Manoj S/O. Dadarao Adhane vs The State Of Maharashtra And ...
2017 Latest Caselaw 8025 Bom

                                                           Cri.Appln.3986/2017
                                     1

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

                    CRIMINAL APPLICATION NO.3986 OF 2017

Manoj s/o Dadarao Adhane,
Age 24 years, occu. Agri.,
R/o Viramgaon, Taluka Khultabad,
District Aurangabad                                 .. Applicant

        Versus

1.      The State of Maharashtra

2.      Raibhans/o Bavrao Adhane,
        Age 48 years, Occu. Agri.,
        R/o Viramgaon, Taluka Khultabad,
        District Aurangabad

3.      Sahebrao s/o Bavrao Adhane,
        Age 41 years, Occu. Agri.,
        R/o As above

4.      Kashibai w/o Sahebrao Adhane,
        Age 35 years, Occu. Agri.,
        R/o As above

5.      Anjalibai w/o Raibhan Adhane,
        Age 35 years, Occu. Agri.,
        R/o As above                                .. Respondents


Mr Abhishek Kulkarni, Advocate for applicant
Mr A.R. Borulkar, A.P.P. for respondent no.1


                                 CORAM : S.S. SHINDE AND
                                         A.M. DHAVALE, JJ

                                 DATE OF RESERVING
                                 THE JUDGMENT : 08.09.2017

                                 DATE OF PRONOUNCING
                                 THE JUDGMENT : 11.11.2017


JUDGMENT (Per A.M. Dhavale, J.)

1. This is an application for condonation of delay of 416 days in

preferring application seeking leave to file appeal against judgment of

acquittal under Section 302 read with Section 34 of Indian Penal Code.

Cri.Appln.3986/2017

2. Heard learned Advocate Mr Abhishek Kulkarni for the applicant

and learned A.P.P. Mr A.R. Borulkar for respondent no.1-State.

3. Learned Advocate Mr Abhishek Kulkarni argued :

(I) Father of the applicant was killed by respondents no.2 to 5 over

a dispute of land and well water. His dead body was found in a field

near the house of the accused. It is a clear case of homicidal death.

There was serious assault by accused nos.1 and 2 and son of accused

no.1 about one month before the incident. Even after acquittal, the

respondents have beaten the applicant. Hence, the facts of the case

need fresh re-appreciation by way of appeal.

(II) With regard to delay condonation, Advocate Mr Kulkarni

submitted that the applicant was not aware about his right of appeal

against acquittal and due to poor financial condition he could not

prefer the appeal in time. Learned A.P.P. has submitted that the State

has not preferred any appeal. He submitted that the delay is large

and cannot be condoned mechanically. There was no strong evidence

against the accused.

4. Learned Advocate Mr Abhishek Kulkarni relied on the judgments

in Collector, Land Acquisition, Anantnag and anr., Vs. Mst.

Katiji and ors., AIR 1987 SC 1353 and Esha Bhattacharjee Vs.

Managing Committee of Raghunathpur Nafar Academy and

ors., (2013) 12 SCC 649.

Cri.Appln.3986/2017

5. After carefully going through the record and the submissions

made at the Bar and the ruling cited, we find that there is huge delay.

The judgment was delivered on 11.4.2016 and the appeal is preferred

on 18.7.2017. In Collector, Anantnag's case (cited supra), the Apex

Court laid down that the expression "sufficient cause" should be

liberally construed so as to advance substantial justice. When the

State is a party, the Court should take into consideration the technical

requirement of obtaining sanction and slow moving of files from table

to table and and State should not be given step motherly treatment.

6. In Esha Bhattacharjee's case (cited supra), the Apex Court

took resume of the entire case law on the subject of condonation of

delay and laid down guiding principles in paragraph 21 (1) to 21 (13)

and 22 (1) to 22 (4).

7. As per ground no.21.8 (viii), distinction should be made between

inordinate delay and short delay. In case of inordinate delay, doctrine

of prejudice is attracted and one warrants strict approach.

