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2008 DIGILAW 1174 (BOM)

Madhu s/o. Malu Gadekar v. State of Maharashtra

2008-08-19

A.P.BHANGALE

body2008
JUDGMENT:- Applicant is absent. His counsel is also absent. When the matter was listed on 29th April, 2008, time to file detailed synopsis was extended by one week and if the synopsis was not filed within the stipulated period, it was ordered that applicant would pay Rs.750/- as costs payable to the High Court Legal Services, Sub-committee, Nagpur within a period of four weeks thereafter. Applicant has neither filed detailed synopsis within the stipulated period nor he has paid costs, as ordered. No further extension is sought and today, as aforesaid, none appears for applicant. 2. Under Section 403, Cr.P.C. it is provided that no party has any right to be heard either personally or by pleader before any Court exercising its powers of revision and it is at the option of the Court to hear the parties. Looking to the nature of challenge and indifferent attitude of the applicant, I deem it fit and proper to dispose of the revision at this stage only. Rule has already been issued in the matter vide order dated 30-8-2004. I have heard Mr. Doifode, learned APP for respondent-State and with his assistance I have gone through the judgments of Courts below and entire material available on record. 3. Applicant is original accused No.1. He came to be prosecuted for an offence punishable under Section 323 read with Section 34 of the Indian Penal Code along with one Manoj (accused No.2) and was tried by the Judicial Magistrate, First Class (Railway), Nagpur in Summary Criminal Case No.4366 of 1994. Learned Magistrate after recording evidence and hearing the parties, found applicant guilty for voluntarily causing hurt to the complainant Gaurishankar by means of stick and on conviction for an offence under Section 323, IPC, sentenced applicant to suffer simple imprisonment for one month and pay a fine of Rs.500/-, in default, to suffer further simple imprisonment for 15 days, vide judgment and order dated 4th December, 1999. 4. Applicant carried appeal against the said judgment of conviction and sentence before the learned Additional Sessions Judge, Nagpur who by the impugned judgment dated 9th August, 2004, confirmed the judgment and order of the learned Magistrate. It is in this backdrop that the applicant has preferred present revision application. 5. 4. Applicant carried appeal against the said judgment of conviction and sentence before the learned Additional Sessions Judge, Nagpur who by the impugned judgment dated 9th August, 2004, confirmed the judgment and order of the learned Magistrate. It is in this backdrop that the applicant has preferred present revision application. 5. It is set out as a ground in the memo of revision that the impugned orders suffer from lack of inherent jurisdiction, because in view of the provisions contained in Section 155(2) of the Code of Criminal Procedure, no police officer can investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial. On perusal of the impugned judgments, I find that this ground has been raised for the first time. Be that as it may, Section 460, Cr.P.C. clearly provides that if any Magistrate, not empowered by law to do, but takes cognizance under clause (a) or clause (b) of Section 190(1), Cr.P.C. and does that thing erroneously in good faith, the proceedings shall not be set aside merely on the ground of his not being so empowered and that is such an irregularity which does not vitiate the proceedings. First ground raised by the applicant, therefore, fails. 6. In the memo of revision, another ground is raised that once accused No.2 is acquitted of offence under Section 323 read with Section 34, IPC, it could not have been applied to the applicant alone since the accusation of common intention fails. This ground again must fail since under Section 34, IPC, when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. 7. Both the Courts below have discussed the evidence on record in thorough detail. P.W.1 Gaurishankar (complainant) has spoken of the incident of assault and the background. Evidence of PW-2 Varsha and PW-3 Dwangana, mother is also found reliable. Dr. Barapatre (PW-4) who had noticed lacerated injury on scalp, 4 cm x 4 cm in size upto bone and that the injured was unconscious at the relevant time. He further deposed that the said injury had direct connection with brain and the object used was blunt. Evidence of PW-2 Varsha and PW-3 Dwangana, mother is also found reliable. Dr. Barapatre (PW-4) who had noticed lacerated injury on scalp, 4 cm x 4 cm in size upto bone and that the injured was unconscious at the relevant time. He further deposed that the said injury had direct connection with brain and the object used was blunt. On appreciation of evidence - direct as well as circumstantial, the Courts below have not committed any error in convicting and sentencing the accused. The impugned conviction and consequent order of sentence is, therefore, valid, legal and proper. 8. In the result, no interference is called for in the impugned orders. Revision is accordingly dismissed. PR Bond of the applicant stands cancelled. He the taken in custody to serve out remaining sentence. Revision application dismissed.