Bombay High Court
Sambhaji S/O. Rajabhau Bhosale vs The State Of Maharashtra And Anr on 2 March, 2023
Bench: V. V. Kankanwadi, Y. G. Khobragade
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
910 APPLICATION FOR LEAVE TO APPEAL BY STATE NO.146 OF 2019
THE STATE OF MAHARASHTRA
VERSUS
ABHIJEET SUBHASH MORE
...
Mr. R.V. Dasalkar, APP for applicant
...
WITH
CRIMINAL APPEAL NO.403 OF 2020
SAMBHAJI RAJABHAU BHOSALE
VERSUS
THE STATE OF MAHARASHTRA AND ANOTHER
...
Mr. B.R. Kedar, Advocate for appellant
Mr. R.V. Dasalkar, APP for respondent No.1
...
CORAM : SMT. VIBHA KANKANWADI AND
Y.G. KHOBRAGADE, JJ.
DATE : 02nd MARCH, 2023
PER COURT :
1 Present application for leave to appeal has been filed by the
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State to challenge the acquittal of the respondent by learned Additional
Sessions Judge, Bhoom, Dist. Osmanabad in Criminal Appeal No.8/2014 for
the offence punishable under Section 326, 324, 506 of the Indian Penal Code,
1860 by Judgment and order dated 20.03.2019, thereby setting aside the
conviction of the respondent awarded by learned Judicial Magistrate First
Class, Paranda, Dist. Osmanabad in Regular Criminal Case No.154/2003 on
28.08.2013. The learned Judicial Magistrate First Class, Paranda had held
the respondent guilty of committing offence punishable under Section 326,
324, 506 of the Indian Penal Code. It will not be out of place to mention
here that the original informant has also filed Criminal Appeal No.403/2020
under Section 372 of the Code of Criminal Procedure to challenge the same
Judgment and order by the learned Appellate Court.
2 At the outset, it is to be noted that the Trial Court had held the
original accused guilty of committing offence, however, in his appeal he has
been acquitted.
3 Heard learned APP Mr. R.V. Dasalkar for the applicant in A.L.S.
No.146 of 2019 and learned Advocate Mr. B.R. Kedar for the appellant in
Criminal Appeal No.403 of 2020.
4 The prosecution had examined in all nine witnesses to bring
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home the guilt of the accused. PW 6 Sambhaji Bhosale is the informant and
PW 8 Sopan Wadkar is eye witness. However, it has been noticed that PW 1
Jamir Sikandar, PW 8 Sopan Wadkar and PW 2 Atul Thakur, recovery panch,
PW 3 Shrikrishna Patil and PW 4 Mahaveer Thakur are the spot panchas and
all of them have not supported the prosecution. However, the fact remains is
that the testimony of PW 6 informant appears to be corroborative by medical
evidence in the form of PW 5 Dr. Anand Mane and PW 9 Dr. Jyoti Kalyani.
The prosecution story, it appears that informant had gone to Paranda on
10.11.2003 and after completing his work he was proceeding towards Barshi
on motorcycle. When he was near the Paranda Police Station gate around
2.00 p.m., the accused who was on his motorcycle came from behind and
gave dash to the motorcycle driven by the informant. The informant was
having a pillion rider Atul Kale PW 7. They both fell down. It is further story
that after the informant and his pillion rider fell down, informant asked the
accused as to why he had given dash and then accused started assaulting the
informant by a stick, which was near the motorcycle. It also appears that the
informant had also filed accident claim petition for getting compensation i.e.
Motor Accident Claim Petition No.282/2004 and had received the
compensation. Definitely, merely because he is getting the compensation,
that does not mean that the further story is false. The assault is stated to be
after the accident. From the medical evidence it can be revealed that the
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informant had sustained grievous injury to his stomach. In fact, it was
resulted in rupturing of his spleen due to breaking of 10 th rib and there was
accumulation of blood in the inner lining of the abdominal call and the
internal abdominal organs, due to which he underwent surgery. He has
taken treatment as an indoor patient from 10.11.2003 to 20.11.2003. Under
such circumstance, though certain witnesses appeared to have turned hostile;
yet, whether the testimony of PW 6 the informant-appellant and PW 7 Atul
Kale together with medical evidence was sufficient to hold the accused guilty
will have to be re-appreciated, especially on the documents the Trial Court
had held him guilty but on the re-appreciation the Appellate Court has
intervened. Whether the intervention of the Appellate Court was justifiable,
is a question. Therefore, leave deserves to be granted to the State as well as
the appeal filed by the informant under Section 372 of the Code of Criminal
Procedure deserves to be admitted. Hence, following order.
ORDER
1 Application for Leave to Appeal by State No.146 of 2019 stands
allowed. Leave is granted to the prosecution to file appeal and registry to
register the appeal.
2 Both appeals stand admitted.
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3 In both the appeals, issue notice to respondents. Learned APP
waives notice for respondent No.1 in Criminal Appeal No.403 of 2020.
Notice of respondent - original accused Abhijit Subhash More in both the
appeals is made returnable on 31.03.2023.
4 Action under Section 390 of the Code of Criminal Procedure be
taken against the original accused and that should be to the satisfaction of
Trial Court i.e. Judicial Magistrate First Class, Paranda, Dist. Osmanabad.
5 Call Record and Proceedings with paper book.
( Y.G. Khobragade, J. ) ( Smt. Vibha Kankanwadi, J. )
agd
