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.39 OF 2001 CRIMINAL REVISION APPLICATION NO.39 OF 2001 CRIMINAL REVISION APPLICATION NO.39 OF 2001 Sunil Malhar Jadhav .. Petitioner. Versus 1. Popat Sopan Jadhav 2. The State of Maharashtra .. Respondents. Mr.K.B.Sonwalkar for petitioner. Mr.Milind Deshmukh for respondent No.1. Mr.K.V.Saste, A.P.P. for respondent No.2 - 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. Heard Mr.K.B.Sonwalkar for the petitioner, Mr.Milind Deshmukh for respondent No.1 and Mr.K.V.Saste for respondent No.2 - State. 2. The petitioner had filed F.I.R. with Natepute Police Station, District Solapur on 17.4.1998 against the respondent No.1 in regard to certain incident alleged to have taken place on the night of 16.4.1998. The said F.I.R. was investigated and crime was registered against respondent No.1 being C.R.No.27 of 1998 under Sections 323, 225, 504 and 506 of the Indian Penal Code. The respondent No.1 pleaded not guilty for the charges which came to be framed by the learned J.M.F.C., Malshiras, District Solapur (hereinafter referred to as the learned "Trial Judge"). The learned Trial Judge permitted prosecution to examine the witnesses and the prosecution examined Mr.Sunil Jadhav-P.W.1, the complainant Mr.Dattatraya Jadhav-P.W.2 and Mathura Jadhav-P.W.3 as the eye witnesses. Rest of the witnesses are in the nature of Panchas and the Investigating Officer. After appreciating the evidence on record, the learned Trial Judge by his Judgement and Order dated 8.12.2000 acquitted respondent No.1 in regard to the charges for which he had to face the trial. Being aggrieved by the Judgement and Order dated 8.12.2000, the complainant-petitioner has filed this revision. 3. I have heard learned Advocate Mr.Sonwalkar for the petitioner and learned Advocate Mr.Deshmukh for respondent No.1. According to learned Advocate Mr.Sonwalkar, the learned Trial Judge did not appreciate the evidence in the proper perspective and, therefore, delivered the Judgement and Order which has resulted into miscarriage of justice and that it would be open for this Court in its revisional jurisdiction to remand the matter to the learned Trial Judge for re-appreciation of evidence and decision in accordance with the provisions of law. 4. According to Mr.Sonwalkar, the evidence of Mr.Sunil Jadhav - complainant and the other two eye witnesses ought to have been accepted by the learned Trial Judge, particularly, when the medical evidence supported the case of the prosecution. According to him, the learned Trial Judge considered the evidence of Mr.Dattatraya Jadhav-P.W.2 and Mrs.Mathura Jadhav-P.W.3 as interested witnesses without there being any material to style them as interested witnesses. Mr.Sonwalkar submitted that the learned Trial Judge erred in arriving at a conclusion and, therefore, the case is required to be remanded to the Court of J.M.F.C., Malshiras for hearing the arguments afresh and decision in accordance with law. 5. Learned Advocate Mr.Deshmukh submitted that no interference is required in the revisional jurisdiction. Learned Advocate Mr.Deshmukh submitted that prosecution has not been able to explain the delay in filing of the F.I.R. According to him, the delay of about 12 hours is fatal to the case because there is no reason for the complainant - Sunil to be away from the police station or even go to the hospital. He pointed out that the patient came to the hospital at about 10.15 a.m. on 17.4.1998. According to Mr.Deshmukh, this delay has not been reasonably explained and the explanation tendered by the petitioner that the petitioner apprehended further damage, cannot be accepted because Mr.Dattatraya-P.W.2 and Mrs.Mathura-P.W.3 were in the company of the petitioner. My attention is also drawn by Mr.Deshmukh as regards the possibilities, which have been accepted by the Medical Officer as regards the manner in which these injuries the complainant suffered. He submitted that the suggestions given by the cross-examiner as regards the circumstances under which the injuries could be suffered have been duly accepted by the Medical Officer and, therefore, the defence has been able to bring about the circumstances to show that the case of the prosecution is required to be seen with doubt He, therefore, submitted that no interference is required in the revisional jurisdiction of this Court. 6. I have considered the rival contentions. It is not the case of the petitioner that any particular witness, who was material has been left over. In all three witnesses gave their evidence. However, the delay in filing F.I.R., in my view, is fatal to the present case. According to Mr.Sunil - complainant, the incident is said to have taken place on the night of 16.4.1998 and the complainant did not approach the hospital authorities or the police authorities soon after the incident. But the complainant visited the hospital at about 10.15 morning of 17.4.1998 i.e. next date. The complainant went to the police station on 17.4.1998 and after YADI was given, the complainant was sent for medical treatment. The complainant in the examination-in-chief had stated that at night, the accused was sitting on the road and, therefore, under the apprehension, he did not go to the police station. It is difficult to accept as to the stand taken by the complainant in that behalf and it is difficult to know as to why the complainant apprehended about the presence of the accused on the road, particularly, when the incident had not taken place in front of his house. The evidence of Mr.Dattatraya P.W.2 as well as Mrs.Mathura-P.W.3 respectively if perused clearly goes to show that after the incident, Dattatraya P.W.2 and Mrs.Mathura P.W.3 intervened and rescued the petitioner from the clutches of respondent No.1. If this be so, in the normal course, the petitioner could have gone to the police station to lodge the complaint. In my view, the learned Trial Judge has rightly considered the question of delay against the petitioner. 