Bombay High Court
The State Of Maharashtra vs Ganesh S/O. Vasant Kakde on 27 September, 2023
Bench: V. V. Kankanwadi, Abhay S. Waghwase
2023:BHC-AUG:21003-DB
ALS-165-2019
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
APPLICATION FOR LEAVE TO APPEAL BY STATE NO. 165 OF 2019
The State of Maharashtra
Through : Daithana Police Station,
District Parbhani. ... Applicant
Versus
Ganesh s/o Vasant Kakde,
Age: 28 years, Occu: Service,
R/o. Ramabai Ambedkar Nagar,
Parbhani. ... Respondent [Orig. Accused]
.....
Mr. S. D. Ghayal, APP for the Applicant-State
.....
CORAM : SMT. VIBHA KANKANWADI AND
ABHAY S. WAGHWASE, JJ.
Reserved on : 21.09.2023
Pronounced on : 27.09.2023
ORDER [ABHAY S. WAGHWASE, J.] :
1. Getting dissatisfied by the judgment and order passed by
learned Sessions Judge, Parbhani in Sessions Case No. 83 of 2017
dated 11.04.2019, thereby acquitting present respondent from charge
under Section 302 of the Indian Penal Code [IPC], instant application
has been filed praying to grant leave.
2. Learned APP appraises us about the prosecution case in the trial
court. He submitted that there is direct evidence. Accused was seen by
informant (PW1 Uttam) and also grand daughter of victim (PW2
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Alanka), who was sleeping next to deceased. That, PW3 Prabhawati
and PW7 Vitthal had also reached at the spot within minutes and they
had all seen accused with a stick. Deceased had suffered head injury.
Informant PW1 had attempted to catch hold of respondent, but to
save life of injured, they concentrated on shifting her to hospital.
That, same night deceased was declared dead. She had suffered
intracranial injury and autopsy doctor is very categorical about death
to be homicidal and injury to be sufficient in the ordinary course of
nature to cause death. That, in spite of such overwhelming evidence,
it is his submission that, learned trial court has given undue
importance to minor omissions and failure of informant to lodge
complaint immediately. He added that in fact, incident had taken
place around 11.00 p.m. and FIR is lodged early in the morning of the
next day. Therefore, there is no delay. Evidence of PW1 informant,
PW2 Alanka, PW3 Prabhawati and PW7 Vitthal was consistent and
therefore, it is his submission that, prosecution had established the
charge beyond reasonable doubt against the accused, however,
learned trial court failed to appreciate the said evidence and has
thereby erred in acquitting the accused. Hence, it is pointed out that
they have very good case in appeal and so, leave is prayed for.
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3. In the light of above submissions, we have considered the
papers placed before us. It transpires that in support of above case,
prosecution has examined in all nine witnesses. PW1 Uttam seems to
be the informant. In the initial evidence, he has spoken about accused
to be his brother-in-law and he quarreling with his sister and
consequently, about initiation of proceedings by his sister under
Section 498-A of IPC. Regarding occurrence, he deposed that on the
night of 19.05.2017, he slept in a shed and whereas his sister slept
with her child in the house and his mother slept in the company of his
nieces Alanka and Vaishnavi. According to him, around 11.00 p.m.,
he heard shouts of Alanka and Vaishnavi and so he woke up and saw
accused giving blow of stick on the head of his mother. According to
him, he prevented accused and even caught hold of him, but his sister
Prabhawati, who also reached there, asked him to leave accused and
to take mother to hospital and therefore, he took her to Parbhani Civil
Hospital.
4. To this extent, even PW2 Alanka - a child witness and PW3
Prabhawati - sister of PW1 are examined. They are all speaking about
occurrence of assault taking place around 11.00 p.m. and naming
accused to have inflicted blow with stick on deceased. All these
witnesses are subjected to extensive cross by defence.
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5. Apart from above so-called direct evidence, prosecution has
also adduced evidence of autopsy doctor i.e. PW4 Dr. Kale, who
claims to have noticed intracranial hemorrhage due to head injury.
After she was declared dead, FIR seems to have been lodged by PW1
Uttam. From the answers given by PW1 Uttam, it is emerging that in
order to give priority to shifting the injured, he did not pass
information immediately to neighbours or relatives and even not
reported the authorities at the Civil Hospital regarding assault or
naming accused. However, complaint is apparently lodged at 8.46
a.m. on the very next morning.
6. We have gone through the judgment which is now sought to be
challenged. In our view, opinion of learned trial court is based on not
informing relatives and villagers immediately and not informing
hospital authorities regarding assault. In our opinion, when witness
has volunteered that they focused on shifting and giving treatment to
injured, it is probable that such information may not have been
promptly passed to the relatives or villagers. Apparently, occurrence
has taken place somewhat around midnight hours at Shinganapur,
whereas, deceased was required to be shifted at Parbhani Civil
Hospital. Therefore, under such circumstances, there may not have
been prompt information to others. Apart from the testimony of PW1
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informant, PW2 Alanka and PW3 Prabhawati, there is evidence of
PW7 Vitthal also, who claims to have woke up hearing shouts while
he was on terrace of the house. He has also marked presence of
accused. Therefore, with such material on record, we think that it is a
fit case for re-appreciation and re-analysis during appeal. Therefore,
we are inclined to allow the application. Hence, the following order :
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.]
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