The State Of Maharashtra vs Venkati S/O. Ravan Chole And ...
2023 Latest Caselaw 2945 Bom

                                                                       13ALS34-18
JPChavan

                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

          13 APPLN. FOR LEAVE TO APPEAL BY STATE NO.34 OF 2018

                        THE STATE OF MAHARASHTRA
                                     VERSUS
                  VENKATI S/O. RAVAN CHOLE AND OTHERS
                                       ...
               APP for Advocate for Appellant : Ms. V. S. Chaudhari


                        CORAM       :   SMT. VIBHA KANKANWADI &
                                        Y. G. KHOBRAGADE, JJ.
                        DATE        : 27th March, 2023


ORDER:

1. The present application has been filed seeking leave under

section 378 (1) (b) of the Criminal Procedure Code by the prosecution

to challenge the judgment and order dated 05.12.2017 passed by the

learned Additional Sessions Judge, Udgir Dist. Latur in Sessions Case

No.15 of 2014 thereby acquitting the respondents from the offences

punishable under sections 143, 147, 148,506,307 read with section

149 of the Indian Penal Code and under section 135 of the Bombay

Police Act.

2. Heard learned APP and with the help of her, we have gone

through the documents and depositions which were before the learned

trial judge.

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3. The prosecution story, in short, is that the informant PW-1

Ramesh has agricultural land within the jurisdiction of village Kolnur

Tq. Jalkot Dist. Latur. He had gone to his field alongwith his wife

Premalabai at around 11.00 p.m. on 11.02.2014 to look after his

thrashed tur crop. It is then said that all the accused persons came

under the influence of liquor and started to quarrel with the informant

as to why he has uprooted the gram crop. The accused started beating

Premalabai with stick. When the informant Ramesh interfered, the

accused Shankar gave two stab injures by means of knife which resulted

in bleeding injuries to the informant. The other accused persons had

abused and assaulted the informant as well as Premalabai with fists,

kicks and stick and thereafter they ran away. Premalabai then brought

the informant to their house in the village in injured condition and

thereafter, the son and Premalabai shifted the injured informant in a

Auto rickshaw to the Hospital and before that they had taken him to

Jalkot Police Station. At the Police Station, his statement was not

recorded but only the Yadi was given. The FIR of the victim was

recorded on 13.02.2014 on the basis of which Crime No. 13 of 2014

came to be registered.

4. After the investigation, charge-sheet was filed and then trial

was undertaken.

13ALS34-18

5. The prosecution has examined in all ten witnesses in order to

bring home the guilt of the accused. After hearing both the sides and

perusing evidence on record, the learned Additional Sessions Judge,

Udgir has acquitted all the accused persons and that acquittal is under

challenge in this proceeding.

6. At the outset, we would like to make it very clear that we

would be considering the evidence only for a limited purpose at this

stage, as to whether the case is made out for grant of leave. The

testimony of PW-1 Ramesh appears to be well corroborated by PW-3

Premalabai. Both have stated that they had gone to sleep as they were

preparing crop at night time in their field at around 11.00 p.m. on

11.02.2014 and thereafter the accused persons came and assaulted

them. Role has been attributed to each of the accused, especially, to

the accused Shankar who had stabbed the informant two times.

Further, it will not be out of place to mention at this stage itself that the

informant was examined by the medical officer (PW-2) of Rural

Hospital, Jalkot around 2.30 a.m. on 12.02.2014. He had noted two

stab injuries, one was over hypocondric region towards right side and

another was towards left side. He has given size of the injuries also

and then he had also noted the third injury in the form of CLW at

sedital region margin. In clear words, he has stated that the nature of

injuries were simple but according to him, for the first and second

13ALS34-18

injuries, the weapon that was used might be hard and sharp, whereas

for the third injury, the weapon used would be hard and blunt. The

injuries were within 24 hours and he has stated that injury Nos. 1 and 2

were possible by knife, whereas the injury no.3 was possible by stick.

He has also stated that the stab injury may require one days time to

recover in normal condition of health. However, if sharp weapon is

used, then death might be caused due to such stab injury.

7. Further, piece of evidence is PW5 Yadav Fad who was the

panch witness to the seizure of clothes of the informant and accused.

At this stage, it appears that the panchanama regarding discovery of

the weapon was proved through the investigating officer. Whether it

can be taken further to connect the crime with accused or not would be

considered at the time of final stage. However, the evidence that is

taken note of up-till now would be sufficient to consider the application

as there appears to be prima facie corroboration. It can also be seen

from the impugned judgment that the testimony of the informant as

well as his wife has been discarded mainly on the ground that there was

delay in lodging the FIR and both of them had not raised their voice or

made it known to the villagers about the incident.

8. Appreciation would be required taking into consideration the

place where the offence has taken place and the time at which it is said

to have been committed. Whether the evidence that was adduced

13ALS34-18

proves the offence under section 307 of IPC or any lesser offence is

also required to be considered taking into consideration the fact that

the the opinion that has been given by the medical officer that the

injuries those were found on the person of the informant were simple

in nature. The situs chosen is also required to be considered from the

point of offence under section 307 of IPC. Therefore, we arrive at the

conclusion that case is made out to grant leave. Accordingly, leave is

granted to the State to file appeal.

9. The Registry to verify and register the appeal.

10. The appeal stands admitted.

11. Call record and proceedings with paper book.

12. Issue notice to the respondents, to be made returnable on 08.06.2023.

13. Compliance under section 390 of the Criminal Procedure Code should be before the trial Court.

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