8. Some of the grounds relevant to the facts of the present case

may be stated as follows :

"21.1 (I) There should be a liberal, pragmatic, justice- oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.

Cri.Appln.3986/2017

21.2 (ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that there terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.

21.3 (iii) Substantial justice being paramount and pivotal the technical consideration should not be given undue and uncalled for emphasis.

21.7 (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play.

21.8 (viii) There is a distinction between inordinate delay and a delay of short duration of few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.

21.9 (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.

22.2 (b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.

22.4 (d) The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters."

Cri.Appln.3986/2017

9. We rely on following principles laid down in Basawaraj v. Land

Acquisition Officer, 2013 (14) SCC 81.

" sufficient cause is a cause when a defendant could not be blamed for his absence. It means party should not have acted in negligent manner. Unless satisfactory explanation is furnished, Court should not allow the application for condonation of delay. The Court has to examine whether mistake is bona fide or was merely a device to cover an ulterior purpose."

11. The law of limitation may harshly affect a particular party but it

has to be applied with all its rigour when the statute so prescribes.

The Court has no power to extend the period of limitation on equitable

grounds. "A result flowing from a statutory provision is never an evil.

A court has no power to ignore that provision to relieve what it

considers a distress resulting from its operation". In P. Ramachandra

Rao Vs. State of Karnataka, (2002) 4 SCC 578, it is held that

"judicially engrafting principles of limitation amounts to legislating and

would fly in the face of law laid down by the Constitution Bench in

Abdul Rehman Antulay Vs. R.S. Nayak."

12. In Kumar Vs. Kamata ICU Bank, 2013 (11) SCC 668, it is

laid down that bald statements with no reasons as to non-intimation

cannot be sufficient cause. In this case, the High Court had condoned

delay of 290 days and 785 days and though the said order was not

directly challenged in appeal from the main order, the Apex Court held

that the inordinate delay should not have been condoned.

Cri.Appln.3986/2017

13. In Union Of India & Ors vs Nripen Sarma, 2013 (4) SCC

57, when the explanation given by the State for condonation of delay

of 239 days in preferring the appeal was not found satisfactory, the

delay was rightly not condoned by the High Court and the same was

upheld by the supreme Court. The applicant's contention that he was

not aware of his right of appeal and his financial condition was poor

cannot be accepted as sufficient grounds for condonation of huge

delay of 416 days. Even as per affidavit, the applicant learnt about

his right in July 2016 and for one year, he did not file appeal. If he

was poor, he should have approached the office of Legal Services

Authority. We, therefore, find that there was no sufficient cause.

14. As far as the merits are concerned, father of the applicant was

physically challenged. On the fateful night, he had gone to his field

for starting electric motor for watering the plants. The applicant and

his friend have allegedly gone to the field at 2.30 a.m. and they did

not find him there. After some time his body was found tied with

ropes and thrown into the well. The F.I.R. was filed on the next day

morning.

15. After going through the evidence, we find that accused nos.1

and 2 are brothers of the deceased. They had joint land, which was

separated by family arrangement, each getting equal share. Each of

the brothers was given share in well water for collecting water on two

days in a week. The claim that deceased wanted a partition and there

was only family arrangement cannot be a serious ground of dispute so

as to kill somebody.

Cri.Appln.3986/2017

16. As far as the quarrel dated 10.11.2008, one month before the

incident is concerned, there was no evidence to show that said quarrel

took place between deceased and accused nos.1 and 2. Besides, the

fact the accused were residing in the field, where the dead body was

found, there is no other material. It may create suspicion, but it is not

a circumstantial evidence, which will prove the offence beyond

reasonable doubt.

17. The view of learned trial Judge appears reasonable and probable

view. The facts do not warrant to neglect the delay and admit the

appeal on the ground of serious miscarriage of justice.

16. In view of above, this is not a fit case for condonation of delay.

Hence, the application is rejected. Leave refused.

       ( A.M. DHAVALE, J.)                    ( S.S. SHINDE, J.)




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