Bombay High Court
Abidbee Gayaskha Patve vs Gayaskha Subhankha Patve & Ors on 26 September, 2016
Bench: N.W. Sambre
363.03crvn
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL REVISION APPLICATION NO.363 OF 2003
Abidabee w/o Gayaskha Patve,
Age: 35 years, Occ: Household,
R/o. Kazipura, Patve lane,
Shahada, Dist. Nandurbar. ..APPLICANT
VERSUS
1.
Gayaskha s/o Subhankha Patve,
Age: 32 years, Occ: Labourer,
2. Iliyaskha Subankha Patve,
Age: 30 years, Occ: Labourer,
3. Subhankha Umankha Patve,
Age: 65 years, Occ: Labourer,
All are R/o Chalisgaon Car Repairs
Madik Nagar, Near Bombay bakery,
National High Way No.6,Jalgaon,
Tq. Dist. Jalgaon.
4. The State of Maharashtra. ..RESPONDENTS
Mr P.B. Patil, Advocate for applicant;
Mr G.V. Wani, Advocate for respondent Nos. 1 to 3;
Mr C.V. Dharurkar, A.P.P. for respondent No.4
CORAM : N.W. SAMBRE, J.
DATE : 26th SEPTEMBER, 2016
ORAL JUDGMENT :
PW-1 Abedabi, who is examined at
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Exhibit-46, claims to be serving in National High
School, Shahada since 1979 and was married to
Gayaskha on 2nd December, 1987 at Shahada.
2. There was demand of money and illtreatment
by the accused persons, resulting into registration
of crime for an offence punishable under Sections
498-A, 506(II), 323 read with Section 34 of the
Indian Penal Code.
3. PW-4 P.S.I. Abdullasha Chandsha Conducted
the investigation in the matter and filed charge
sheet. The charge came to be framed at Exhibit-20
as against the accused persons and since the
accused persons pleaded not guilty, faced the
trial.
4. Learned Judicial Magistrate, First Class,
Shahada vide his judgment and order dated 2nd
September, 1995 convicted all the accused for an
offence punishable under Sections 498-A, 506(II),
323 read with Section 34 of the Indian Penal Code,
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sentencing them to suffer simple imprisonment for
three months and to pay fine of Rs.1000/- each, in
default to suffer simple imprisonment for 15 days.
5. The respondents-accused, feeling aggrieved
thereby, preferred the appeal before learned
Additional Sessions Judge, Shahada being Criminal
Appeal No. 19 of 1998. The said appeal came to be
allowed vide judgment and order dated 7th August,
2003 acquitting the respondents-accused. As such,
present criminal revision application by the
complainant.
6. Heard Mr. Patil, learned Counsel for the
applicant. While assailing the judgment of
acquittal, learned Counsel would submit that the
findings recorded by learned lower appellate Court
of acquittal calls for interference, particularly
when the incorrect observations are recorded by
learned appellate Court, particularly in regard to
testimony of PW-1 complainant Abedabi in regard to
complaint dated 29th April, 1990. He would submit
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that the alleged incident is dated 19 th April, 1990
and the complaint was lodged on that very day.
According to him, if the evidence of PW-4 PSI
Abdullasha Chandsha, the Investigating Officer, is
appreciated, he has in categorical terms stated
that on 20th April, 1990 when he was on duty, he
received the complaint from the complainant PW-1 at
Exhibit-37 resulting into registration of crime in
question. According to him, the spot panchnama at
Exhibit-57 also speaks of voluminous about the fact
of lodging of the complaint at Exhibit-37
immediately after the incident dated 19th April,
1990. According to him, as such ground of delay as
has been taken shelter of by learned Sessions Judge
in the matter of lodging first information report
is incorrect finding and as such, the judgment is
required to be upset.
7. Mr. Wani, learned Counsel for the
respondents-accused would submit that the findings
recorded by learned lower appellate Court does not
call for any interference as according to him,
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Exhibit-37 from the original record depicts to be
an application for exemption moved by the accused
persons. He would then submit that Exhibit-47 is
copy of the complaint and perusal thereof reflects
that same was tendered on 29th April, 1990 and as
such, the Court below has rightly appreciated the
same while acquitting the accused. In addition, he
has invited attention of this Court to the findings
recorded by learned trial Court on the said issue.
8. Having considered the submissions in
analytical manner and having perused the original
record, it could be observed by naked eyes that
Exhibit-37 appears to be the application moved by
the accused for grant of exemption from personal
appearance during the trial. Exhibit-47 appears to
be complaint lodged by complainant, which is dated
29th April, 1990. The alleged incident is dated
19th April, 1990. Admittedly, there is no
explanation as to why there is delay of more than
eight days in lodging the first information report.
Perusal of evidence of PW-1 depicts that she has
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waited after the incident so as to have
consultation with her mother and as such,
thereafter she lodged complaint.
9. If the evidence of PW-4 tried to be co-
related with that of PW-1, the fact remains that
Exhibit-57 spot panchnama was drawn by PW-4 on 29 th
April, 1990 i.e. after first information report
came to be registered. So far as Exhibit-47 the
complaint as is reflected in the evidence of PW-4
to be a complaint, in my opinion, the contents of
complaint Exhibit-47 will prevail, as Exhibit-37 is
an exemption application as is apparent from the
record.
10. In view of above, the findings of
acquittal recorded by learned Additional Sessions
Judge does not call for any interference,
particularly when the issue of delay in lodging the
first information report is very much weighed
before the learned Sessions Judge in granting
acquittal. No case for interference in revisional
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jurisdiction is made out. As such, criminal
revision application fails and stands rejected.
(N.W. SAMBRE, J.)
Tupe
