Bombay High Court
The State Of Maharashtra vs Munjaji @ Pappu S/O. Shivaji ... on 10 July, 2023
Bench: V. V. Kankanwadi, Abhay S. Waghwase
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
APPLICATION FOR LEAVE TO APPEAL BY STATE NO.26 OF 2019
The State of Maharashtra,
Through Daithana Police Station,
Tq. & Dist. Parbhani. ... Applicant
(Orig. Informant)
Versus
1. Munjaji @ Pappu S/o. Shivaji Kachhave,
Age : 35 years, Occu. : Agri.,
2. Hanuman S/o. Shivaji Kachhave,
Age : 30 years, Occu. : Agri.,
3. Gangubai W/o. Shivaji Kachhave,
Age : 30 years, Occu. : Agri.,
4. Sau. Yeshoda W/o. Munjaji @
Pappu Kachhave, Age : 30 years,
All R/o. Indewadi, Tq. & Dist. Parbhani. ... Respondents.
(Orig. Accused)
...
Mr. A. M. Phule, APP for Applicant - State
...
CORAM : SMT. VIBHA KANKANWADI AND
ABHAY S. WAGHWASE, JJ.
DATED : 10th JULY, 2023
ORDER (PER ABHAY S. WAGHWASE, J.) :
1. By invoking section 378(1)(b) of the Code of Criminal
Procedure (Cr.P.C.) State has preferred instant application praying
for grant of leave to appeal against judgment and order passed by
Additional Sessions Judge, Parbhani in Session Trial No. 133 of
2016, dated 30.10.2018.
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2. The sum and substance of the argument advanced by
learned APP is that, present respondents were made to face trial
for charge under sections 302, 324, 323, 504 read with 34 of
Indian Penal Code (IPC). Elaborating the case of prosecution in the
trial court, it is submitted that, on 12.05.2016, respondent no.1
was annoyed due to land dispute. In such backdrop, all accused
persons went to the feld on 12.05.2016. At around 10:00 to 10:30
a.m., respondent no.1 Munjaji initially bite Nilesh and thereafter
with intention to cause death, hit stone on vital part of head of
deceased Bhausaheb. The injury turned down to be fatal. That,
treating doctor and autopsy doctor were examined by prosecution.
Deceased died on 17.05.2016. Accused are solely responsible for
death of Bhausaheb which was nothing short of homicidal one.
That, there was evidence of injured witness along with other eye
witnesses. That, prosecution had examined in all 13 witnesses. All
their testimonies were intact. It is submitted that thereby
prosecution had established all the charges. However, learned trial
court erred in appreciating the evidence on record and has
wrongly acquitted accused persons. There is improper appreciation
of evidence and failure to appreciate settled legal position. It was
unwarranted acquittal and therefore, it is submitted that, State is
desirous of challenging the said judgment and order and hence, as
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there is every of hope of succeeding, it is submitted that instant
application be granted.
3. We have carefully gone through the evidence placed
before trial court. It seems that in all 13 witnesses have been
examined by prosecution. The incident in question seems to be fall
out of land dispute. Prosecution seems to have examined PW2
Yogesh, i.e. son of deceased at Exh.29. His evidence suggests that
on 12.05.2016, deceased Bhausaheb, injured Nilesh and Laxman
went to land gut no.244. Respondent Munjaji was demanding 2
acres land more. He initially assaulted Laxman by stone.
Thereafter, according to this witness, Munjaji assaulted his father
Bhausaheb on his left parietal region, as a result of which deceased
become unconscious and was taken to hospital. Injured Nilesh also
is examined as PW5 at Exh.39 and he too has stated that present
respondents abused deceased on refusal to give share in the land.
This witness also stated that present respondent Munjaji initially
hit this witness and when his father came to his rescue, respondent
Munjaji hit him on the head with stone, whereas respondent
Gangubai and Yeshodabai threw chili powder in their eyes.
Likewise, prosecution has examined PW7 Sakharam,
who claimed to be acquainted to both accused and deceased. He too
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has stated that Munjaji hit Bhausaheb with stone. Both, Bhausaheb
and injured Nilesh, were taken to hospital. PW12 Narsing also
stated that in his presence Munjaji initially bite Nilesh and
thereafter assaulted Bhausaheb on the head.
4. Apart from above oral evidence, in support of injury,
prosecution has examined medical experts, i.e. PW8 Dr.Ankit, PW9
Dr.Ruturaj, PW10 Dr.Vitthal and PW11 Dr. Pratap, autopsy doctor.
Autopsy doctor claims to have noticed contusion over left parieto
temporal area of head and depressed circular fracture in left
temporal area of bone of skull. He has also narrated the internal
examination fndings and he gave measurement of the injury. In
his opinion, death was due to head injury.
5. We have also gone through the impugned judgment. It
is noticed by us that learned trial Judge has appreciated the entire
evidence adduced by prosecution, but has disbelieved prosecution
story and the testimonies by opining that no prompt cognizance
has been taken by police. We have also found that, in para 27 of
the judgment, learned trial Judge has observed that there is
recovery of two stones (Article-1 and Article-2), but none of the
prosecution witnesses is able to state which stone was hit. We have
also come across observations of trial court in para 27 that
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prosecution failed to prove whether injury to the deceased was
caused by Article-1 or Article-2. Unfortunately, above discussed
evidence does not seem to be properly appreciated. Learned trial
Judge ought to have considered the circumstances in which alleged
occurrence has taken place as narrated by eye witnesses including
injured and even medical expert's evidence ought to have been
properly appreciated. Therefore, the same having not been done,
we consider it a ft case for re-appreciation and re-analysis of the
evidence, i.e. by way of appeal. Consequently, State having made
out a case for grant of leave, we proceed to pass following order :-
ORDER
(i) Application stands allowed.
(ii) Leave is granted to the prosecution to fle Appeal.
(iii) Registry to register the Appeal.
(iv) Appeal stands admitted.
(v) Call record and proceedings.
(vi) Action under section 390 of the Code of Criminal
Procedure be taken against the respondents to the
satisfaction of the trial court.
(ABHAY S. WAGHWASE, J.) (SMT. VIBHA KANKANWADI, J.)
Tandale
