Bombay High Court
Bhujangrao Madhavrao Barve vs State Of Maha & Ors on 20 December, 2016
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL REVISION APPLICATION NO. 83 OF 2004
Bhujangrao s/o. Madhavrao Barve ..Applicant
Age.45 years, Occ. Agri., [original
R/o. Wakhari, Tq. Basmath, complainant]
Dist. Hingoli.
Versus
1. The State of Maharashtra ig ..Non-applicants
2. Saraswatibai w/o. Ramrao Dhore
Age. 45 years, Occ.Agri.& Household,
R/o. Wakhari, Tq. Basmath,
Dist. Hingoli.
3. Balu s/o. Ramrao Dhore
Age.30 years, Occ. Agri.,
R/o. Wakhari, Tq. Basmath,
Dist. Hingoli.
Mr.S.R. Bagal, Advocate for the applicant.
Mr.A.R. Kale, A.P.P. for non-applicant No.1.
Mr.N.B. Patekar, Advocate h/f. Mr. P.R.Katneshwarkar,
Advocate for respondent Nos. 2 & 3.
CORAM : Z.A. HAQ,J.
DATED : 20.12.2016
ORAL JUDGMENT :-
. Heard. The applicant (father of the victim) has
approached this Court in revisional jurisdiction with the
grievance that the judgment passed by the learned
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Additional Sessions Judge, Parbhani acquitting the non-
applicant Nos.2 and 3 (accused) of the offence punishable
under sections 302, 498-A and 201 read with section 34 of
the Indian Penal Code is unsustainable as it is based on
improper and perverse appreciation of the evidence on
record.
02. According to the prosecution, the marriage
between the non-applicant No.3-Balu and victim Rekha was
solemnized in 1999 and the incident has occurred on 11th
February, 2003. The body of the victim - Rekha was found
in the well situated in the field of Madhukar Gawande
(P.W.8) which is adjacent to the field of the accused.
The learned Additional Sessions Judge has recorded that
the prosecution has failed to establish beyond doubt the
guilt of the accused.
03. With the assistance of the learned Advocates for
the applicant and non-applicant Nos.2 and 3 and the
learned A.P.P., I have examined the record.
. Dr.N.M.Waghmare (P.W.2) has deposed that at the
time of examination of dead body of victim Rekha on 12th
February, 2003, he has noticed some ante-mortem external
injuries. Dr.Waghmare opined that the cause of death was
"asphyxia due to throttling" probably by one hand. In
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the evidence, Dr. Waghmare reiterated the details of
injuries as follows :-
(1) C.L.W. Left libia minora, 6x2x½ cms.
(2) C.L.W. Right libia minora, 3x1x½ cms.
Both injuries were ante-mortem.
(3) Abrasion on right side knee 1x½ cm.
(4) Contusion, four in numbers, to left side
neck, 2x2 cms. with fracture of hyoid bone.
The above two injuries were ante-mortem.
(5) Multiple abrasion on left ear pinna.
(6) Abrasion on lower lip, 1x½ cms.
(7) Abrasion on left forearm, 2x1 cms.
(8) Abrasion on right knee joint, 2x1 cms.
(9) Abrasion on left abdominal wall, 2x2 cms.
The above injuries were post-mortem as mentioned
in column No.17.
. There is corroborating evidence on record
alleging complaint by victim Rekha about illtreatment by
the accused. Maroti (P.W.9) uncle of victim Rekha has
deposed that the victim Rekha had been to her house in
the evening of 10th February, 2003 i.e. a day prior to
the incident and was complaining about illtreatment by
the accused.
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04. Though the learned Additional Sessions Judge has
heavily relied on some omissions and some minor
contradictions, surprisingly he has overlooked the
presumption as per section 113-B of the Indian Evidence
Act. In my view the failure on the part of the learned
Additional Sessions Judge to appreciate and examine the
evidence in the light of presumption under section 113-B
of the Indian Evidence Act has resulted in failure of
justice.
