IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO.260 OF 2001 CRIMINAL REVISION APPLICATION NO.260 OF 2001 CRIMINAL REVISION APPLICATION NO.260 OF 2001 Noorjanah Mubarak Dange .. Petitioner. Versus Mubarak Abdul Dange & 5 Ors. .. Respondents. Mr.Ganesh Gole for petitioner. Mr.P.B.Shah for respondent Nos.1 to 5. Mr.K.V.Saste, A.P.P. for respondent No.6 - State. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. DATED : 21st April, 2008. DATED : 21st April, 2008. DATED : 21st April, 2008. P.C.: P.C.: P.C.: 1. The revision petitioner is the original complainant and respondents 1-5 are the original accused. The petitioner filed a complaint against respondents 1-5 alleging therein that respondents 1-5 have committed an offence punishable under Sections 489-A, 323, 504, 506 r/w. Section 34 of the Indian Penal Code. Pursuant to the said complaint, C.R.No.25 of 1998 was registered with Mahabaleshwar Police Station, District Satara. The investigation was carried out and after the charge-sheet, respondents 1-5 had to face the trial in the Court of J.M.F.C. Wai, District Satara (hereinafter referred to as the learned "Trial Judge"). 2. The respondents 1-5 pleaded not guilty and claimed to be tried. At trial, on behalf of the prosecution, in all 6 witnesses came to be examined, namely; i) Noorjahan Dange- P.W.1; ii) Hasan Patel- P.W.2; iii) Yakub Chougule- P.W.3; iv) Raziya Patel- P.W.4; v) Noor Mohammad Patel- P.W.5 and Investigating Officer Rohidas Koli- P.W.6. The learned Trial Judge appreciated the evidence and by Judgement and Order dated 30.5.2001 acquitted respondents 1-5 sofar as Section 498-A r/w. Section 34 of I.P.C is concerned. It must be noted that there is no formal order acquitting the respondents 1-5 in regard to the other Sections of the I.P.C. That may not pose any serious difficulty sofar as disposal of this petition is concerned. 3. Being aggrieved by the Judgement and Order dated 30.5.2001 passed by the learned Trial Judge, the petitioner herein has filed the present revision petition. 4. I have heard learned Advocate Mr.Ganesh Gole for the petitioner and Mr.P.B.Shah for respondents 1-5 so also Mr.K.V.Saste, A.P.P. for respondent No.6 State. 5. After having gone through the entire material on record, it is seen that the learned Trial Judge has disbelieved the evidence of complainant- P.W.1 as also declined to accept the evidence of other witnesses and that the learned Trial Judge has arrived at a conclusion that the prosecution has failed to make out a case towards conviction of respondents 1-5 and that is how the learned Trial Judge passed an Order of acquittal. 6. Learned Advocate Mr.Ganesh Gole has submitted that the prosecuting agency did not issue the summons to the concerned Doctor, who had examined Noorjahan- P.W.1 in a proper manner and as a result of that, medical evidence sofar as the injuries suffered by the petitioner Noorjahan could not be brought on record and according to Mr.Gole, learned Advocate for the petitioner it has resulted in causing serious damage to the case of the prosecution and that the learned Trial Judge was impressed by the fact that in the absence of medical evidence, the Court cannot convict respondents 1-5. The learned Advocate Mr.Gole even otherwise submitted that the conclusions arrived at by the learned Trial Judge were wrong and that the revision should be allowed. 7. Learned Advocate Mr.P.B.Shah appearing on behalf of respondents 1-5 countered the submissions of the learned Advocate Mr.Gole and submitted that the learned Trial Judge has performed his job in a proper manner and no interference is required in the revisional jurisdiction of this Court and that the petition is required to be dismissed. 8. Learned A.P.P. Mr.K.V.Saste appearing on behalf of State- respondent No.6 had drawn my attention to the provisions of Section 401 of the Code of Criminal Procedure and, in particular, sub-Section 3 where it is not permissible for the High Court to convert a finding of acquittal into one of conviction. Mr.Saste had, therefore, submitted that the Court will have to consider whether the case should be remanded to the Court of learned J.M.F.C. or otherwise. Learned A.P.P. Mr.Saste had submitted that appropriate orders be passed keeping in view all the submissions. 9. After having considered the rival submissions, it is required to be noted that across the Bar, learned Advocate Mr.Gole submitted that no Appeal has been filed against the impugned Judgement and Order by the State as regards the decision of acquittal. If this is the position, this Court will have to consider the powers which can be exercised under Section 401 of the Code of Criminal Procedure and the limitations imposed vide sub-Section 3 of Section 401 would be applicable and the order of acquittal cannot be converted into an order of conviction. If this be so, the next question to be addressed by the Court is : whether on merits this is a case where a re-trial is necessary. 10. It is required to be mentioned that the prosecution has examined 4 witnesses in support of its case. The Investigating Officer was examined. It is true that the prosecution could not examine the Medical Officer, who had examined Noorjahan - P.W.1 and the reason for the same appears to be that proper summonses were not issued and or served upon the concerned Medical Officer and as such the said officer could not come before the Court. In my view, this factor by itself may not affect the question of re-trial because nothing could be pointed out by the learned Advocate Mr.Gole as to what more could be done if the case is required to be remanded for examining additional witnesses. It is required to be mentioned that the learned Trial Judge has discarded the oral testimonies of the witnesses, who have been examined on behalf of prosecution. It is nobody’s case that the learned prosecutor did not examine certain witnesses which could be considered as material witnesses. If this be so, the entire evidence having been placed before the Court except the evidence of the Medical Officer, I am of the view that no injustice is caused in the matter and certainly this is not a case where this Court should exercise its revisional jurisdiction and order re-trial in the matter. It may be true that if some attention would have been paid to the aspect of examining the Medical Officer, it would shown that P.W.1 had reported to the hospital for examination and treatment and the Medical Officer could give evidence as regards the nature of injuries suffered by P.W.1. Nothing more could be elicited from the Medical Officer and that would not have added to the weight of evidence which has already led by the prosecution during the evidence of 5 witnesses. If this be so, I am of the view that this is not a case where the Court should intervene and interfere and exercise its revisional jurisdiction and order re-trial. 11. In view of the aforesaid discussion, the petition is required to be dismissed and as such I pass the following order :- a) Petition is dismissed. (R.Y. GANOO, J.) (R.Y. GANOO, J.) (R.Y. GANOO, J.)