Bombay High Court
State Of Mah., Thr. Pso Ps Akot File ... vs Swapnil Baswant Wankhede on 23 June, 2021
Bench: V.M. Deshpande, Amit B. Borkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION (APPA) NO.629/2019
IN
CRIMINAL APPEAL NO............./2021
State of Mah., thr. PSO PS Akot File, Akola, Taluka Akola, District Akola
..vs..
Swapnil Baswant Wankhede
...................................................................................................................................................................
Office Notes, Office Memoranda of Coram,
appearances, Court orders or directions Court's or Judge's Order
and Registrar's orders
...................................................................................................................................................................
Shri T.A.Mirza, Addl.P.P. for the applicant/State.
Shri Ajay Londhe, Counsel for the non-applicant.
CORAM : V.M.DESHPANDE &
AMIT B.BORKAR, JJ.
DATED : JUNE 23, 2021.
1. Hearing was conducted through video
conferencing and learned counsel agreed that audio and
visual quality was proper.
2. This is an application filed by the State seeking
leave to file appeal against judgment and order of acquittal
dated 24.4.2018 passed by learned Additional Sessions
Judge, Akola in Sessions Trial No.147/2012 whereby
learned Judge below acquitted the non-applicant of offence
punishable under Section 307 of the Indian Penal Code.
3. Notice on this application was issued and in
pursuance to the Notice Advocates Shri V.R.Tiwari and Shri
Ajay Londhe filed their Vakalatnamas.
4. Heard learned Additional Public Prosecutor Shri
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T.A.Mirza for the applicant/State and learned counsel Shri
Ajay Londhe for the non-applicant.
5. According to learned counsel Shri Ajay Londhe
for the non-applicant, the prosecution has utterly failed to
prove its case against the non-applicant and, therefore,
learned Judge below has rightly acquitted the non-applicant.
He submits that evidence of injured does not inspire
confidence and, therefore, this Court may not interfere with
the judgment and order of acquittal.
6. During Trial, the prosecution examined injured
Sonu (PW1). As per his evidence, on 5.8.2011 he was
assaulted by the non-applicant by knife when he was
standing beside his motorcycle. His evidence shows that he
resisted the attack by caught holding knife due to which he
also sustained injury on his palm.
7. The prosecution has also examined Dr.Bhaskar
Laxman Lokhande (PW2), who examined injured Sonu
(PW1). His evidence shows that Sonu suffered five injuries.
In cross-examination, a suggestion was given to Dr.Lokhande
in consonance with theory of witness that injured Sonu
received injury due to fallen on broken glass. The said
particular suggestion was not only denied by Dr.Lokhande
but also he very specifically stated that injuries found on the
person of Sonu cannot occur due to fallen on broken glass.
8. Further, evidence of injured Sonu (PW1) is
supported by medical evidence inasmuch as Dr.Bhaskar
Lokhande (PW2) found injures on palm of injured person.
Learned Judge below, in our view, very lightly brushed aside
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the said particular aspect and swayed away with the some
delay on the part of Investigating Officer in sending weapon
to Chemical Analyzer. It is to be mentioned that even
clothes of the injured as well as present non-applicant were
having blood stains.
9. After having gone through the evidence of
witnesses and judgment and order passed by learned Judge
below, we are of view that this is a fit case wherein leave
should be granted to the applicant/State to file appeal since
re-examination of the prosecution case is absolutely
necessary.
10. In this view of the matter, I pass following
order:
ORDER
(1) The criminal application is allowed.
(2) Leave is granted to the applicant/State to file appeal
challenging judgment and order of acquittal dated 24.4.2018
passed by learned Additional Sessions Judge, Akola in
Sessions Trial No.147/2012.
With this, the criminal application stands
disposed of accordingly.
Criminal Appeal No............./2021
1. Heard.
2. ADMIT.
3. Learned counsel Shri Ajay Londhe waives
service on behalf of the respondent.
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4. Action under Section 390 of the Code of
Criminal Procedure be taken against the respondent.
5. When the respondent will be brought in
execution of action under Section 390 of the Code of
Criminal Procedure, learned Judge below shall release the
respondent on bail on he executing a P.R.Bond in the sum of
Rs.5000/- with one solvent surety of the like amount.
6. Learned Judge below before whom the
respondent will be executing the bail bond shall direct the
respondent to attend nearest police station of his residence
once in six months during the pendency of this appeal.
JUDGE JUDGE
!! BRW !!
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