1. The revision is filed against the judgment and order of appeal No ...

-1-revn280.00IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL REVISION APPLICATION NO. 280 OF 2000Nandabai w/o Popatrao Warat,Age 41 years, Occ. Household,R/o. Kedgaon, Tq. Nagar,District Ahmednagar...Petitioner(Ori. Complainant)Versus1. Maruti Gopala Mehetre,Age 36 years, Occ. Service,R/o. Kedgaon, Tq. NagarDistrict Ahmednagar2. State of Maharashtra(Notice be served on the PublicProsecutor, High Court of BombayBench at Aurangabad)(Ori. Accused)...Respondents.....Mr. A.B. Gatne, advocate for the petitionerMr. U.S. Malte with Mr. R.B. Dhaware, advocates for respondent No.1Mr. N.R. Shaikh, A.P.P. for respondent No.2.....JUDGMENT :-CORAM : T. V. NALAWADE, J.DATE OF RESERVINGTHE JUDGMENT : 18.10.2012DATE OF PRONOUNCINGTHE JUDGMENT : 25.10.20121. The revision is filed against the judgment and order of appealNo.9 of 1991 which was pending in the Court of Additional SessionsJudge, Ahmednagar. The judgment and order of J.M.F.C.Ahmednagar delivered in R.C.C. No. 158 of 1988 is modified by the

-2-revn280.00appellate court and the conviction and sentence given to therespondent-accused is converted from the offence punishable underSection 325 of I.P.C. to one punishable under Section 323 of I.P.C.Further the accused is sentenced to pay fine only. This decision ischallenged by the original complainant in the present proceeding. Bothsides are heard. This Court has perused the original record.2. Learned advocate for the petitioner made a prayer for convertingthe present proceeding to criminal appeal. He submitted that in viewof the provisions of section 401(5) of Cr.P.C. such conversion ispossible. He submitted that by the amendment made to Section 372of Cr.P.C. the right is given to the victim to file such appeal, and so,such conversion is possible. This submission is opposed by the otherside.3. For the petitioner, reliance was placed on Articles 20 and 21 ofthe Constitution of India. It was submitted that the procedural law canbe given retrospective effect and accused has no right in respect ofprocedure which can be followed in criminal case filed against him.On this port, both sides have cited some reported judgments.4. In the case reported as AIR 1927 Privy Council 242 (DelhiCloth and General Mills Vs. Income Tax Commissioner and

-3-revn280.00another), the Privy Council has laid down that the provisions touchingexisting right are not ordinarily retrospective. The term “existingrights” is explained by Privy Council and it is laid down that if due toapplication of amended provisions, the law would deprive all theexisting finality of orders which, when the statute came into force, werefinal, are provisions which touch existing rights. In the case reported as2010 (12) SCC 599 (National Commission for Woman vs. State ofDelhi and another) the Apex Court, in para 8, has made followingobservations:-“8. Chapter XXIX of the Code of Criminal Procedure deals with“Appeal(s)”. Section 372 specifically provides that no appeal shalllie from a judgment or order of a criminal court except as providedby the Code or by any other law which authorizes an appeal. Theproviso inserted by Section 372 (Act 5 of 2009) with effect from31.12.2009, gives a limited right to the victim to file an appeal in theHigh Court against any order of a criminal court acquitting theaccused or convicting him for a lesser offence or the imposition ofinadequate compensation. The proviso may not thus be applicableas it came in the year 2009 (long after the present incident) and, inany case, would confer a right only on a victim and also does notenvisage an appeal against an inadequate sentence. An appealwould thus be maintainable only under section 377 to the High courtas it is effectively challenging the quantum of sentence.”The other side placed reliance on the case reported as 2012 (4)Mh.L.J. 760 (Babu Uligappa Batteli vs. State of Maharashtra &

