The State Of Maharashtra vs Radhakisan Eknath Borade
2023 Latest Caselaw 10185 Bom

                                        1                       ALS 132 OF 2020.odt


             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

       APPLICATION FOR LEAVE TO APPEAL BY STATE NO.132 OF 2020

The State of Maharashtra,
Through Police Station Officer,
Police Station Georai,
Tq.Georai, Dist.Beed.                            ..Applicant

                   Versus

Radhakisan Eknath Borade
Age: 54 years, Occu.: Agriculture,
R/o. Bangali Pimpla, Tq.Georai,
Dist.Beed.                                       ..Respondent
                                                 (Original Accused)
                                     ...
                      APP for Applicant : Mr.S.D.Ghayal
                                     ...

                                  CORAM : SMT. VIBHA KANKANWADI AND
                                          ABHAY S. WAGHWASE, JJ.

                                  RESERVED ON   : 26 SEPTEMBER, 2023
                                  PRONOUNCED ON : 3 OCTOBER, 2023

ORDER (PER ABHAY S. WAGHWASE, J.) :

1. Vide instant application for leave to file appeal State is taking

exception to the judgment and order passed by the learned Additional

Sessions Judge, Beed in Sessions Case No.128 of 2016 dated 07-08-2020 by

which respondent has been acquitted from charge under Sections 302 of the

Indian Penal Code (IPC).

2. Learned APP for the applicant took us through the entire evidence and

2 ALS 132 OF 2020.odt

would submit that here there is direct eye witness account. That PW1 Savita

Sunil Borade, wife of deceased as well as PW2 Kalyan Radhakisan Chaudhary

had seen the occurrence of assault on deceased. That the assault was made

by sickle. That there are multiple injuries. That deceased succumbed to

multiple injuries. That dying declaration of deceased was recorded.

Therefore, apart from direct evidence, there is evidence of very deceased, who

was injured at that time. There is recovery at the instance of accused.

Therefore, there is overwhelming evidence in support of the prosecution case.

Further it is pointed out that the learned trial Court has refused to accept the

case of prosecution as proved by assigning improper reasons. Direct evidence

has not been appreciated properly and has been discarded on flimsy ground.

Thus, it is pointed out that there is total non-application of mind and hence,

leave to file appeal is prayed for.

3. In the light of above submission, we have gone through the record

before us. It transpires that in support of its case, prosecution has examined in

all 13 witnesses including PW1 Savita, wife of deceased, who is eye witness

and PW2 Kalyan, another eye witness, PW6 Pandharinath Kisanrao Sasane,

Police Officer who recorded dying declaration, PW12 Dr.Poonam

Rameshwarsingh Lodh, who certified fitness followed by Panchas and Police

Officers.

                                         3                        ALS 132 OF 2020.odt


4.    We have prima facie      gone through the evidence on record, more

particularly, evidence of PW1 Savita and PW2 Kalyan. PW1 Savita, wife of

deceased claims that on hearing commotion, she came out of house and saw

husband lying on ground and accused respondent sitting on him. She

narrated whatever she saw about use of sickle for inflicting injuries. PW2

Kalyan also claims that he saw assault on deceased. They both claim that

deceased gave oral dying declaration about he being injured by respondent

after questioning visit of son of informant and deceased to their area. Son has

not been unfortunately examined however, evidence of PW1 Savita and PW2

Kalyan is found to be consistent about seeing occurrence. Learned trial Judge

has discussed the evidence of these two witnesses in respect of who reached

after whom i.e. whether PW1 Savita reached subsequently or PW2 Kalyan

reached subsequently. Here PW6 Pandharinath, Police Officer, who has

recorded dying declaration is also examined. PW7 Dr.Ganesh Dhondiraj

Niturkar, Autopsy Doctor attributed death to homicidal injury. Learned trial

Court has also accepted death of Sunil as homicidal one.

5. Consequently, it is a fit case for re-examination, re-analysis and re-

appreciation of evidence. Therefore, in our view, prosecution deserves a

chance to come in appeal. Resultantly, we proceed to pass the following

order :

                                                                    4                         ALS 132 OF 2020.odt


                                                              ORDER


                               (I)     Application stands allowed.


                               (II)    Leave is granted to the prosecution to file 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 respondent to the satisfaction of the trial Court.

(ABHAY S. WAGHWASE, J.) (SMT. VIBHA KANKANWADI, J.)

SPT

Signed by: Santosh P. Takalkar Designation: PA To Honourable Judge Date: 03/10/2023 17:29:36