution. In these submissions conviction under Section 323 of IPC held against Vrindawan could not be enhanced or aggravated and therefore the appeal regarding enhancing the conviction of Vrindawan is found devoid of merit.

12. So far as the converting the findings of acquittal to conviction of respondent no.3 Makhan is concerned, according to the Sub Section 3 of 401 of Cr.P.C, High Court is not authorised to convert a finding of acquittal into one of conviction. Be that as it may, the learned trial Court after proper consideration of evidence acquitted the accused Makhan which was duly affirmed by learned appellate Court. As such the judgment of learned appellate is not suffering from any illegality or infirmity and does not warrant interference.

13. In view of the aforesaid observations and under the limited revisional jurisdiction of this Court, the request for enhancement of sentence as well as request for conviction of respondent no.3 cannot be accepted.

14. Accordingly, this revision petition is hereby dismissed.

15. A copy of this order be sent to the concerned trial Court for necessary compliance. Certified copy as per rules. Signature Not Verified Signed by: SUMATHI Signing time: 14-10- 2023 14:39:51 sumathi 6 (PREM NARAYAN SINGH) JUDGE Signature Not Verified Signed by: SUMATHI Signing time: 14-10- 2023 14:39:51