1. The revision is filed against the judgment and order of appeal No.9 of 1991 which was pending in the Court of Additional Sessions Judge, Ahmednagar. The judgment and order of J.M.F.C. Ahmednagar delivered in R.C.C. No. 158 of 1988 is modified by the appellate court and the conviction and sentence given to the respondent-accused is converted from the offence punishable under Section 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 is challenged by the original complainant in the present proceeding. Both sides are heard. This Court has perused the original record.
2. Learned advocate for the petitioner made a prayer for converting the present proceeding to criminal appeal. He submitted that in view of the provisions of section 401(5) of Cr.P.C. such conversion is possible. He submitted that by the amendment made to Section 372 of 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 other side.
3. For the petitioner, reliance was placed on Articles 20 and 21 of the Constitution of India. It was submitted that the procedural law can be given retrospective effect and accused has no right in respect of procedure 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 (Delhi Cloth and General Mills Vs. Income Tax Commissioner and another), the Privy Council has laid down that the provisions touching existing right are not ordinarily retrospective. The term “existing rights” is explained by Privy Council and it is laid down that if due to application of amended provisions, the law would deprive all the existing finality of orders which, when the statute came into force, were final, are provisions which touch existing rights. In the case reported as 2010 (12) SCC 599 (National Commission for Woman vs. State of Delhi and another) the Apex Court, in para 8, has made following observations:-
“8. Chapter XXIX of the Code of Criminal Procedure deals with “Appeal(s)”. Section 372 specifically provides that no appeal shall lie from a judgment or order of a criminal court except as provided by the Code or by any other law which authorizes an appeal. The proviso inserted by Section 372 (Act 5 of 2009) with effect from 31.12.2009, gives a limited right to the victim to file an appeal in the High Court against any order of a criminal court acquitting the accused or convicting him for a lesser offence or the imposition of inadequate compensation. The proviso may not thus be applicable as it came in the year 2009 (long after the present incident) and, in any case, would confer a right only on a victim and also does not envisage an appeal against an inadequate sentence. An appeal would thus be maintainable only under section 377 to the High court as 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 and Ors). This Court, Division Bench has squarely dealt with the point involved in the present case and it is observed by this Court that amendment to Section 372 of Cr.P.C. came into force on 31.12.2009 and as it has created substantive right in favour of victim, the said provision cannot apply retrospectively, as there is no provision made to make the application retrospective.
5. It was submitted for the petitioner that question involved was the right of third party in the case of National Commission for Woman (cited supra) and the Apex Court has not squarely dealt with the point involved in the present case. This Court holds that there is no force in this submission. The observations made by the Apex Court which are quoted already, show that they are on two points. The point of retrospective application of this provision, proviso to Section 372 of Cr.P.C. is also discussed by the Apex Court. These observations are binding on this Court.
6. By citing the case reported as 2005 Cr.L.J. 3071 SC (Pratap Vs. State of Jharkhand), submissions were made for the petitioner that in criminal law in many cases, retrospective operation is given even when the right is created. In this reported case, the provisions of Juvenile Justice Act 2000 are discussed by the Apex Court. The Apex Court has laid down that this provisions need to be used for the benefit of Juveniles, the persons who had not completed 18 years of age, on the date of enforcement of the Act viz. 1.4.2001, and so even in some pending cases to which this condition applies, the amended provision can be used. In view of this observation of the Apex Court, it can be said that when the amendment is intended to mollify the rigorous of criminal law and particularly when such provisions are in favour of the juveniles, it needs to be presumed that this provision is in the interest of society. It does not affect the right of the person, against whom allegations are made, as the provision is in his favour. This court holds that such interpretation is not possible in the present case. The original complainant is requesting for retrospective application and retrospective application is bound to affect the rights of the accused for the discussion already made and also for the discussion which is being made later on.
7. The case reported as 2010 Cri. L.J. 3751, Andhra Pradesh High Court (Mohit Yadam and Anr. vs. State of Andhra Pradesh and Ors) was also cited for the petitioner. In this case, the provisions of Domestic Violence Act 2005 are discussed by the High Court. It is observed that in view of definition of “Domestic Violence” given in Section 2(q), previous incidents of domestic violence are covered under the Act. It needs to be kept in mind that the provisions of Domestic Violence Act have no direct penal consequence of conviction and sentence as provided in Article 20 of the Constitution of India and so such interpretation is possible.
