1 rma IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO. 155 OF 1999 Iqbal Hajimiya Dalvi ] an adult, Indian Inhabitant residing ] at Borli, Taluka Murud, Dist. Raigad. ] Applicant Vs 1. State of Maharashtra, ] 2. Amir Hajimiya Dalvi, ] 3. Tousif Amir Dalvi, ] 4. Suyeb Amir Dalvi, ] 5. Najma @ Zarina A. Dalvi, ] Nos. 2 to 5 residing at Borli, ] Taluka Murud, Dist. Raigad. ] Respondents Mr. D.J. Shejul i/b Mr. S.D. Dharmadhikari for the applicant Mr. Rajesh More, APP for respondent no. 1 None for respondent nos. 2 to 5 CORAM : SMT. V.K. TAHILRAMANI, JJ DATE : 19th APRIL, 2010 ORAL JUDGMENT.: 1. Through this appeal, the petitioner - original complainant has challenged the judgment and order dated 09.04.1999 passed by Judicial Magistrate First Class, Murud in Regular Criminal Case No. 37 of 1996. By the said judgment and order, the learned J.M.F.C. acquitted the respondents - original accused nos. 1 to 4 of the offence of section 452, 342, 504, 506(II) 324, 323 r/w 34 of I.P.C. 2.REVN155-99 2 2. The prosecution case briefly stated is that the complainant and the accused persons are closely related to each other. The petitioner and respondent no. 1 are real brothers. Respondent nos. 2 and 3 are the sons and respondent no. 4 is the wife of Respondent no. 1. The case of the petitioner-original complainant is that accused nos. 1 to 3 entered into his house and caused hurt to the complaint and his wife by means of iron rods, crowbar and by kick and fist blows. 3. I have heard the learned counsel for the parties and perused the judgment and order passed by the learned J.M.F.C. After carefully considering the matter, for the reasons stated herein below, I am of the opinion that the judgment and order passed by the learned Sessions Judge does not call for any interference. 4. As far as the offence under section 504 and 506(II) of IPC is concerned, there is absolutely no evidence on record to show that the accused persons abused and provoked the complainant or his wife or that they threatened to kill the complainant or his wife. 5. Another important aspect of this matter is that there is delay in filing the F.I.R. The incident had occurred on 2.REVN155-99 3 10.10.1996 at about 9.30 a.m., and the complaint came to be lodged on 15.10.1996. This fact raises grave doubt in the mind regarding the case of the complainant. Moreover, recovery of weapons at the hands of the accused persons has not been proved. It is also an admitted fact that there is previous enmity between the complainant and the accused persons. Enmity is a double edged weapon due to which a person can also be falsely implicated. 6. The evidence of the complainant and the witnesses is full of omissions and contradictions which goes to the root of the matter and hence, the learned Magistrate has disbelieved the testimony of the witnesses. PW1 Iqbal has deposed that accused nos. 1 to 3 entered his house by backside door but his wife PW4 deposed that accused no. 4 entered from front side door. It is pertinent to note that though PW5 and PW8 are neighbors of the complainant, they do not state that the accused nos. 1 to 4 entered into the house of complainant. They have simply deposed that accused were proceeding towards the house of the complainant. Thus, if they are neighbours, they would be in a better position to see the actual entry of accused persons in the house of complainant. In such case, the learned Magistrate was right in observing that reliance cannot be placed on the bare words of the complainant and his wife that the accused 2.REVN155-99 4 persons had entered into their house. 7. Furthermore, the case of the complainant and the witnesses appears to be that the accused persons broke the gate of the complainant. However, the spot panchanama does not support the story of the complainant. In view of the spot panchanama, the story of the complainant and other witnesses that the accused persons broke the gate of the house of the complainant and entered into the house of the complainant cannot be believed. Moreover, the independent witnesses i.e PW7 and PW8 have not deposed so i.e the accused persons broke the gate of the house of the complainant and entered into his house. 8. As far as wrongful confinement is concerned, the complainant has deposed that accused no. 4 went out of the house and locked the door from inside. However, PW4 wife of the complainant has deposed that accused no. 4 entered into their house and closed the door from inside. This is a vital and material contradiction as far as locking of the door is concerned whereby according to the complainant and his wife, they came to be confined. It is pertinent to note that it is nowhere brought on record as to who unlocked the door from outside. PW 5 and PW3 who are independent witnesses have also not deposed that the door of the house of 2.REVN155-99 5 the complainant was locked from outside. Further, it is not the case of the prosecution that backside door was closed by any of the accused. This means there was no question of confinement to complainant as well as to his wife, as alleged by them. 9. As far as, the offence punishable under sections 323 and 324 of IPC is concerned, the prosecution has specifically alleged that accused nos. 1 to 3 caused hurt to the complainant and his wife by means of iron rods, crowbar and by fist and kick blows. On this aspect also, there are material contradictions and improvements in the version of PW1 Iqbal and his wife PW4 Mehajabin. PW1 has deposed that accused no.3 beat him by fist and kick blows and by iron bars on his chest and backside. However, his wife PW4 states that accused nos. 2 and 3 gave blow of iron bars on both the shoulders of the complainant. Thus, there is material contradiction so far as actual beating by the accused are concerned. Moreover, PW4 does not state that accused nos. 2 and 3 beat PW1 by fist and kick blows. However, PW1 states that both these accused beat him by fist and kick blows. Further, PW4 has deposed that accused no. 1 pressed crowbar on stomach of her husband i.e PW1 but PW1 states that accused no.1 pressed the crowbar on his backside. PW4 has tried to improve her story by stating that when she tried to rescue 2.REVN155-99 6 her husband i.e PW1, accused no. 1 gave blow of the said crowbar on her head. Crowbar is a heavy weapon and if PW4 was assaulted by the crowbar, there should have been some injury. However, the injury certificate of PW4 does not show any injury on her head. This falsifies her testimony. Even in respect of injury sustained by PW1, there is variance between medical evidence and ocular evidence. 10. PW5 has deposed that he entered in the middle room and saw accused nos. 1 to 3 giving fist blows to complainant. The complainant as well as PW4 has not deposed about presence of PW5 at the time of alleged incident. Further PW5 deposed that accused nos. 1 to 3 took crowbar and iron rod and beat the complainant. At that time, he tried to convince the accused persons not to beat them, but meantime police reached there. This version is an absolutely new one and not supported by any of the injured witnesses i.e PW1 and PW4. Both the complainant and his wife tried to improve the story of prosecution. However, even their basic versions have not been supported by independent witnesses i.e PW5 and PW6. Looking to the material on record, I am of the view that no error can be found in the impugned judgment. Hence, revision fails. Rule discharged. [SMT. V.K. TAHILRAMANI, J.] 2.REVN155-99 7 2.REVN155-99