1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR CRIMINAL APPLICATION (APPA) NO. 134/2009 (PUNDLIK JAIRAM SHENDE VS. KU. NIRMALA HARIBHAU AKHADE AND ANOTHER) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Mr. A.Z.Jibhkate, Advocate, for applicant. Mr.P.D.Randive, Advocate, for Respondents. CORAM : A.P. BHANGALE, J. DATED : JANUARY 29, 2010. Heard. By this application, the applicant prays for grant of leave under Section 378(4) of the Code of Criminal Procedure. The applicant is seeking to impugn the judgment and order dated 28.07.2009 passed in Regular Criminal Case No. 379/2000 by learned Chief Judicial Magistrate, Gadchiroli, whereby the accused/ non-applicants were acquitted of the offence punishable under Sections 323 and 504 r/w Section 34 of the I.P.C. 2. It appears that the present applicant had complained against the non-applicants/accused, complaining that on 14.10.1999, the accused Nirmla Nanasaheb Varhade, alleged that she was then 2 accompanied with accused Rajesh Nanasaheb Varhade (her son), forcibly entered the office of the first informant at about 3 p.m., and accused no. 2 abused in the name of caste and questioned as to what need was there to issue notice to his mother, banged on the table of the first informant and started giving fist blows and the accused no.2 also asked his mother (accused no.1) to beat the first informant. It is also alleged that accused no.1 had torn her blouse by her own teeth and then made a complaint against the first informant that he outraged her modesty. On 14.10.1999 the first informant lodged written report at Gadchiroli Police Station and on 18.10.1999 again wrote to the Superintendent of Police, Gadchiroli. A reminder was sent on 1.11.1999 and on 8.12.1999 complaint was lodged with the Station House Officer at Gadchiroli Police Station, but the police did not take steps to prosecute the accused on the pretext that offence was non-cognizable. Thus, private complaint was lodged on 22nd February, 2000. 3. It appears that learned Chief Judicial Magistrate issued process on the basis of accusations made in the complaint. Latter, it appears that on 16.11.2006 complainant was directed to produce evidence for the purpose of magisterial enquiry. Thus, case was numbered as Special Case No. 13/2004. Latter, the learned Additional Sessions Judge, Gadchiroli by 3 order dated 20th November, 2004 remitted the case back to the learned Chief Judicial Magistrate for magisterial enquiry under Section 202 of Cr.P.C. Thus, the learned C.J.M., who received the case, issued process for offences under Section 323 and 504 r/w Section 34 of I.P.C by order dated 3.1.2007. 4. First informant led evidence of himself and other three witnesses in support of the complaint. Learned C.J.M. Gadchiroli considered the evidence led by the complainant and witnesses in support of the complaint and expressed opinion that in examination-in- chief of 4 witnesses, there was inconsistency as none of the witnesses deposed that accused nos. 1 and 2 entered in the office of first informant together, as also the particulars of abuses were not given by any witnesses. The witnesses appears to have deposed that accused no.1 questioned the complainant as to why he is harassing by issuing notice to her. Thereupon the exchange of words took place and quarrel occurred and the accused no.1 slapped first informant and they also threatened the first informant. The learned trial Magistrate expressed his opinion that the depositions in that regard appears mischievous and exaggerated because the witnesses had not disclosed this during the course of enquiry under Section 202 of Cr.P.C. The learned trial Magistrate also considered the defence of the accused that the first informant and his witnesses are 4 deposing against the accused at the instigation of first informant. It is also revealed in the course of cross examination of witnesses that accused no.1 had lodged a complaint against first informant on the ground that first informant had outraged her modesty and on that basis police had made enquiry and when the police did not take steps, the complainant had lodged complaint in the Court. 5. So, taking into consideration the admission in the course of cross-examination, the learned trial Magistrate came to the conclusion that accused could have been falsely implicated in the case. The learned trial Magistrate did not find enough corroboration to the evidence led, to hold the accused guilty for offence punishable under Section 323 and Section 504 r/w Section 34 of I.P.C. Under these circumstances, the learned trial Magistrate acquitted the accused. 6. In support of the appeal, the learned Advocate for the appellant took me through the evidence which was led in support of the complaint and submitted that since there was consistent version of witnesses regarding slapping to the first informant, the accused ought to have been convicted and punished for offence under Section 324 and 504 r/w Section 34 of I.P.C. 7. Learned Advocate appearing on behalf of the 5 respondent submitted that this is not a case where special leave can be granted under Section 378(4) of Cr.P.C., for to entertain the appeal. 8. Learned Advocate for the non- applicant/accused submitted that the first informant and accused no.1 were at loggerheads with each other for the post of Headmaster of the school and the witnesses examined were employees of the school and therefore, were deposing against the accused. Learned counsel for the accused also submitted that the evidence was at variance with the averments made in the complaint, while in the complaint abuses were mentioned in certain specific words, but no such words were uttered or deposed by any of the witnesses during the enquiry, as also during the course of trial when the evidence was led. Furthermore, in the complaint, the complainant has alleged fist blow by the accused no.2, as also assault by accused no.1, but no word “Thapad” was mentioned in the complaint. It was introduced when evidence was led in the course of the trial. Thus, there was material variance and improvement over the averments in the complaint and the complaint which was made before the learned trial Magistrate and therefore,there is no reason or ground made out for grant of special leave under Section 378(4) of the Criminal Procedure Code. 9. It appears from the record that the case was 6 treated as if it is the case instituted on the basis of complaint through the State of Maharashtra and it appears that prosecution was conducted as a State case. The State, however, has not moved any appeal against the impugned judgment and order of acquittal, presumably because the State did not consider it as a fit case for appeal. If it was treated as a police report case, then an appeal against the order of acquittal by the complainant becomes incompetent in view of judgment reported in 1984 Cri.L.J. 1262; [Tajamul Ali Laskar vs. Abdul Raheman & others] 10. Be that as it may, unless there is glaring defect or manifest error in point of law, the High Court would not normally grant special leave as it can be granted only in exceptional cases, when judgment and order of acquittal is sought to be challenged. 11. The judgment and order of acquittal also strengthen presumption of innocence in favour of the accused and therefore, unless very substantial and compelling reasons are made out, there would be no justification for the Court to grant special leave. In the present case, it appears that learned trial Magistrate has reached the conclusion after considering the entire evidence led, as also the defence, statement made under Section 313 of Cr.P.C., and the averments made in the complaint. 7 12. Since no ground is made out for, to grant special leave under Section 378(4), the application for leave has to be rejected. The same is accordingly rejected. JUDGE Rvjalit.