Order on Board

19.01.2024

1. This criminal revision is filed against the the judgment dated

02.11.2023 passed in Criminal Appeal No.24/2023 whereby learned Additional Judge to the Court of Additional Sessions Judge, Kabirdham dismissed appeal of applicant and affirmed the judgment dated 19.6.2023 passed by the Additional Chief Judicial Magistrate Kawardha, District Kabirdham in Criminal Case No.247/2020 convicting applicant under Section 323 of the Indian Penal Code, 1860 (for short 'IPC') and imposing sentence of imprisonment till rising of the Court with fine of Rs.1,000/-, in default to undergo SI for 01 month.

2. Facts of the case, in brief, are that marriage of applicant and complainant was solemnized on 25.8.2007 and from their wedlock, they have been blessed with two children. Applicant started picking up quarrels on trivial issues and harassing her mentally as well as physically. On 16.1.2020 the applicant abused the complainant and also assaulted her by means of hands and fists as a result she suffered injury on her forehead. Complainant reported the incident in concerned police station based on which FIR bearing Crime No.46/2020 under Section 323 of IPC was registered against applicant. Injured was medically examined vide Ex.P-1 and applicant was arrested. In the course of investigation, statements under Section 161 CrPC was recorded. After completion of investigation, charge sheet was filed by police against applicant, followed by framing of charge against him by the Court below under Section 498, 294, 323 & 506-II of IPC. Applicant abjured his guilt and sought for trial.

3. So as to prove complicity of accused/applicant in the crime in question, prosecution has examined as many as 10 witnesses. Statement of accused/applicant was recorded under Section 313 of the Code of Criminal Procedure, 1973 in which he pleaded innocence and false implication in the case.

4. After hearing the parties and going through the material available in record including evidence of the witnesses, learned Judicial Magistrate, while acquitting the applicant of the charges under Section 498A, 294, 506-II of IPC, convicted him under Section 323 of IPC and sentenced him in the manner as mentioned in Paragraph No.1 of this order. Applicant preferred criminal appeal before the Court of Sessions challenging his conviction, which was also dismissed by the impugned judgment.

5. Learned counsel for the applicant submits that alleged incident occurred due to trivial domestic chores, in the heat of moment and the applicant had no intention to cause voluntarily hurt. Hence, in absence of any intention to voluntarily cause hurt to the injured, it cannot be said that basic ingredient of offence under Section 323 of IPC are present for attracting this offence. He further submits that the doctor who medically examined the injured, has deposed that injuries mentioned in MLC may come from the nails of injured also, but the Courts below have completely ignored this evidence and held the applicant guilty for the offence under Section 323 of IPC. On On the same set of evidence, applicant has been acquitted by the trial Court from the charges under Section 294, 506 Part II & 498A of IPC, therefore, conviction of applicant under Section 323 of IPC based on the same set of facts and evidence is liable to be set aside in the interest of justice. There is unexplained inordinate delay in lodging FIR which also cast a serious doubt on the case of prosecution. The Courts below failed to consider that the witnesses examined in support of prosecution case are in blood relation with the injured and therefore, their testimonies ought not to have been relied upon for basing conviction of applicant.

6. In alternate, learned counsel for applicant submits that if this Court comes to conclusion that there is no perversity in the finding of guilt recorded by trial Court and affirmed by the appellate Court, then considering that applicant is the first offender, incident occurred in a sp