1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION NO.32/2009. Sadat Ahmed Khan s/o Wahed Khan - APPLICANT VERSUS The State of Maharashtra & Ors. - RESPONDENTS ***** Mr.S.A.G.Qureshi Advocate for Applicant; Mr.VD Godbharale, APP for State. Mr.G.R.Syed, Advocate for Respondent No.2. ----- CORAM : K.U.CHANDIWAL, J. DATE : 23rd September, 2009. PER COURT : 1) Heard learned Counsel for the original complainant and the accused respectively. Rule. By consent heard finally. 2) In RCC No.117/2005 the learned Judicial Magistrate First Class, Parli Vaijnath for an offence under Sections 324 and 323 of IPC, convicted the accused for rigorous imprisonment of one year and fine of Rs.500, in default, S.I. for two months. 3) The matter was carried by the original complainant as also by the accused before the 2 learned Additional Sessions Judge, Ambajogai and while deciding the Criminal Appeal preferred by the accused, the learned Additional Sessions Judge allowed the appeal No.5/2007 and set aside the conviction, it has been assailed by the complainant. 4) Learned Counsel for the complainant - Sadat Ahmed Khan and his wife would submit that the order under challenge of the learned Additional Sessions Judge is nothing short of defining it with perversity, non-application of mind and attaching undue importance to non- existing facts. The Counsel pointed some of the instances, like the injured saying, suffering bleeding injuries, blood oozing and the learned Sessions Judge observed, if the blood was oozing, it should have its impact on the soil and to be reflected in the spot panchanama. The Counsel points that the evidence of P.W.3 is said to be of interested witness. 5) The learned Judge while analyzing the evidence of P.W.3 has given undue importance to the fact that the witness says having heard shouts, he rushed and intervened, separated the accused and the complainant, there was bleeding to the victim. The learned Judge found it as suspicious on the ground that the victim - P.W.1 3 and his wife are not stating that they were yelling at the material time. 6) The learned Sessions Judge for the reasons best known to him has referred in last paragraph of his order that no separate conviction is recorded in terms of Section 323 and this is erroneous. The learned Judge was oblivious to the fact that the learned JMFC has convicted the accused for the offence in terms of Section 324 of IPC and there was no need to impose separate sentence for an offence of lesser imprisonment like 323 of IPC. 7) The analysis of the evidence carried by the learned Additional Sessions Judge, Ambajogai apparently display non-application of mind. The learned Judge should have gone into the evidence of the injuries suffered by the victim, the statement of her husband, the medical evidence. The X-ray Plate played its vital role. It cannot be said that 14 stitches to the injured were not an outcome of any incident. The learned Judge gave much emphasis to the fact that the Investigator did not seize the stone. Non- seizure of stone by the Investigator by itself should not be a cause for the original complainant to suffer when there are crucial eye- witnesses to the incident. It was expected of the 4 learned Additional Sessions Judge to analyze the evidence critically and to arrive at his independent conclusions. 8) The view taken by the learned Sessions Judge cannot be said to be only the view which was possible in the facts of the case. In the situation, the matter needs to be re-assessed by the learned Additional Sessions Judge, Ambajogai. ORDER The order under challenge in Criminal Appeal No.5/2007 dated 5.12.2008 is set aside. The accused to appear before the learned Judge on 18th November, 2009, till then, same bail to continue. 9) Rule made absolute as above. 10) Needless to add, the learned Sessions Judge will not be influenced by the observations. ( K.U.CHANDIWAL ) JUDGE bdv/crrv32.09