1` IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application (APPA) No. 390/2011 in Criminal Appeal No./------/ 2011 State of Maharashtra, through Police Station Officer, P.S. Ghuggus vs. Rajesh Nanaji Uge and another. ----------------------------------------------------------------------------------- Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's or directions and Registrar's orders. Orders. Mr. T.A.Mirza, APP for the appellant. CORAM : MRS. V.K.TAHILRAMANI & M.L.TAHALIYANI, JJ DATE : 29.06.2011 Heard the learned APP for the appellant. 2. The applicant – State of Maharashtra has preferred this application for leave to file appeal against the Judgment and order dated 1.2.2011 passed by the Sessions Judge, Chandrapur in Sessions Case No. 117/2009. By the said Judgment and order, the learned Sessions Judge acquitted the respondents of the charge under section 307 read with 34 of the Indian Penal Code. 2` 3. It is the prosecution case that accused no.2 is the niece of the complainant P.W.1 Bhadu Khandarkar. The accused no.1 is the husband of accused no.2. There was some dispute in relation to land between the complainant and the accused persons. It is the case of the prosecution that on 28.4.2009 at about 10.30 a.m. the accused no. 2 caught hold of legs of P.W.1 Khandarkar and accused no.1 assaulted P.W.1 Khandarkar with an axe on his head and other parts of the body. Hence, P.W.1 Khandarkar lodged FIR. Thereafter investigation commenced. Complainant Khandarkar was sent for medical examination. The following three injuries were found on his person. i) Cut injury over scalp on middle side, ad measuring 3 ½ cm long skin superficial fascia and deep fascia involved. ii) Swelling over right shoulder admeasuring 2 ½ cm x 2 cm. iii) Laceration over elbow on dorsal side of the left hand admeasuring 3 ½ inch x ½ inch. After completion of investigation, charge sheet came to be filed. 3` 4. Charge came to be framed against the respondents-accused under section 307 read with section 34 of the Indian Penal Code. Respondents pleaded not guilty to the said charge and claimed to be tried. The defence of the respondents is of total denial and false implication. Further defence of the respondents- accused is that P.W.1 Khandarkar assaulted accused no.2 Sushama Uge with a stick which resulted into an injury on her left buttock size 2 cm x 2 cm and on account of this accused no. 1 assaulted P.W.1 Khandarkar. Thus, the defence of the accused appears to be that in exercise of private defence, the injuries were caused to P.W.1 Khandarkar. After going through the evidence adduced by the prosecution, the learned Sessions Judge acquitted the respondents – accused as stated above. Hence, this appeal. 5. We have heard the learned APP for the appellant State. We have perused the evidence in the present case as well as the Judgment and order passed by the learned Sessions Judge. After giving our anxious 4` consideration to the matter, we are of the opinion, that the Judgment and order of the trial Court deserves to be upheld for the reasons stated hereinafter. 6. The case of the prosecution is that the case would fall under section 307 r/w 34 of the Indian Penal Code. The injury no.1 found on the person of P.W.1 Khandarkar was cut injury over scalp on middle side, injury no.2 was swelling over right shoulder and injury no.3 was laceration over elbow on dorsal side of the left hand. Both injuries No. 2 & 3 would not fall under section 326 of the Indian Penal Code. However, it is the prosecution case that injury no.1 i.e. cut injury over scalp on middle side ad-measuring 3 ½ cm long clearly falls under section 307 of the Indian Penal Code. The prosecution has examined P.W. 4 Dr. Sulbhewar in relation to this injury. As for as injury no.1 is concerned, P.W. 4 Dr. Sulbhewar who examined P.W.1 Khandarkar, has stated that injury no.1 was grievous in nature. In his cross examination, he has admitted that without going through the CT scan report, it was not 5` possible to come to the conclusion whether the injury to the head was grievous or not. He has categorically admitted that he has not verified the CT scan report. It is pertinent to note that doctor has admitted that if an axe is forcefully used as weapon, more severe injury than injury no.1 is possible. Secondly, the doctor has admitted that grievous injury means injury caused to the organ of a person which causes permanent harm to him. According to doctor, the case of P.W.1 Khandarkar falls under clause sixthly and eighthly of Section 320 of the Indian Penal Code. Clauses