05. The learned Advocate for the non-applicant Nos.2
and 3 - accused has submitted that the case of the
prosecution is based on circumstantial evidence and the
evidence on record is not sufficient to establish the
chain so as to convict the accused. It is submitted that
it would not be possible for this Court to re-appreciate
the evidence in the revisional jurisdiction and to set
aside the findings recorded by the learned Additional
Sessions Judge acquitting the accused. In support of the
submissions, the learned Advocate relied on the following
judgments :-
Judgments given by the Hon'ble Supreme Court in
the cases of :-
(i) Krishnan Vs. State represented by Inspector
of Police, 2008(15) SCC 430.
(ii) State through C.B.I. Vs. Mahender Singh
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Dahiya, 2011 (3) SCC 109.
(iii)Jagannath Choudhary & Ors. Vs. Ramayan
Singh & Anr. 2002(5) SCC 659.
(iv) Bansilal & ors. Vs. Laxman Singh, 1986
Cri.L.J.1603.
06. The submissions made on behalf of the non-
applicant Nos.2 and 3 (accused) regarding the scope of
revisional jurisdiction and the powers of this Court to
re-appreciate the evidence cannot be said to be incorrect
or unacceptable. The legal position is well established.
However, in the present case, I find that the learned
Additional Sessions Judge has examined and appreciated
the evidence on record completely overlooking the
presumption under section 113-B of the Indian Evidence
Act. The failure on the part of the learned Additional
Sessions Judge to advert to the provisions of Section
113-B of the Indian Evidence Act and to examine and
appreciate the evidence on record in the light of it,
vitiates the judgment passed by him.
07. Surprisingly the State has chosen not to file
appeal to challenge the judgment of acquittal. When the
matter was taken up on 8th December, 2016, after
examining the facts of the case, an order was passed
directing the learned A.P.P. to call a report from the
Law & Judiciary Department as to why appeal is not filed.
The learned A.P.P. has placed on record the communication
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sent by the Solicitor cum Dy. Secretary, Law & Judiciary
Department, Aurangabad to the office of the Government
Pleader, High Court of Judicature of Bombay, Bench at
Aurangabad on 15th December, 2016 clarifying that the
Department of Law & Judiciary had not received any
proposal from the office of the District Government
Pleader for filing the appeal. I fail to understand why
the office of the District Government Pleader had not
sent the proposal to the Department of Law & Judiciary
for filing the appeal, in the facts of the present case.
The dispensation of criminal justice cannot be at the
mercy of the prosecutor or the investigating agency and
the Courts cannot be silent spectators and cannot blink
their eyes and overlook glaring facts.
08. In view of the considerations recorded above,
I am of the view that the impugned judgment is required
to be set aside and the matter has to be remitted to the
Sessions Court for fresh decision. I am conscious that
this Court should be extremely slow in adopting the
course which I am adopting in this case, but in the facts
of the present case, this Court would be failing in its
duty, if the course proposed to be adopted is not
followed.
. Hence, the following order :-
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(i) The impugned judgment is set aside.
(ii) The matter is remitted to the Court of
the Additional Sessions Judge, Parbhani for
fresh decision. The learned Additional Sessions
Judge, Parbhani shall pass fresh judgment. The
learned Additional Sessions Judge shall not
permit the parties to bring on record any fresh
evidence and the judgment shall be passed on the
basis of the evidence already on record.
(iii) The non-applicant Nos.2 and 3/accused
undertake to appear before the learned
Additional Sessions Judge, Parbhani on 27th
January, 2017 at 11.00 a.m. and abide by the
further orders/directions in the matter.
(iv) The learned A.P.P. shall inform the
District Government Pleader about this order and
the District Government Pleader shall ensure
that the matter is attended on 27th January,
2017.
(v) The Criminal Revision Application is
allowed in the above terms.
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(vi) The Joint Secretary, Law & Judiciary
Department, Aurangabad shall conduct an enquiry
to examine the reasons because of which the
Office of the District Government Pleader had
not sent the proposal for filing appeal and if
necessary, take appropriate action against the
concerned.
[Z.A. HAQ,J.]
snk/2016/DEC16/crirev83.04
