Ladda 1 revn-389-00.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION No. 389 of 2000. Surendra Gulabrao Ghodake ...Applicant. Versus The State of Maharashtra And Anr ...Respondents. ...... Mrs S.A.Dhamale, Advocate for the Applicant. Mrs M.R.Tidke, A.P.P. for the State. CORAM: A.R.JOSHI, J. DATED:­ 8th April, 2011. P.C. 1. Heard rival submissions on this Criminal Application No.389 of 2000 preferred by the applicant (original accused No.1) challenging the judgment and order, dated 24th November, 2000 passed in Criminal Appeal No.35 of 1999 by Sessions Judge, Nashik. 2. Prior to discussing the facts of the present matter, regarding conviction of revision petitioner for the offence punishable under sections 498­A and 323 of I.P.C. certain factual position is required to be mentioned in order to have proper perspective of the case and also in Ladda 2 revn-389-00.doc order to ascertain ­ whether the relief claimed in the present revision application can be allowed when there are concurrent decisions of both the lower Courts i.e. Judicial Magistrate at Nashik, convicting all seven accused persons in Criminal Case No.331 of 1996 vide order dated 3rd June, 1999 and decision of the Appellate Court in Criminal Appeal No. 35 of 1999 by which the conviction of the present Applicant No.1 was maintained for the offence punishable under Sections 498­A and 323 of I.P.C. 3. Prior to such narration of factual position and the import of the substantive evidence recorded before the J.M.F.C.Court Nashik, history as to dismissal of the present revision application can be narrated in short:­ 4. Earlier on 25th June, 2010 present revision application was dismissed for default and the bail earlier granted during the pendency of the criminal revision was directed to be cancelled. Thereafter, Restoration Application was preferred bearing No.257 of 2010. Said application was also dismissed for non appearance of anybody for the revision petitioner and thereafter still another application bearing No.84 of 2011 was preferred setting aside the order of original dismissal of the Criminal Revision Application No.389 of 2000 and condonation of delay of about 250 days in preferring such application for restoration. Said Ladda 3 revn-389-00.doc application for restoration bearing No.84 of 2011 is earlier allowed by a separate order and consequently the present criminal revision application is taken up for final arguments and passing of the order. 5. As mentioned above, J.M.F.C. Nashik convicted the applicant – Accused No.1 along with other co­accused i.e. earlier accused Nos. 2 to 7 for the offence punishable under Sections 498­A and 323 of I.P.C read with Section 34 of I.P.C. Present applicant was sentenced to suffer imprisonment for six months for the offence under Section 498­A and to suffer imprisonment of one month for the offence punishable under Section 323 of I.P.C. Respective fine amounts were also imposed as Rs. 1000/­ and Rs.200/­ for respective offences. Requisite punishments were also awarded against other co­accused. Being aggrieved by the said judgment and order of conviction dated 3rd June, 1999, Criminal Appeal was preferred before the Sessions Court, Nashik. It was disposed of by the order dated 24th November, 2000 by the Sessions Judge, Nashik, partly allowing the criminal appeal, thereby acquitting accused Nos. 2 to 7 and maintaining the conviction of the present applicant ­accused No.1 for both the counts i.e. offence punishable under Sections 498­A and 323 of I.P.C. In the said appellate order, it is specifically mentioned that the sentence of imprisonment of six months and fine of Rs.1000/­ was maintained for the conviction of the applicant­accused Ladda 4 revn-389-00.doc No.1 for the offence punishable under Section 498­A of I.P.C. No separate punishment was awarded so far as conviction for the offence punishable under Section 323 of I.P.C. and directions were given to refund the fine amount of Rs. 200/­ so far as conviction for the offence punishable under Section 323 of I.P.C. 6. Considering the scope of this Court, while dealing with the criminal revision application and mainly when earlier two courts have passed the concurrent orders of holding the present applicant ­ accused No.1 guilty for the offence punishable under Sections 498­A and 323 of I.P.C. it is to be ascertained whether the material as produced before the learned J.M.F.C.Court warrants interference by this Court at this stage. 7. During the trial, five prosecution witnesses were examined. Out of them, PW No.1 is panch witness regarding the house panchnama where the complainant woman and accused No.1 (her husband) were residing being the matrimonial home. Admittedly, in the same home other co­ accused Nos. 2 to 6 were also jointly staying. It is an admitted position that present applicant accused No.1 was a Police Constable during the period and it is in fact an admitted position that when the marriage between the complainant and present applicant took place on or about 26th May, 1996 there was no dowry taken from the wife. Present applicant and his wife (original­complainant) resided together in the Ladda 5 revn-389-00.doc said joint family only till 24th June, 1996 i.e. hardly for about 28 days or so. Allegedly, the incident of major assault on the wife occurred on 23rd June, 1996 and from the next day she was driven out from the matrimonial house on alleged demand of Rs.50,000/­ to be taken from the parents of the wife. It was the demand made by the present applicant accused No.1 and his other relatives including the parents and brothers of the applicant. 