drp {1} Cri. Application No.432/2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.432 OF 2011 1. Sambhaji Dagadu Patil APPLICANTS Age-42 years, Occ-Business 2. Sau Sangita Sambhaji Patil Age-38 years, Occ-Household Both R/o Swami Samartha Nagar, Latur, Dist-Latur VERSUS The State of Maharashtra RESPONDENT Through In-charge Police Station, MIDC, Police Station, latur ....... Mr.C.R.Deshpande, Advocate for the applicants Mr.G.R.Ingole, APP for respondent State ....... [CORAM : A.V.POTDAR, J.] DATE: 28th March 2011 ORAL JUDGMENT: 1. By this application, u/s 482 of the Criminal Procedure Code, the applicants have questioned the order dated 15.01.2011 passed by Judicial Magistrate First Class, Latur below Exhibit-24 in RCC No.401/2008. By the impugned order, the charge framed drp {2} Cri. Application No.432/2011 earlier, came to be altered as u/s 326 of the Indian Penal Code. 2. Rule. Rule made returnable forthwith. By consent of the learned counsel for the parties, heard finally at the stage of admission. 3. Charge sheet was filed against the applicants on 03.07.2008 for an offence punishable u/s 325, 324, 504 r/w 34 of the Indian Penal Code. It appears that after hearing the parties and on perusal of record, initially, charge was framed against the applicants on 25.02.2010 for an offence punishable u/s 325, 324, 504 r/w 34 of the Indian Penal Code. The applicants abjured their guilt and claimed to be tried. Thereafter, plea of the applicants was recorded and the matter was adjourned thereafter, from time to time. It also appears that an application at Exhibit-24 was moved by the prosecution to alter the charge for an offence punishable u/s 326 instead of u/s 325 of the Indian Penal Code. 4. Learned counsel for the applicants, from the observations in the impugned order, brought to my notice that the weapon allegedly used by the applicants was an iron rod and the injury sustained by the victim was fracture to his writs. Learned counsel for the applicants take the Court through Section 326 of the Indian Penal Code, which reads thus - 326. Voluntarily causing grievous hurt by dangerous drp {3} Cri. Application No.432/2011 weapons or mean- 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 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. 5. It is urged that considering the definition of section 326, the use of weapon and the injury requires to be considered. According to learned counsel for the applicants, the iron rod cannot be termed as dangerous weapon and considering the nature of injury sustained by the victim, i.e. fracture on wrist, it cannot be said that the same would have resulted in death had it not been treated instantly. It is, therefore, urged that it was not necessary to alter the charge from offence punishable u/s 325 of the Indian Penal Code to offence punishable u/s 326 of the Indian Penal Code. Per contra, learned APP supported the impugned judgment. 6. In view of the averments made in the complaint, as stated in para 7 of the impugned order, the allegations about the use of weapon like iron rod and the nature of injury i.e. fracture of the wrist, would not constitute an offence punishable u/s 326 of drp {4} Cri. Application No.432/2011 the Indian Penal Code. 7. Taking into consideration the above aspects, the order dated 15th January 2011 passed by JMFC, Latur, below Exhibit-24 in RCC No.401/2008 requires to be interfered with. 8. Consequently, the application succeeds. The order dated 15th January 2011, impugned in the present application is hereby quashed and set aside. The trial to proceed as per the charge framed at Exhibit-15 u/s 325, 324, 504 r/w 34 of the Indian Penal Code. Rule is thus made absolute as indicate above, with no order as to costs. [A.V.POTDAR, J.] drp/B10/criapln432-11