Abarao S/O Kashiram Ingle vs The State Of Maharashtra Thr. ...
2017 Latest Caselaw 3739 Bom

Judgment

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                                            1

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

      CRIMINAL REVISION APPLICATION NO.61 OF 2016

Abarao s/o Kashiram Ingle,
Aged about 52 years, Occupation
Service, R/o Dhanraj Nagar,
Badnera Road, Near Gopal Nagar,
Amravati.                                                        ..... Applicant.

                                   ::   VERSUS   ::

1. The State of Maharashtra,
Through Police Station Officer,
Gadgenagar, Taluka and District
Amravati.

2. Rajendra Mahadeorao Pakhan,
Aged : 41 years, Occupation : Driver, R/o
Post Murha Devi, Taluka Anjangaon,
District Amravati.                                  ..... Non-applicants.

================================================================
           Shri Abhay Sambre, Counsel for the applicant.
           Shri A.J. Mirza, Counsel for non-applicant No.2.
================================================================


                                CORAM : V.M. DESHPANDE, J.

                                DATE     : JUNE 29, 2017.




                                                                                   .....2/-





 Judgment

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ORAL JUDGMENT

1.              Rule.    Rule  is   made  returnable  forthwith.   Heard

finally by consent of learned counsel Shri Abhay Sambre for

the applicant and learned counsel Shri A.J. Mirza for non-

applicant No.2.

2. Learned counsel Shri Abhay Sambre for the

applicant submits that the present applicant was complainant

in Regular Criminal Case No.489 of 2010 in which present

non-applicant No.2 was prosecuted for the offences

punishable under Sections 353, 504, and 506 of the Indian

Penal Code. He submits that vide judgment and order of

acquittal dated 27.6.2014, the Trial Judge acquitted non-

applicant No.2. He further submits that the fact of acquittal

was not within the knowledge of the present applicant, who

was posted at the relevant time at Gondia due to his transfer.

.....3/-

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He submits that he got knowledge about acquittal only in the

last week of January 2015. As soon as he gathered the

information regarding acquittal, he immediately applied for

the certified copy and record shows that the certified copy

was applied on 31.1.2015 and the said was received by the

applicant on 3.2.2015 and immediately i.e. on 16.2.2015 he

preferred an appeal along with an application for

condonation of delay giving these details. His application for

condonation of delay was contested by non-applicant

No.2/original accused by filing his reply at Exhibit 8 and he

contested contentions raised by the present applicant.

Learned Judge of the Court below, vide order dated 15.3.2016,

rejected the application filed on behalf of the present

applicant i.e. Other Miscl. Criminal Application No.11 of 2015

and thereby refused to condone the delay.

.....4/-

Judgment

revn61.16 17

Hence, the present revision.

3. Learned counsel Shri A.J. Mirza for non-applicant

No.2 submits that no satisfactory reason is given by the

present applicant for condonation of delay. He submits that

learned Judge of the Court below has correctly exercised the

discretion in favour of non-applicant No.2 and, therefore, the

present revision be rejected.

4. From the impugned order it is clear that the

present applicant, who is a first informant, engaged services

of a private lawyer to assist the prosecution. That shows that

the present applicant was diligent in prosecuting his cause. It

is also not in dispute that during the pendency of the Trial i.e.

Regular Criminal Case No.489 of 2010, the present applicant,

who was Assistant Superintendent of Posts at Amravati, was

transferred to Gondia on 27.12.2010 and as such he was not

.....5/-

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revn61.16 17

available at Amravati. On affidavit, a statement was made

before the Lower Appellate Court that the counsel, who was

engaged by the present applicant, failed to inform the

outcome of the Trial to him.

5. Normally, the Court should be very slow in

exercising the discretion for condonation of delay application

in case the accused are acquitted by learned Judge of the

Court below. However, in this case, I notice a peculiar fact

that PW2, who was examined by the prosecution, is the wife of

non-applicant No.2 and in fact she has deposed against

present non-applicant No.2 that he tried to make an assault

on the complainant by means of scissor in the post office.

Worth to note that the wife of non-applicant No.2

was also discharging her duties in the post office at the

relevant time. Learned counsel has placed on record

.....6/-

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judgment and order of acquittal for my perusal and the same

is taken on record and marked as Annexure-X for the

purposes of identification.

6. Perusal of the same, in my view, shows that

learned Judge of the Court below, while acquitting non-

applicant No.2, has not appreciated the prosecution evidence

in its true perspective.

7. In that view of the matter, delay of 6 months in

filing the criminal appeal against acquittal before the Court

below is hereby condoned. The Lower Appellate Court is

directed to register the criminal appeal filed on behalf of the

present applicant challenging judgment and order of

acquittal. However, it is made clear that the observations

made by this Court should not be taken into account while

deciding the said criminal appeal and the Lower Appellate

.....7/-

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Court should decide the criminal appeal on its own merits in

accordance with law.

8. With these observations, the present criminal

revision application is allowed. Rule is made absolute in

aforesaid terms. There shall be no order as to costs.

JUDGE

!! BRW !!

...../-