IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR.

CRIMINAL REVISION APPLICATION (REVN) NO. 117 OF 2018

1. Yogesh s/o Gajanan Sayankar, aged about 20 years, Occupation Cultivation;

2. Dhanraj s/o Shalikrao Sayankar, aged about 34 years, Occupation Cultivation.

Both R/o Padegaon, P.S. Deoli, Tahsil Wardha, District Wardha. ... APPLICANTS VERSUS The State of Maharashtra, through Police Station Officer, Police Station, Deoli, District Wardha. ... RESPONDENT ....

Shri R.M. Daga, Advocate for the applicants.

Shri S.D. Sirpurkar, Additional Public Prosecutor for respondent/State.

....

CORAM : M.G. GIRATKAR, J.

DATED : 04TH DECEMBER, 2018.

ORAL JUDGMENT :

The present revision is against the judgment of learned Additional Sessions Judge, Wardha dated 14.06.2018 in Criminal Appeal No. 47 of 2015. Both the applicants/accused were charge sheeted for the offence punishable under Section 326 read with Section 34 of the Indian Penal Code. Both were acquitted by Judicial Magistrate, First Class, Wardha in Regular Criminal Case No. 389 of 2012 vide judgment dated 11.02.2015. The prosecution has challenged the said judgment before the Sessions Court, Wardha. Learned Sessions Judge has set aside the judgment of JMFC and convicted both the applicants/accused for the offence punishable under Section 326 of the Indian Penal Code and sentenced them to suffer rigorous imprisonment for seven years. Being aggrieved by the same, present revision is filed.

2. The case of the prosecution against both the applicants in short is as under :-

Complainant Ranjana Naresh Thote lodged an oral report at Police Station, Deoli alleging that on 11.06.2012 at about 09:00 p.m., her husband Naresh went outside. Accused persons abused to her husband. Accused Yogesh caught her husband and accused Dhanraj had beaten him on his head and back by means of wooden rod (ubhari). Her husband fell down. He had sustained head injury. He was taken to the hospital. Medical Officer gave him medical treatment. On the report of Ranjana, Crime No. 66 of 2012 was registered against both the applicants for the offence punishable under Section 326 read with Section 34 of the Indian Penal Code. After completing investigation, charge sheet came to be filed. Charge was framed by JMFC. In all, nine witnesses were examined by the prosecution. Learned JMFC acquitted both the accused. But, learned Additional Sessions Judge, Wardha allowed the appeal and convicted both the applicants/accused for the offence punishable under Section 326 of the Indian Penal Code and sentenced them to suffer RI for seven years.

3. Heard Shri R.M. Daga, learned Counsel appearing on behalf of the applicants and Shri S.D. Sirpurkar, learned Additional Public Prosecutor appearing on behalf of the respondent/State.

4. Shri Daga, learned Counsel for the applicants submitted that the power of appellate Court under Section 278 is very limited. He has relied upon the judgment of the Hon'ble Supreme Court in the case of Mahendra Pratap Singh .v. State of Uttar Pradesh (reported in

2009(11) SCC, 334) and submitted that learned first appellate Court exceeded its power and wrongly convicted both the applicants. He has also pointed out the judgment of Hon'ble Supreme Court in the case of Awadhesh and another .v. State of Madhya Pradesh (reported in

1988(2) SCC, 557)

5. Shri Daga, learned Counsel has submitted that in fact prosecution has failed to prove the guilt of accused for the offence punishable under Section 326 of the Indian Penal Code beyond reasonable doubt, material omissions and contradictions brought on record create doubts about the incident. He has pointed out the evidence of PW Nos.2 and 3 and submitted that there is material contradiction between the evidence of both husband and wife. Learned JMFC has rightly considered the material omissions and contradictions and acquitted both the applicants. But, learned Additional Sessions Judge exceeded his power and wrongly convicted the applicants.

6. Though the punishment u