JUDGMENT :

1. The complainant/injured has preferred this revision against the judgment and order of acquittal of the learned Judicial Magistrate First Class, Tuljapur, District Osmanabad in R.C.C. No.153 of 2000 dated 06.07.2005.

2. The applicant would be referred to as the ‘complainant’, and respondents nos.2 to 5 would be referred to as the ‘accused’ for convenience.

3. The complainant lodged the report against the accused on 07.08.2000 with Police Station Naldurg, District Osmanabad. On his report, F.I.R. No.118 of 2000, the offence under Section 324, 323, 504, 506 r/w 34 of the Indian Penal Code was registered. After investigation, a report under Section 173(2) of Cr.P.C. was submitted to the Court of Judicial Magistrate. The Judicial Magistrate, after the cognizance, framed the charges, and the accused faced the trial. The prosecution examined six witnesses in all. Thereafter, the statement of the accused under Section 313 of Cr.P.C. was recorded. After hearing the respective counsels, the impugned judgment and order has been passed.

4. Learned counsel for the complainant has vehemently argued that absolutely no reasons have been assigned for discarding the injured witnesses. The learned Magistrate did not utter a single word from the testimony of the injured, which was supported by the medical evidence. Discarding the direct evidence completely, the learned Magistrate has committed a grave error of law in acquitting the accused, observing that the investigating officer was not examined, the alleged weapons used in the crime were not seized, and Section 27 of the Indian Evidence Act has not been complied with. He would argue that the judgment written by the Court is without giving reasons. Hence, it is like a human body without a heart. Apparent errors and illegalities are on the face of the record. Therefore, the impugned judgment and order is liable to be quashed and set aside.

5. Per contra, learned counsel for the accused has vehemently argued that the non-examination of the investigating officer had materially affected the rights of the accused to prove the omissions and contradictions. In the absence of recovery of the weapons, it would be most difficult to believe the prosecution witnesses that the injuries were caused due to the weapons allegedly used in the crime. These two aspects were material to arrive at a conclusion that the accused were the author of the crime. Therefore, the learned Magistrate correctly believed the defence and did not believe the prosecution case. The slightest doubt in the criminal case gives benefit to the accused. The enmity was admittedly there. These circumstances have also been considered in the impugned judgment and order. He supported the impugned judgment and order and prayed to dismiss the revision.

6. The learned Magistrate in the judgment has given only the list of witnesses examined by the prosecution. He did not discuss a single word from the evidence of the witnesses, particularly the injured, who have directly led the evidence against the accused.

7. The learned Judge has also recorded the finding in Para 8 of his judgment that in the complaint itself, it is not mentioned that the accused, in furtherance of common intention, committed the offence in question. In the testimony of prosecution witnesses also, it is not tried to place on record or to establish that the accused, in furtherance of their common intention, have committed the offence in question.

8. The learned Magistrate seems to have misread Section 34 of the Indian Penal Code. Section 34 is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. In the case of Nandu Rastogi alias Nandji Rastoji Vs. State of Bihar, 2003 SCC (Cri.) 177, the Hon’ble Supreme Court has observed that to attract Section 34 of the Indian Penal Code, it is not necessary that each one of the accused must assault the deceased. It is enough if it is shown t