8. It appears that what weighed with both the Courts, i.e. the trial Court and the first Appellate Court, is the substantive evidence of P.W. No. 2 complainant woman, P.W.No.3 her mother and P.W.No.4 sister of the complainant and P.W.No.5 is the Investigating Officer. So far as the appreciation of evidence of P.W.Nos. 2, 3 and 4 is concerned coupled with the documentary evidence on Exhibit 35 i.e. a letter written by the original complainant and handed over to her brother by hand, both the Courts have given the concurrent finding as to establishment of the charges punishable under sections 498­A and 323 of I.P.C. so far as the present applicant is concerned. 9. During the argument, much is argued regarding no date or no any authentic proof as to the letter Exh.35 not sent by post or by any other mode than by hand delivery, is emphasised and it is submitted that the contents of the said letter cannot be taken shelter of in order to establish Ladda 6 revn-389-00.doc the case of the complainant. On perusal of said letter, it is the concurrent finding of both the Courts below that there was a demand of Rs.50,000/­ by present applicant accused No.1 and in fact such demand was made and also initiated from the very next day of the marriage between the parties. During the argument, it is submitted that it is unbelievable that from very next day of the marriage there could be such type of demand of Rs.50,000/­ when admittedly in the marriage no such dowry has been taken. 10. It is also argued that there is no medical evidence brought before the Court as to alleged assault on the day of the incident prior to the complainant – wife leaving her matrimonial home. It is also argued that said complainant­wife had left the house of her own and taken shelter with her parents on the premise that she wanted to have a separate residence and was not ready to live in the joint family which was apparently consisting of about six persons. It is also argued that it is a case of the prosecution witnesses i.e. complainant PW 2 and her mother PW No.3 that the said demand of Rs.50,000/­ was for the purpose of some employment of applicant accused No.1. By pointing out this, it is submitted that much earlier to the marriage said applicant accused No.1 had been in the employment of police force and as such there was no reason for getting such amount for the employment purpose. All these Ladda 7 revn-389-00.doc arguments have been dealt with by the J.M.FC.and also the Appellate Courts. The factual position cannot be over looked as to present applicant accused No.1 was then in the employment of the Police force being a Constable and there are allegations that he had given threats to PW No.2 – complainant, his wife that if at all she dared to lodge any complaint with the police he will deal with police station and would be in a position to hush up the matter. This aspect has also been dealt with by the Courts below and considering over all effect of the substantive evidence of PW Nos. 2, 3 and 4 and mainly the evidence of the complainant – wife P.W.No.2, Courts below came to the conclusion of establishment of guilt of applicant – accused No.1 for the offences mentioned. 11. During the arguments, it is also submitted that there is about one month’s delay in lodging the complaint to the police which was lodged some where by the end of July, 1996 though the alleged incident of the complainant leaving home occurred on 24th June, 1996. Again, on this aspect there is observation by the Trial Court and also the same aspect has been dealt with by the first Appellate Court. Again, the factual position cannot be over looked by this Court that the entire episode of illtreatment to complainant – wife and leaving the matrimonial house happened within a span of 28 days. It is a factual position that some Ladda 8 revn-389-00.doc where on 24th July i.e.on the same day when the F.I.R. was lodged, a letter was sent to the Superintendent of Police of the area for taking action against the present applicant accused No.1 and his other relatives apprehending danger to the life of the complainant at their hands of being burnt in the house for demand of dowry. Even the aspect of alleged delay in lodging the complaint has also been dealt with by the Courts below and in the opinion of this Court, the reasoning given as to the time taken for having a sort of reconciliation between the parties was held just and reasonable. 12. Considering the rival submissons and considering the concurrent findings of both the Courts below, in the opinion of this Court, under the revisional powers of this Court, there is nothing to interfere with the impugned judgment and order of Sessions Court, Nashik dated 24th November, 2000. 13. In the result, Criminal Revision Application is accordingly dismissed and disposed of. 14. After the pronouncement of this decision, a request is made on behalf of the applicant for stay to the present order. However, considering the circumstances of the case such request is not accepted. (A.R.JOSHI, J.)