1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 599 OF 2004 The State of Maharashtra Appellant V E R S U S 1. Rajendra Walchand Shinde, Aged 30 years, Reside of Mohadi, Taluka Dhule, 2. Narayan Pandurang Badake, Aged 72 years, R/o Rajwade Nagar, Chalisgaon Road, Dhule, 3. Vilas Narayan Badake, Aged 29 years, R/o as above. 4. Yashwant Ramchandra Deokar, Aged 39 years, R/o Lane No. 5, Madhavpura, Dhule, 5. Gulab Shankar Gavade, Aged 74 years, R/o Mohadi, Taluka Dhule, 6. Raghu Lala Patil, Aged 44 years, Resident of Babhulwadi, Taluka and District Dhule Respondents Mr. S.G. Nandedkar, APP for the appellant / State Mr. B.R. Warma, Advocate for respondents No. 1,2,3 and 6 Mr.S.P. Chapalgaonkar, Advocate for respondent No.5 WITH CRIMINAL REVISION APPLICATION NO. 380 OF 2004 Mahadeo s/o Dnyanoba Vibhute, Aged 65 years, Occupation Business, Rsident of Behind Manohar Talkies, Dhule, Taluka and District Dhule Appellant V E R S U S 1. The State of Maharashtra, 2. Rajendra Walchand Shinde, Aged 36 years, Reside of Mohadi, Taluka Dhule, 3. Narayan Pandurang Badake, Aged 69 years, R/o Rajwade Nagar, Chalisgaon Road, Dhule, 4. Vilas Narayan Badake, Aged 26 years, R/o as above. Respondents 2 5. Yashwant Ramchandra Deokar, Aged 36 years, R/o Lane No. 5, Madhavpura, Dhule, 6. Gulab Shankar Gavade, Aged 71 years, R/o Mohadi, Taluka Dhule, 7. Raghu Lala Patil, Aged 44 years, Resident of Babhulwadi, Taluka and District Dhule Mr. C.R.Deshpande, Advocate for the applicant Mr. S.G. Nandedkar, APP for the respondent No.1 / State Mr. B.R. Warma, Advocate for respondents No. 2,3,4 and 7 Mr.S.P. Chapalgaonkar, Advocate for respondent No.6 CORAM : A.V. NIRGUDE, J. DATED : 31st August, 2010 ORAL JUDGMENT : 1. Both these proceedings can be disposed of by a common judgment/order, because they both challenge the Judgment and order passed by the learned III Adhoc Assistant Sessions Judge, Dhule, acquitting the respondents/accused in Sessions Case No. 32 of 2003. The respondents were accused of offences punishable under Sections 395, 427, 442 read with Section 120-B of the Indian Penal Code. 2. The alleged offence took place on 12th January, 1998, at about 02.30 pm. It is alleged that the respondents/accused came to the complainant’s restaurant and they demolished the structure made of walls and tin-shed roof, at broad day light, in presence of the witnesses. It is alleged that they took away the articles such as ceiling fan, furniture etc from the spot. It is alleged that the complainant went to police on 19th January, 1998, for lodging a complaint of the incident, but police refused to take cognizance. It is alleged that the complainant then made a complaint of the incident to the Superintendent of Police of the district, but he too did not take any action. Thereafter, the complainant came to Criminal Court and filed his criminal complaint on 5th March, 1998. The learned Magistrate 3 referred the case to the police for investigation. After investigation was carried out, the police filed charge-sheet against the respondents/accused. The prosecution examined as many as seven witnesses. But, the learned Judge of the trial Court refused to believe the case of the complainant that there existed a structure, in which he ran the business of restaurant, and that on 12th January, 1998, the respondents/accused demolished it. 3. During the trial, the complainant made an attempt to file before the trial Court a document. This was a certified copy of a Judgment of the Civil Court in Regular Civil Suit No. 143 of 1997. It had so happened that earlier to the alleged incident, the parties contested a litigation in the Civil Court, where the complainant was plaintiff and he sought perpetual and mandatory injunction against the respondents/accused that they, on one hand, should not disturb his possession of the plot of land on which he had constructed a building, in which he ran business of restaurant, and, since the structure was demolished by the respondents/accused, a mandatory injunction was sought against them that they should restore the structure as it was earlier. Admittedly, the Civil Court partly decreed the suit and prevented the respondents/accused from disturbing the complainant’s possession of the suit property, but the Civil Court refused to pass a direction against the respondents that they should restore the demolished structure of restaurant. In that Judgment, the learned Civil Judge, Junior Division, inter alia held that the respondents/accused were responsible for the demolition of the suit building. The learned Judge of the trial Court refused to take this document on record. The learned Advocate appearing for the revision-applicant rightly pointed out that this order refusing to take the document on record was erroneous. In my view too, the learned Judge of the trial Court should have allowed the application and allowed the document to come on record. However, this order passed 4 by the learned Judge of the trial Court would not make much difference to the ultimate outcome of the Criminal Case. This document was not collected as a piece of evidence at the time of investigation. This should have been done by the Investigation Officer. He should have put this document on record along with the charge-sheet. This indeed was a relevant circumstance in support of the complainant’s case. However, failure of the Investigation Officer to bring this piece of evidence before the Court, would not make much difference to the ultimate appreciation of the prosecution case. The learned Advocate appearing for the revision-applicant asserted that in view of the failure of the Investigation Officer to take this document on record and to file it along with the charge-sheet amounted to faulty investigation, and so, the learned Judge of the trial Court could not have held that there was no evidence on record in favour of the complainant’s case. This submission is not acceptable. If one takes a bird's eye view of the prosecution evidence, the real cause for failure of the prosecution to prove its case, is seen to be the delay that has occurred in reporting the case to the Court, which, in turn, directed police investigation. Had the complainant lodged his private complaint soon after the incident, there was possibility that the learned Magistrate could have directed the investigation by the police under Section 156 (3) of Code of Criminal Procedure, and, in that case, the police could have inspected the scene of offence and could have noticed freshly demolished structure at the spot, shown by the complainant. In addition to this, they could have recorded statements of witnesses to the incident. Due to the fact that the investigation started belatedly after 5th March, 1998, when the police inspected the spot of occurrence, they found old remnants of walls and plinth. This circumstance is brought on record through the scene of offence panchnama, but this circumstance was not useful for corroborating the accounts of eye witnesses. The learned Judge of the trial Court 5 apparently did not commit any error in disbelieving the case of the complainant and the witnesses. I do not find any reason for granting leave to file appeal to the State and also admit the revision i. e. filed against the complainant challenging the impugned Judgment. Both the proceedings stand dismissed. ( A.V. NIRGUDE, J. ) SRM/criapl/599/04/31810/ok