Bombay High Court
The State Of Maharashtra vs Vilas S/O. Nanasaheb Honde on 10 March, 2021
Bench: R.V. Ghuge, B. U. Debadwar
..1.. CrApeal.945.2019
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
903 CRIMINAL APPEAL NO.945 OF 2019
WITH
APPLN. FOR LEAVE TO APPEAL BY STATE NO.222 OF 2019
VISHWAMBHAR BABASAHEB TARAKH .. Appellant
VERSUS
VILAS S/O. NANASAHEB HONDE AND ANR .. Respondents
...
Advocate for the Appellant : Mr Sudarshan J. Salunke,
Mr Amar V. Lavte
Advocate for Respondent No.1 : Mr A.D. Hande
APP for Respondent No.2 / State : Mr R.V. Dasalkar
...
CORAM : RAVINDRA V. GHUGE
AND
B. U. DEBADWAR, JJ.
Date : 10-03-2021
PER COURT :-
1. The criminal appeal has been filed by the original
informant, who is the father of the deceased woman. The State has
preferred a criminal application for leave to appeal. By the impugned
Judgment dated 25-06-2019 delivered by the Additional Sessions
Judge-1, Jalna in Session Case No.56 of 2017, the accused has been
acquitted of the charge of murdering the deceased, who was the wife
of his cousin brother.
2. We have considered the strenuous submissions of the
learned Counsel for the respective sides.
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3. The learned Counsel for the original accused has
vehemently opposed the appeal and submits that, there is no
evidence against the accused. He has read out the deposition of
Rangnath Khande (PW-5), who was the driver of a person by name
Anil Gupta from Pune who was residing in rental premises of a
teacher adjacent to the house which is the spot of the crime.
4. The evidence before the trial Court indicates that,
deceased Sumitra was shot with a revolver in between 01:30 p.m. to
02:30 p.m. on 02-01-2017. The trial Court has given the benefit of
doubt to the accused on the ground that neither Rangnath Khande
(PW-5) nor Kalyan Aute (PW-7) or any other witness had actually
seen the accused along with the deceased inside the house so as to
support the 'last seen alive together' theory.
5. There is no dispute that, the services of a fingerprint
expert were not utilized by the prosecution, when the murder
weapon was seized. It is also undisputed that the victim died on
account of a bullet injury that was fired through her head. Yet, the
services of a ballistic expert was not utilized.
6. While dealing with an appeal against acquittal and an
..3.. CrApeal.945.2019
application by the State seeking leave to assail the Judgment of
acquittal, the Appellate Court has to assess as to whether there is any
evidence which would necessitate consideration of the appeal. If
there is no evidence at all, against the accused, the Appellate Court
may dismiss the appeal in limine. At the same time, the Appellate
Court has to bear in mind that the informant and the State would not
get an opportunity of questioning the Judgment of acquittal handed
down by the trial Court.
7. The record reveals that, the deceased was inside the
residential house when she was shot through a revolver. It is on the
basis of investigation that the role of the accused was revealed.
Rangnath Khande (PW-5) was the driver of Anil Gupta, who was
seated inside the Tata Sumo vehicle belonging to Mr Gupta. PW-5
was not using a wrist watch and, therefore, the time, that he has
stated in his deposition when he saw the accused, is based on an
approximate assessment of time. He had seen the accused leaving
the house of the deceased around 02:15 p.m. He saw the accused
mounting on his bullet motorcycle and leaving the house of the
deceased. The accused was the member of the joint family, who was
residing in the same house.
..4.. CrApeal.945.2019
8. While PW-5 was seated in his vehicle, a cousin brother of
the husband of the deceased, namely Kailas, arrived at about 03:30
p.m. PW-5 saw him entering the house and in a split moment, he
came out of the house screaming. Therefore, people gathered from
the neighbourhood. PW-5, one Mrs Atole known as 'Atole Kaku',
Mr. Gupta and one Mr Robert, entered the house and found that the
deceased was lying in an unconscious condition on a sofa. Since
Mr Gupta directed PW-5 to call for Dr. Bharat Honde, a renowned
doctor as well as the brother of the husband of the deceased, PW-5
moved his vehicle. On the way, he saw Dr Honde travelling towards
the house where the crime had occurred. He, therefore, turned
around and came back to the house. Police were summoned and
Dr Honde placed the unconscious victim in the Honda City Car
belonging to her husband to be taken to the Hospital.
9. Kalyan Aute (PW-7) is an independent person, who was
working as a Head Master in a school in the Ambad Town. On
02-01-2017, he left for the school at about 10:30 a.m. His wife had
travelled to Aurangabad and, hence, she kept the keys of the house in
the house of the deceased. This was informed by her to PW-7. At
around 01:35 p.m., PW-7 came to his house and knowing that the
keys are in the house of the deceased, entered the house through the
..5.. CrApeal.945.2019
main gate. He noticed from outside that the television was switched
on. The accused was inside the house and it was the accused, who
handed over the keys to PW-7. At about 01:50 p.m., PW-7 came out
of his house, locked it and went back to the house of the deceased to
handover the keys. He noticed that the main gate of the house was
closed. The northern side channel gate was also locked. Finding
PW-7 near the channel gate, the accused received the keys of the
house of PW-7 by remaining inside the channel gate. PW-7 saw that
the accused had covered his body with a blanket. It was at around
03:45 p.m. that PW-7 received a call from his wife and he was
informed that the deceased was murdered inside the house.
10. Considering the evidence available before us and
especially the testimony of Kalyan Aute (PW-7) who is an
independent witness, we are of the view that, this appeal needs
consideration. If we take a pedantic view of the matter, the murder
of the deceased would not be unravelled and the mystery of her
murder would remain a mystery forever. So also, being an Appellate
Court, it is an obligation for this Court to consider the entire evidence
in the face of an appeal against acquittal so as to assess as to whether
the trial Court has committed any error in discarding the evidence
before it.
..6.. CrApeal.945.2019
11. Prima facie, we are of the view that the testimony of
PW-7 coupled with the corroborative statement found in the
testimony of PW-5, points towards the accused.
12. In view of the above, this appeal is admitted. The
application for leave to appeal filed by the State is allowed. The
learned Counsels for the respective sides waives service on admission.
Keeping in view the law laid down by this Court in the matter of
Satesh H. Chandiramani V/s. Sadashiv Namdeo Kharabi & Anr.,
Criminal Application Nos.1201 of 2007 & 1200 of 2007 decided on
10-02-2009, the said application is treated as an appeal. We direct
the compliance of Section 390 of the Code of Criminal Procedure,
1973 with regard to the accused herein.
13. We direct the trial Court to prepare the appeal
paper-book in Session Case No.56 of 2017 decided on 25-06-2019,
on or before 31-07-2021 and transmit the same along with the
original Record & Proceedings and the muddemal property, to reach
this Court on or before 15-09-2021.
(B. U. DEBADWAR) (RAVINDRA V. GHUGE)
JUDGE JUDGE
Gajanan