7. Sofar as nature of injuries suffered by the petitioner he seems to have suffered fracture in his left hand as also contusions to his left arm, contusions to his left thigh and tenderness to his right thigh and to his back. The medical officer has admitted that if the person falls from the height on the ground on hands, injury No.1 i.e. fracture to the left hand is possible. He has further stated that if the person falls on the road while he was running, injury No.4, 5 and 6 i.e. tenderness to right thigh and to back are possible. This will go to show that some explanation is sought to be put by the respondent No.1 as regards the injuries which are suffered by the victim. 8. If one considers the nature of injuries suffered by the petitioner - P.W.1, it would go to show that more than one stroke must have been inflicted upon the petitioner by the perpetrator of the crime. If this be so, it would be necessary to see the evidence of Mr.Dattatraya-P.W.2 as to the manner in which the incident is said to have taken place. Evidence of Mr.Dattatraya would go to show that he observed petitioner and respondent No.1 quarrelling and further observed that respondent No.1 assaulting the petitioner on the left hand by stick. He admits that at that time, he and his mother intervened. If this be so, it would clearly go to show that sofar as evidence of Mr.Dattatraya is concerned, it restricts itself to one specific blow said to have been given by respondent No.1. Same is the quality of the evidence given by Mrs.Mathura P.W.3. P.W.3 alleges that respondent No.1 assaulted petitioner on the left hand by stick and she and Dattatraya intervened and rescued the petitioner. If this be so, the picture which is painted by two eye witnesses Dattatraya-P.W.2 and Mrs.Mathura-P.W.3 would go to show that only one stroke came to be given by the respondent No.1 to the petitioner. Now, we turn to the evidence of Sunil- the petitioner. Sunil alleges that respondent No.1 also beat him on the left wrist, on his left leg, on his back below shoulder and on the stomach. If this is perceived in the wake of evidence of other two eye witnesses, namely; Dattatraya P.W.2 and Mrs.Mathura P.W.3, it would go to show that Sunil has levelled allegations against the respondent No.1 so as to say that more than one blow was given by respondent No.1 to Sunil. This, in my view, is a serious contradiction which clearly goes to show that when the victim alleges that more than one blow was given but the eye witnesses speak of a different picture and restrict themselves to the level of giving one blow to the respondent No.1. 9. This fact is a serious infirmity in the evidence of prosecution as a whole. 10. Enough material is placed before the Court through the important witnesses, namely; Sunil-complainant P.W.1, Dattatraya- P.W.2 and Mrs.Mathura- P.W.3 to show that there was an enmity between the petitioner and respondent No.1. If this be so, the chances of false implications by the petitioner of respondent No.1 cannot be ruled out by taking the assistance of Dattatraya-P.W.2 and Mrs.Mathura- P.W.3. 11. In substance, the entire case was considered by the learned Trial Judge and he ultimately arrived at a final finding that the prosecution has failed to make out a case beyond the shade of reasonable doubt to show that the respondent No.1 committed offence alleged against him. In my view, the final conclusion arrived at by the learned Trial Judge cannot be faulted with. The learned Trial Judge has no doubt branded P.W.2 and P.W.3 as witnesses as relatives of the complainant and styled them as interested witnesses. The learned Trial Judge has not discussed the quality of the evidence led by Dattatraya P.W.2 and Mrs.Mathura P.W.3. 12. For the reasons mentioned aforesaid, the learned Trial Judge was right in discarding the evidence of prosecution as a whole. 13. Thus, it is required to be noted that these proceedings are in the nature of a criminal revision against the order of acquittal where the petitioner had the benefit of placing his case before the Court through the learned prosecutor and the accused had to face trial. The learned Advocate Mr.Sonwalkar submitted that this Court in its revisional jurisdiction has a power to remand the matter to the Court below and call upon the learned Trial Judge to re-appreciate the evidence and consider the matter afresh. True, that in a given case, no such power can be exercised by this Court in its revisional jurisdiction. However, for that, a serious lacuna, infirmity is required to be shown by the petitioner so as to say that the entire job done by the learned Trial Judge is so patently wrong that the impugned order of acquittal deserves to be set aside and the matter may be remanded to the Court below for re-appreciation of the evidence. In my view, the nature of evidence placed before the Court, it is not required that the matter should be remanded to the Court below for re-consideration. The ultimate conclusion arrived at by the learned Trial Judge cannot be treated as illegal or improbable and that no interference is required in the impugned order. 14. For the reasons mentioned above, I am of the view that no interference is required in the impugned order and that the revisional powers of this Court need not be exercised to set aside the impugned order of acquittal. Hence the following order :- a) The petition is dismissed. (R.Y. GANOO, J.) (R.Y. GANOO, J.) (R.Y. GANOO, J.)