8. The powers of this Court of revision under Section 401 of Cr.P.C. are very limited. The powers are discussed by the Apex Court in the case reported as AIR 1951 SC 196 (D. Stephens vs. Nosibolla). In subsequently decided cases, the powers are discussed in more particulars when the powers are invoked by the private complainant against the order of acquittal. In the case reported as AIR 2010 SC 1140 (Sheetala Prasad and others Vs. Sri Kant and Anr.) the Apex Court has laid down as follows:-
“Without making the categories exhaustive, revisional jurisdiction can be exercised by the High Court at the instance of private complainant (1) where the trial Court has wrongly shut out evidence which the prosecution wished to produce, (2) where the admissible evidence is wrongly brushed aside as inadmissible, (3) where the trial Court has no jurisdiction to try the case and has still acquitted the accused, (4) where the material evidence has been overlooked either by the trial Court or the appellate Court or the order is passed by considering irrelevant evidence and (5) where the acquittal is based on the compounding of the offence which is invalid under the law. By now, it is well settled that the revisional jurisdiction, when invoked by a private complainant against an order of acquittal, cannot be exercised lightly and that it can be exercised only in exceptional cases where the interest of public justice require interference for correction of manifest illegality or the prevention of gross miscarriage of justice. In these cases, or cases of similar nature, retrial or rehearing of the appeal may be ordered.”
In one more case, reported as 2008 Cri. L. J. 1627 SC (Johar and others vs. Mangal Prasad and another) the Apex Court has made following observations:-
“For interference in the decision of the trial court, the High Court is required to point out any error of law on the part of the learned Trial Judge. It is observed that the High court is expected to point out that any relevant evidence has been left out of its consideration by the Trial Court or irrelevant material has been taken into consideration. It is observed that if such things are absent, the High Court is not expected to enter into the merits of the matter.”
In view of this position of law, this court holds that it is not possible to convert the revision into appeal. Such conversion will definitely affect the rights of the accused as at the relevant time the original complainant had no right to file the appeal.
9. The facts of the present case show that house of the accused is situated in front of the house of the complainant. The incident took place on 15.10.1988 at about 7.00 a.m. The wife of the accused was pouring water in front of her house and this water was going towards the front portion of the house of the complainant. The complainant requested the wife of the accused not to pour water and then quarrel started. The persons from these two families gathered there. During quarrel, there was pushing and pulling between the husband of the complainant and the accused Maruti. When the complainant intervened, the accused gave fist blow on the face of the complainant. Due to this blow, one tooth of the complainant got uprooted and two teeth became loose. The complainant went to the police station and gave a report against the accused and his wife. The crime No. 225 of 88 came to be registered in Nagar Tahsil police station for the offence punishable under Sections 323, 325, 504 r.w. 34 of I.P.C. The complainant was referred for medical examination. After completion of investigation, charge sheet came to be filed for all these offences. The trial court acquitted the wife of the accused and the accused came to be convicted for the offence punishable under Section 325 of I.P.C. as the complainant had lost one tooth. The Sessions Court considered the circumstance like the scuffle between two male persons of the two families and has held that there is possibility that injury was not caused voluntarily.
10. Nanda (P.W.1), the complainant has given evidence that during the incident, the accused Maruti gave a fist blow on her face and due to said blow she lost one tooth and two teeth became loose in the incident. Exh.20, F.I.R. given by the complainant is consistent on the material points with the substantive evidence. Her evidence shows that wife of the accused was carrying of 7 months at the time of incident. Her evidence and evidence of spot panchnama show that there is channel of drainage of water by the side of the road and on either side of the road there are houses of these two families. There is probability that the wife of the accused was pouring the water there, as there was drainage channel.
11. Popat (P.W.2), husband of the complainant has given similar evidence. His evidence is that there was scuffle between him and the accused. His banyan was torn in the incident. It can be said that there is little bit inconsistency in his version and the version of the complainant. The complainant has tried to show that the accused had made Popat to fall on the ground and after that the accused assaulted Popat when she intervened. The evidence of Popat shows that the accused was probably only pushing him and in that attempt banyan got torn.
12. The spot panchnama Exh.23 shows that no blood was found on the spot. Both the Popat and his wife have given evidence that neighbours gathered at the spot at the relevant time, however, no such neighbour is examined by the prosecution to give independent evidence. Thus, there are versions of the complainant and Popat which can be called interested versions against the accused. One Mohan (P.W.5) is examined to prove that tooth was produced by the complainant 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 date of incident, he had examined the complainant and he had found two injuries on the face. One injury was caused to lower gum. There was ex-poliation of right inciser tooth. The age of injury is given as within six hours. Thus there is circumstantial evidence to corroborate the evidence of the complainant.
13. The aforesaid circumstances and the evidence show that the quarrel started out of petty incident. There is possibility that there was scuffle between male members of the two families, there is possibility that the complainant tried to separate her husband and the accused and in that attempt she sustained injury to her face. In such case, it cannot be said that there was intention on the part of the accused to cause such injury or he had knowledge that by such act, he was likely to cause such injury. In view of such probabilities, it can be said that view taken by the appellate court is possible view. In view of the position of law already discussed, about the restriction on the power of this Court, this Court holds that interference is not possible in the decision of the Sessions Court. So Revision stands dismissed.