-4-revn280.00Ors). This Court, Division Bench has squarely dealt with the pointinvolved in the present case and it is observed by this Court thatamendment to Section 372 of Cr.P.C. came into force on 31.12.2009and as it has created substantive right in favour of victim, the saidprovision cannot apply retrospectively, as there is no provision madeto make the application retrospective.5. It was submitted for the petitioner that question involved was theright of third party in the case of National Commission for Woman(cited supra) and the Apex Court has not squarely dealt with the pointinvolved in the present case. This Court holds that there is no force inthis submission. The observations made by the Apex Court which arequoted already, show that they are on two points. The point ofretrospective application of this provision, proviso to Section 372 ofCr.P.C. is also discussed by the Apex Court. These observations arebinding on this Court.6. By citing the case reported as 2005 Cr.L.J. 3071 SC (PratapVs. State of Jharkhand), submissions were made for the petitionerthat in criminal law in many cases, retrospective operation is giveneven when the right is created. In this reported case, the provisions ofJuvenile Justice Act 2000 are discussed by the Apex Court. The ApexCourt has laid down that this provisions need to be used for the benefit

-5-revn280.00of Juveniles, the persons who had not completed 18 years of age, onthe date of enforcement of the Act viz. 1.4.2001, and so even in somepending cases to which this condition applies, the amended provisioncan be used. In view of this observation of the Apex Court, it can besaid that when the amendment is intended to mollify the rigorous ofcriminal law and particularly when such provisions are in favour of thejuveniles, it needs to be presumed that this provision is in the interestof society. It does not affect the right of the person, against whomallegations are made, as the provision is in his favour. This courtholds that such interpretation is not possible in the present case. Theoriginal complainant is requesting for retrospective application andretrospective application is bound to affect the rights of the accused forthe discussion already made and also for the discussion which is beingmade later on.7. The case reported as 2010 Cri. L.J. 3751, Andhra PradeshHigh Court (Mohit Yadam & Anr. vs. State of Andhra Pradesh &Ors) was also cited for the petitioner. In this case, the provisions ofDomestic Violence Act 2005 are discussed by the High Court. It isobserved that in view of definition of “Domestic Violence” given inSection 2(q), previous incidents of domestic violence are coveredunder the Act. It needs to be kept in mind that the provisions ofDomestic Violence Act have no direct penal consequence of conviction

-6-revn280.00and sentence as provided in Article 20 of the Constitution of India andso such interpretation is possible.8. The powers of this Court of revision under Section 401 ofCr.P.C. are very limited. The powers are discussed by the Apex Courtin the case reported as AIR 1951 SC 196 (D. Stephens vs.Nosibolla). In subsequently decided cases, the powers are discussedin more particulars when the powers are invoked by the privatecomplainant against the order of acquittal. In the case reported asAIR 2010 SC 1140 (Sheetala Prasad and others Vs. Sri Kant andAnr.) the Apex Court has laid down as follows:-“Without making the categories exhaustive, revisionaljurisdiction can be exercised by the High Court at the instance ofprivate complainant (1) where the trial Court has wrongly shut outevidence which the prosecution wished to produce, (2) where theadmissible evidence is wrongly brushed aside as inadmissible, (3)where the trial Court has no jurisdiction to try the case and has stillacquitted the accused, (4) where the material evidence has beenoverlooked either by the trial Court or the appellate Court or theorder is passed by considering irrelevant evidence and (5) wherethe acquittal is based on the compounding of the offence which isinvalid under the law. By now, it is well settled that the revisionaljurisdiction, when invoked by a private complainant against anorder of acquittal, cannot be exercised lightly and that it can beexercised only in exceptional cases where the interest of publicjustice require interference for correction of manifest illegality or theprevention of gross miscarriage of justice. In these cases, or cases

