ABDUL SAJID ABDUL SADIQ Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE applicant was tried for attempt to commit murder under section 307 read with section 34 of the Indian Penal Code, along with two others. The co-accused were acquitted of the charge, but the applicant was held guilty under section 326 of the Indian Penal Code and was sentenced to R. I. for two years as also fine of Rs. 1,000/-, in default, to suffer R. I. for one month. The appellant filed an appeal before the Sessions Court and the learned Additional Sessions Judge, Washim, dismissed the appeal. The appellant challenges the concurrent findings of two courts below by filing this revision.

(2.) LEARNED Advocate for the applicant urged before me that even on admitted facts the offence as against the applicant would not fall under section 326 of the Indian Penal Code but that it would fall under section 324 of the Indian penal Code. In support of this submission, it is urged by him that P. W. 3 admits that there was scuffle between the applicant and victim Mushtaq and the injury in question is alleged to have been inflicted during the said scuffle. According to the learned Advocate for the applicant, though according to the doctor the injury in question is said to be grievous yet the prosecution through medical evidence or otherwise has failed to prove that the injury in question falls under any clause of section 320 of the Indian Penal Code. He also drew my attention to the Medical Certificate (Exh. 41) which was proved by Doctor (P. W. 5) wherein it has been clearly opined that the injury was likely to heal within ten to twelve days, if no complication occurs. No fracture was found. He, therefore, contends that the prosecution has neither been able to establish that the injured victim suffered severe bodily pain during the space of 20 days nor that he was unable to follow his ordinary pursuits for the said period. He, therefore, contends that the offence in question would fall under section 324 of the Indian Penal Code and taking into consideration that the applicant had been in custody for about six months, the said period be treated as sufficient punishment and the applicant be ordered to be acquitted of the charge under section 326 of the Indian Penal Code.

(3.) ON the other hand, learned A. P. P. appearing on behalf of the respondent/ state, has urged before me that according to the Medical Officer (P. W. 5), the injury was grievous in nature and taking into account that according to the Medical Certificate (Exh. 41), the injury would take ten to twelve days to heal; it follows that the injury in question would fall within the ambit of Clause 8 of section 320 of the Indian Penal Code. According to the learned A. P. P. , clause 8 of section 320 consists of three parts which have to be read independent of each other namely, (i) any hurt, which endangers life; (ii) any hurt which causes the sufferer to be during the space of twenty days in severe bodily pain; and (iii) any hurt on account of which the injured is unable to follow his ordinary pursuits. According to her, the expression occurring in second part of Clause 8 of section 320 namely, "during the space of twenty days" cannot be read and incorporated into the expression "unable to follow his ordinary pursuits". It is pointed out by her that the use of 'comma' after the words "bodily pain" and before the expression "or unable to follow his ordinary pursuits" makes it crystal clear that the concept of twenty days cannot be introduced or incorporated in the third part of Clause 8 of section 320 namely, "or unable to follow his ordinary pursuits".