The State Of Maharashtra vs Govind Gulab Devkate And Others
2023 Latest Caselaw 4117 Bom

                                                                        7-ALS10-19
JPChavan

                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

          7 APPLN. FOR LEAVE TO APPEAL BY STATE NO.10 OF 2019

                          THE STATE OF MAHARASHTRA
                                      VERSUS
                     GOVIND GULAB DEVKATE AND OTHERS
                                          ...
                  APP for the Appellant -State: Mrs. V. S. Chaudhari


                        CORAM         :   SMT. VIBHA KANKANWADI &
                                          Y. G. KHOBRAGADE, JJ.
                        DATE          : 24th April, 2023


ORDER:

1. The present application is filed by the State seeking leave to

appeal under section 378 (1)(b) of the Criminal Procedure Code against

the judgment and order dated 28.09.2018 passed by the learned

Additional Sessions Judge-2, Ahmednagar, in Sessions Case No.73 of

2014; thereby acquitting the respondents/original accused for the

offences punishable under section 302 read with section 34 of the

Indian Penal Code.

2. Heard learned APP Mrs. V. S. Chaudhari. With her able

assistance, we have gone through the evidence which was before the

trial court.

3. The case of the prosecution is based on two dying declarations

of deceased Balasaheb Keskar as well as direct evidence of PW-1 Angad

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Shendkar. The prosecution has examined the police officer PW-7, then

API Laxman Rakh attached to Karjat Police Station who had recorded

dying declaration and then it was treated as FIR. The said dying

declaration has been recorded on the same day of incident i.e. on

06.09.2013 around 7.30 p.m. and thereafter Naib Tahsildar appears to

have recorded the second dying declaration between 11.40 p.m. to

11.55 p.m. on the same day i.e. 06.09.2013. The Medical officer who

gave endorsement is also examined. The Naib Tahsildar who recorded

the second dying declaration was reported to be dead when his turn to

be in the witness box came. However, that second dying declaration is

exhibited taking into consideration the endorsement.

4. In case of multiple dying declarations, the law is clear and it

says that each dying declaration will have to be considered

independently. Another fact to be noted here is that the MLC that was

sent by PW-6 Dr. Sucheta Yadav also refer to the history that was

allegedly given by the deceased Balasaheb Keskar and whether that

could have been treated as FIR and also the dying declaration within

the meaning of section 32(a) of the Indian Evidence Act is required to

be considered. No doubt, it appears that the learned trial judge has

discarded both the dying declarations considering the discrepancies but

then his reasons are required to be revisited taking into consideration

the law on the point that each dying declaration is required to be

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considered on its own merits and then cumulative effect, if at all, is

required to be considered.

5. Here, the testimony of PW-1 Angad is also required to be

considered as he is the eye witness. Further, the prosecution has also

examined PW-8 Dr. Pushpa Narote, the medical officer who had

examined the accused Govind and it appears to be before the arrest.

She had found superficial burn injuries on his person and therefore, it is

also required to be seen as to whether the accused has given

explanation for the said injuries. The suggestion would show that

there was dispute between the deceased and the accused No.1. The

enmity is the double edged weapon and, therefore, the evidence will

have to be considered from all the angles.

6. We are, therefore, of the view that re-appreciation of the

evidence is required in this case taking into consideration the

seriousness of the offence and the material that has been brought on

record. Hence, the following order:

O RDER

(i) The application stands allowed.

(ii) The prosecution is allowed to file appeal to challenge the impugned order acquitting the respondent. Registry to verify and register appeal.

(iii)       The appeal is admitted.





                                                                     7-ALS10-19

(iv)    Issue notice to the respondent, returnable on 23.06.2023.

(v)     Call record and proceedings with paper-book.

(vi)    Compliance under section 390 of the Criminal Procedure Code

should be made to the satisfaction of the trial court.

(Y. G. KHOBRAGADE, J.) (SMT. VIBHA KANKANWADI, J. )