( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION No. 319 of 2003. CRIMINAL REVISION APPLICATION No. 319 of 2003. CRIMINAL REVISION APPLICATION No. 319 of 2003. Yuvraj Sandipan Misal and others ..Applicants. Vs. The State of Maharashtra and (1) Anr Respondents. Mr Rahul Kate, Advocate for the Applicants. Ms M. H. Mhatre, A.P.P. for the State/Respondent. CORAM : V.C. DAGA, J. CORAM : V.C. DAGA, J. CORAM : V.C. DAGA, J. DATED : 23. 04. 2008. DATED : 23. 04. 2008. DATED : 23. 04. 2008. P.C.:- P.C.:- P.C.:- 1. This revision is directed against the judgment and order dated 2.5.2003 passed in Criminal Appeal No. 20 of 1999 by the learned I Ad hoc Additional Sessions Judge, Baramati setting aside the judgment and order dated 7.7.1999 with regard to the conviction and sentence passed by the learned Judicial Magistrate, First Class, Indapur in Regular Criminal Case No. 117 of 1997 and directing remand to the Judicial Magistrate with a direction to alter charge in the light of the ( 2 ) evidence on record and dispose of the case according to law following the principles of natural justice. 2. The applicants were prosecuted for having committed offence punishable under Sections 324, 323, 504, 506 read with Section 34 of the Indian Penal Code ("the I.P.C. for short"). The learned Magistrate was pleased to convict all the accused for the offence punishable under Sections 324, 323, read with Section 34 of the Indian Penal Code as per the provisions of Section 248(2) of the Code of Criminal Procedure, 1973 ("the Code for short") and acquitted them for the offence punishable under Sections 504 and 506 of the I.P.C. as per the provisions of Section 248 (1) of the Cr.P.C. 3. Not being satisfied with the order of conviction, the applicants preferred Criminal Appeal No. 20 of 1999 before the Sessions Judge, Baramati which was heard by the learned I Ad hoc Additional Sessions Judge, Baramati. He was pleased to hold that from the evidence of the injured witnesses, it is clear that the accused ( 3 ) had used weapons like axe and stick in commission of the offence. These weapons being deadly weapons and that the victims having suffered grievous hurt i.e. fracture injuries as defined in Section 320 of the I.P.C., as such, accused ought to have charged under Section 325 or 326 of the I.P.C. The Lower Appellate Court, entertaining this view, set aside the order of conviction and sentence passed by the Judicial Magistrate, Indapur and remanded the matter directing it to alter the charge in the light of evidence on record invoking power under Section 464 (2) of the Criminal Procedure Code. 4. The aforesaid judgment of the lower Appellate Court is the subject matter of challenge in this revision. The learned counsel for the applicants tried to canvass that the impugned order is erroneous and unsustainable in the eye of law. He further submits that the learned lower Appellate Court did not specify as to whether the Judicial Magistrate should proceed under Section 264 (2) (a) or (b) of the Cr.P.C. 5. So far as first contention leading to ( 4 ) erroneous view of the lower appellate Court is concerned, the learned counsel for the applicants could not take his submission to the logical end in view of the findings recorded by the lower Appellate Court in para 5 of the impugned order, reading as under: "From the medical evidence of Dr. Sanjiv Hegade, it reflects that injury No.1 caused to Sharad Misal is grievous in nature and that said injury was detected as a fracture of lower end of radius. Witness Shankar received injuries on occipital scalp by the backside blade of the axe. The fracture which he detected on left lower arm of Sharad might be caused by a blow of stick. Doctor further admits that after having drawn x-ray of the injury of Sharad, he detected the said fracture. Said x-ray plate bears x-ray plate No. 117. Nothing reveals from the evidence of the medical officer except the suggestion that if the injured persons travel in the bullock cart and if the bullock cart is in fast running position on the sloping portion of the road and if these persons automatically fall on ground in rolling position, such injuries may be possible. Considering the nature of the cross-examination, it appears to me that the defence has not challenged or disputed the injuries appeared on the person of the injured as noted by the medical officer Dr. Hegade in injury certificate Exh Nos. 45 to 48. From the evidence of the injured witnesses, it is perfectly clear that the accused used weapons i.e. axe and sticks in the crime. These weapons are deadly weapons. It also transpires in the evidence that the witness Sharad received a grievous ( 5 ) injury i.e. fracture injury as defined in Section 320 of Penal Code. Therefore, considering the evidence, it appears tome that it is for the trial Court to consider the evidence in proper way and to alter the charge in view of Section 216 (1) of Cr.P.C. in the light of the evidence on record. In my opinion, considering the evidence, there is a proof for the offence punishable under Section 325 or 326 of Penal Code, and therefore, in my opinion, it is an error on the part of the learned J.M.F.C. Indapur to appreciate the evidence in proper way and, therefore, in order to meet the ends of justice, it needs to interfere in the order of conviction and sentence passed by the learned J.M.F.C. Indapur." 6. I was also taken through the evidence and findings available on record. Having gone through the same, it is not possible to hold that the view taken by the lower Appellate Court is erroneous, warranting interference at the hands of this Court. Thus, on merits revision application fails. 7. So far as the submissions leading to applicability of Section 464 (2) (a) or (b) of the Cr.P.C. is concerned, the order of the Court below is absolutely clear which hardly needs any clarification. But, if at all it is to be clarified the Magistrate is expected to proceed ( 6 ) as per provisions of Section 464 (2) (a) of the Cr.P.C. 8. In the aforesaid view of the matter, the revision application fails being without any merits. 9. In the result, the revision application is dismissed with no order as to costs. JUDGE. JUDGE. JUDGE.