Bombay High Court
The State Of Maharashtra vs Rajendra Pralhad Bhosale on 24 January, 2023
Bench: V. V. Kankanwadi, Abhay S. Waghwase
{1}
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
919 APPLICATION FOR LEAVE TO APPEAL BY STATE NO.102 OF 2022
WITH
CRIMINAL APPEAL NO.574 OF 2022
THE STATE OF MAHARASHTRA
VERSUS
RAJENDRA PRALHAD BHOSALE
...
APP for Applicant-State : Mr.R.D.Sanap
Advocate for Respondent-Accused : Mr.Aniruddha B. Ghule
Advocate for Appellant-Informant : Mr.V.S.Dhotare h/f.
Mr.S.A.Deshmukh
...
CORAM : SMT. VIBHA KANKANWADI &
ABHAY S. WAGHWASE, JJ.
DATE : 24th January, 2023
PER COURT :-
. Heard learned APP for applicant-State.
2. It is to be noted that this Court by order dated 19-08-2022
had issued notice to the respondent and Mr.A.B.Ghule Patil,
learned Advocate appeared to represent respondent - original
accused, however, today he is absent.
3. Present application has been fled for leave to appeal under
Section 378(1)(b) of the Code of Criminal Procedure (Cr.P.C.). It
will not be out of place to mention here that even original
informant has fled appeal under Section 372 of the Cr.P.C.
::: Uploaded on - 25/01/2023 ::: Downloaded on - 26/01/2023 00:17:02 :::
{2}
challenging the acquittal of respondent No.2 - original accused.
In that case also notice was issued to the respondents and the
same Advocate appeared for respondent No.2 - original accused
and he is absent.
4. With the able assistance of learned APP, we have gone
through the evidence which was before the learned trial Judge,
copies of which have been produced alongwith the appeal fled
by the informant. It appears from the prosecution story that,
one Janardhan Bapurao Arekar was proceeding towards house at
about 06:30 p.m. on 17-03-2021. When he was infront of house
of one Narayan Pandurang Babar, he came across the present
respondent and therefore, Janardhan greeted accused by saying
"Jay Hari". It is the prosecution story that therefore, accused
started abusing Janardhan as to why he has not greeted him by
saying "Ram Ram". Thereafter, accused given slaps and fsts to
Janardhan. Informant's son and other four persons intervened
and when they started taking Janardhan towards house, accused
brought a thick wooden stick (Balli) and gave blow of that stick
on the head of Janardhan from backside causing serious injury.
He was taken to hospital by name Sant Krupa Hospital, Jalna.
About eighteen stitches were given to his head injury and then
he was shifted to United Ciigma Hospital, Aurangabad for further
::: Uploaded on - 25/01/2023 ::: Downloaded on - 26/01/2023 00:17:02 :::
{3}
treatment. There was an attempt to take the statement of
Janardhan when he was admitted in United Ciigma Hospital, but
it was certifed that he was not in a position to give statement
and then the son appears to have lodged the FIR and at that
time, it was under Sections 307, 323 and 504 of Indian Penal
Code. Certain part of investigation like drawing of spot
panchanama, arresting accused, seizing clothes have taken
place. So also statements of witnesses were recorded.
Janardhan expired at around 09:00 a.m. on 20-03-2021.
5. It appears that prosecution has examined in all ten
witnesses to bring home the guilt of the accused. The post
mortem report and the testimony of the Medical Ofcer would
show that there were about eight external injuries and three
internal injuries. Cause of death given in post mortem report
Exhibit 49 is "Head injury". PW7 Dr.Arvind gives the account of
those injuries. Prosecution has examined PW1 Datta -
informant, PW3 Janardhan eye witness, PW4 Jagannath eye
witness and PW8 Narayan eye witness. Except PW8 Narayan,
all other three have supported the prosecution story and note of
this support is also taken by the learned trial Judge in paragraph
No.22 of his Judgment. Another piece of evidence which is in
favour of the prosecution is testimony of PW6 Sandip, who is the
::: Uploaded on - 25/01/2023 ::: Downloaded on - 26/01/2023 00:17:02 :::
{4}
pancha on the memorandum and seizure panchanama whereby
the wooden log or the pole was discovered by the accused. No
doubt PW5 Ganesh - Pancha to the seizure Panchanama i.e.
clothes of the accused has turned hostile but the Panchanama of
the spot is proved. It appears from the cross-examination of the
PW7 Dr.Arvind, Medical Ofcer, who conducted autopsy, that he
has observed that fracture of parietal bone is not possible if a
person is assaulted from backside, which appears to have
prevailed over the decision of the learned trial Judge regarding
acquittal. However, it is to be noted that point that is required to
be considered is that if there is controversy between the medical
evidence and the ocular evidence, which should prevail. That
point deserves to be gone into. When three eye witnesses have
supported each other then this point assumes importance. No
doubt another point that is involved is as to whether the ofence
under Section 302 of the Indian Penal Code is made out or any
lesser ofence can be said to have been made out / proved
beyond reasonable doubt by the prosecution. This can be done
in the appeal and therefore, taking into consideration the
grounds, leave deserves to be granted to the State and the
appeal fled by the informant under Section 372 of Code of
Criminal Procedure deserves to be admitted. Hence, following
order :
::: Uploaded on - 25/01/2023 ::: Downloaded on - 26/01/2023 00:17:02 :::
{5}
ORDER
(i) Leave is granted to the State to fle appeal.
(ii) Both the appeals stand admitted.
(iii) Compliance under Section 390 of the Code of Criminal
Procedure be got done and the terms and the conditions for
bail to be decided by the learned trial Judge.
(iv) Call Record and Proceedings with paper book.
( ABHAY S. WAGHWASE ) ( SMT. VIBHA KANKANWADI )
JUDGE JUDGE
SPT