sixthly and eighthly of Section 320 IPC read as under: Sixthly – Permanent dis-figuration of the head or face. Eighthly – Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits. Neither there was permanent dis-figuration to the head or face of the P.W.1 Khandarkar nor he 6` suffered severe bodily pain for 20 days. Admittedly, after treatment P.W.1 Khandarkar was sent back to his house on the same day. The evidence of P.W.1 Khandarkar shows that accused no. 2 caught hold of his legs and he fell down and thereafter accused no.1 assaulted him on his head by means of an axe. In such situation, more serious injury was expected to the head of the P.W.1 Khandarkar, however, it is not so. In view of all these facts it cannot be held that injury was grievous in nature. 7. P.W.6 Sundarabai is the wife of the complainant. She claims to be an eye witness to the incident. She has stated that she was working in the field along with her husband i.e. Bhadu (P.W.1), accused no.2 caught hold of legs of her husband and accused no.1 assaulted her husband by means of axe on his head, she started shouting “Dhava Dhava”. She further stated that as she saw bleeding from the injury to the head, she became unconscious. Significantly, in the cross- examination P.W.6 has fairly admitted that when she went to the field, her husband was lying on the ground and as she saw bleeding from the heard injury, she shouted as “Dhava, Dhava” and then she 7` became unconscious. She further admitted that her husband was lying on the Dhura, when she saw him. The testimony of P.W.6 makes it clear that she had seen her husband only when he was lying on the Dhura and looking to the injury she shouted and became unconscious. Thus, it is doubtful whether P.W.6 had seen the incident of assault by accused no.1 to her husband. It is clear from the testimony of P.W.6 that her husband was lying on the Dhura when she saw him. So there is every possibility of P.W.1 receiving injury to his head when he fell down on the Dhura. 8. P.W.2 Raju is the son of the complainant. Admittedly, he is not an eye witness to the incident and he came to the place of incident on receiving message that his father was assaulted. In his cross examination, this witness has admitted that when he went to the field, he saw thorny sticks and a stem of babul tree lying on the dhura. Thus, possibility of complainant receiving injuries on falling on the stem of babul tree, cannot be ruled out. 8` 9. Thereafter, the prosecution has also relied upon the evidence of P.W.5 Smt. Maya Khandarkar, who is an eye witness to the incident. P.W.5 Maya has stated that she saw P.W.1 and accused no.1 beating each other. Her evidence indicates that some scuffle was going on between the complainant and accused. It is pertinent to note that Maya has not attributed any role to accused no.2. In fact, Maya was unable to state where accused no.2 was at the relevant point of time. Looking to this fact her testimony also appears to be unreliable. 10. We have already observed earlier that the defence of the accused is that while exercising the right of private defence, injuries were caused to P.W.1 Khandarkar. The defence taken by the accused is supported by the evidence of Investigating Officer P.W.7 P.S.I., Patankar. It has emerged in his evidence that the accused persons had also filed a complaint against P.W.1 Khandarkar. The accused persons were also sent for medical examination in the Primary Health 9` Centre, Ghuggus. The medical certificate of accused no.2 (Exh. 54-A) reveals that there were injuries on the left buttock of accused no.2 size 2 x 2 cm. caused by hard blunt object and the age of the injury was within 12 hours. It is pertinent to note that P.W.1 Khandarkar has specifically admitted that accused no.2 might have received injuries by stick which was belonging to him. This supports the defence of the accused that injuries were caused to P.W.1 Khandarkar while exercising the right of private defence. 11. As stated earlier by us, the medical evidence does not support that the case would fall under section 307 or even 326 of the Indian Penal Code. At the most, it would fall under section 324 of the Indian Penal Code. However, looking to the fact that the injuries were caused to P.W. 1 Khandarkar while exercising the right of private defence, the accused cannot be held guilty even under section 324 of the Indian Penal Code. 10` 12. For the aforesaid reasons, the application for leave to file appeal preferred by the appellant State is rejected. Consequently, the appeal is dismissed. JUDGE JUDGE patle