-7-revn280.00of similar nature, retrial or rehearing of the appeal may be ordered.”In one more case, reported as 2008 Cri. L. J. 1627 SC (Joharand others vs. Mangal Prasad and another) the Apex Court hasmade following observations:-“ For interference in the decision of the trial court, the HighCourt is required to point out any error of law on the part of thelearned Trial Judge. It is observed that the High court is expectedto point out that any relevant evidence has been left out of itsconsideration by the Trial Court or irrelevant material has beentaken into consideration. It is observed that if such things areabsent, the High Court is not expected to enter into the merits of thematter.”In view of this position of law, this court holds that it is notpossible to convert the revision into appeal. Such conversion willdefinitely affect the rights of the accused as at the relevant time theoriginal complainant had no right to file the appeal.9. The facts of the present case show that house of the accused issituated in front of the house of the complainant. The incident tookplace on 15.10.1988 at about 7.00 a.m. The wife of the accused waspouring water in front of her house and this water was going towardsthe front portion of the house of the complainant. The complainantrequested the wife of the accused not to pour water and then quarrel

-8-revn280.00started. The persons from these two families gathered there. Duringquarrel, there was pushing and pulling between the husband of thecomplainant and the accused Maruti.When the complainantintervened, the accused gave fist blow on the face of the complainant.Due to this blow, one tooth of the complainant got uprooted and twoteeth became loose. The complainant went to the police station andgave a report against the accused and his wife. The crime No. 225 of88 came to be registered in Nagar Tahsil police station for the offencepunishable under Sections 323, 325, 504 r.w. 34 of I.P.C.Thecomplainant was referred for medical examination. After completion ofinvestigation, charge sheet came to be filed for all these offences. Thetrial court acquitted the wife of the accused and the accused came tobe convicted for the offence punishable under Section 325 of I.P.C. asthe complainant had lost one tooth. The Sessions Court consideredthe circumstance like the scuffle between two male persons of the twofamilies and has held that there is possibility that injury was not causedvoluntarily.10. Nanda (P.W.1), the complainant has given evidence that duringthe incident, the accused Maruti gave a fist blow on her face and dueto said blow she lost one tooth and two teeth became loose in theincident. Exh.20, F.I.R. given by the complainant is consistent on thematerial points with the substantive evidence. Her evidence shows

-9-revn280.00that wife of the accused was carrying of 7 months at the time ofincident. Her evidence and evidence of spot panchnama show thatthere is channel of drainage of water by the side of the road and oneither side of the road there are houses of these two families. There isprobability that the wife of the accused was pouring the water there, asthere was drainage channel.11. Popat (P.W.2), husband of the complainant has given similarevidence. His evidence is that there was scuffle between him and theaccused. His banyan was torn in the incident. It can be said that thereis little bit inconsistency in his version and the version of thecomplainant. The complainant has tried to show that the accused hadmade Popat to fall on the ground and after that the accused assaultedPopat when she intervened. The evidence of Popat shows that theaccused was probably only pushing him and in that attempt banyangot torn.12. The spot panchnama Exh.23 shows that no blood was found onthe spot. Both the Popat and his wife have given evidence thatneighbours gathered at the spot at the relevant time, however, no suchneighbour is examined by the prosecution to give independentevidence. Thus, there are versions of the complainant and Popatwhich can be called interested versions against the accused. One

-10-revn280.00Mohan (P.W.5) is examined to prove that tooth was produced by thecomplainant and it was seized under panchnama Exh.34 by the police.Dr. Pramod (P.W.4) is examined to prove that on 25.10.1988, the dateof incident, he had examined the complainant and he had found twoinjuries on the face. One injury was caused to lower gum. There wasex-poliation of right inciser tooth. The age of injury is given as withinsix hours. Thus there is circumstantial evidence to corroborate theevidence of the complainant.13. The aforesaid circumstances and the evidence show that thequarrel started out of petty incident. There is possibility that there wasscuffle between male members of the two families, there is possibilitythat the complainant tried to separate her husband and the accusedand in that attempt she sustained injury to her face. In such case, itcannot be said that there was intention on the part of the accused tocause such injury or he had knowledge that by such act, he was likelyto cause such injury. In view of such probabilities, it can be said thatview taken by the appellate court is possible view. In view of theposition of law already discussed, about the restriction on the power ofthis Court, this Court holds that interference is not possible in thedecision of the Sessions Court. So Revision stands dismissed.*****

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