Dundawwa Shivappa Bagewadi vs The State Of Maharashtra & Others
2012 Latest Caselaw 137 Bom

     ash                                                 1                   crapealst-240.12




                IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                
                    CRIMINAL APPELLATE SIDE JURISDICTION
                     CRIMINAL APPEAL ST. NO.240 OF 2012




                                                        
     Dundawwa Shivappa Bagewadi.                                 ..       Appellant 
           Vs




                                                       
     The State of Maharashtra & Others.                          ..       Respondents
           -
     Shri Murtuza M. Najmi for the Appellant.
     ShrI H.J. Dedhia, APP for Respondent No.1.




                                          
     Shri Jayant Bardeskar for Respondent No.2.
           --           
                          CORAM  : A.S. OKA & SMT. SADHANA S. JADHAV, JJ 
                       
                          DATED    : 8TH OCTOBER, 2012


     JUDGMENT ( PER A.S. OKA, J )

1. By this Appeal under the proviso to Section 372 of the

Code of Criminal Procedure, 1973, the Appellant who is the victim has

taken an exception to the Judgment and Order dated 22 nd April, 2010

passed by Additional Sessions Judge, Gadhinglaj by which the

Respondents have been acquitted of the offence under Section 302 read

with Section 34 of the Indian Penal Code.

2. When the Appeal was called out, we pointed out to the

learned counsel for the Appellant that for challenging the same

Judgment and Order, the State had filed an Application under Section

ash 2 crapealst-240.12

378(3) of the Code of Criminal Procedure, 1973 ( hereinafter referred

to as "CRPC") and by Judgment and Order dated 13 th September, 2010

passed by another Division Bench of this Court, the said Application was

rejected. The learned counsel appearing for the Appellant submitted

that the doctrine of merger will not apply as what is rejected is an

application for grant of leave to prefer an Appeal. He urged that the

Division Bench while dismissing Application for leave, was impressed

with delay in recording statements of the material witnesses and no

other incriminating evidence has been taken into consideration. He

pointed out the other evidence on record and especially the evidence of

recovery of weapons which is not considered by the Division Bench

while rejecting the application for leave filed by the State. He urged

that under the proviso to Section 372 of CRPC, an Appeal against

acquittal is available as a matter of right. Hence, he urged that this

Appeal deserves to be heard independently of the findings recorded by

the Division Bench while rejecting an Application for grant of leave to

prefer an Appeal.

3. We have carefully considered the submissions. The

Application for grant of leave to prefer Appeal against the same

Judgment and Order has been rejected by another Division Bench by

order dated 13th September, 2010. Paragraphs 4 to 6 of the said

Judgment and Order read thus: -

ash 3 crapealst-240.12

"4. It is not in dispute that the case is based on

circumstantial evidence and the prosecution heavily relied on the circumstance of deceased

last seen with the accused, as well as seizure of blood stained clothes of the accused. In the instant case, the complainant ( the mother of the deceased Anil) though lodged first information report on 8.1.2009, however, she

has not implicated any of the respondents in the crime in question and for the first time made allegations against them in her supplementary statement which was recorded

by the police two days thereafter.

It is also not in dispute that the prosecution has examined PW-9 Vijay, PW 10 Ananda, PW 11 Sanjay and PW 12 Sachin on the point of

deceased last seen with the accused at 1:00 a.m. on 8.1.2009. However, the Investigating Officer, for the first time, recorded their statements twenty days after the dead body of

deceased came to be recovered. In the instant case, though the blood was detected on the

clothes of the accused, however, the chemical analyser's report only shows that it was a human blood, however, blood group could not be detected.

6. Taking into consideration, the totality of the above referred circumstances, particularly, delay in recording the statements of important witnesses on the point of last seen as well as

nothing was alleged in the FIR, which was lodged on 1.8.2009 by the complainant, we are of the view that the finding of acquittal recorded by the trial Court is sustainable in law. No case is made out for showing indulgence."

4. An Appeal under the proviso to Section 372 of CRPC being an

Appeal against acquittal is governed by constraints of an Appeal against

ash 4 crapealst-240.12

acquittal. The law is well settled. Even if two views are possible, and if

the view taken by the Trial Court in favour of the Accused is a possible

view, no interference can be made with the order of acquittal. In the

present case, a co-ordinate Bench of this Court by a reasoned Judgment

and Order has dismissed the Application for leave by specifically

holding that the finding of acquittal recorded by the Trial Court is

sustainable in law. The view taken is binding on us. We cannot take a

contrary view on the ground that some other evidence was available

which was not considered by the Division Bench. We cannot ignore the

well settled law that the presumption of innocence of the accused is

further strengthened by the order of acquittal.

5. In view of what is discussed above, the present Appeal

cannot be entertained in view of clear finding recorded by co-ordinate

Bench. Hence, it is not necessary to consider the academic question of

merger.

6. Hence, we pass the following order :

ORDER :

The Appeal is dismissed.

      ( SMT. SADHANA S. JADHAV, J )                                ( A.S. OKA, J )