The State Of Maharashtra v. Kailas Dashrath Dhotre And Others
{1} ALS 118 OF 2018
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD APPLICATION FOR LEAVE TO APPEAL BY STATE NO.118 OF 2018 The State of Maharashtra, Through Police Inspector, Pathardi Police Station, Dist. Ahmednagar.
..Applicant
VERSUS
1.
Kailas Dashrath Dhotre Age : 24 years.
2.
Vijay Bapu Dhotre Age: 29 years.
3.
Raju Bapu Dhotre Age: 35 years.
4.
Dashrath Bapu Dhotre Age: 50 years.
All R/o. Ambika Nagar, Takali Manur, Tq. Pathardi, Dist. Ahmednagar.
..Respondents (Ori. Accused) ...
APP for Appellant-State : Mr. S. D. Ghayal ...
CORAM : SMT. VIBHA KANKANWADI & ABHAY S. WAGHWASE, JJ.
RESERVED ON : 6th July, 2023 PRONOUNCED ON : 12th July, 2023 ORDER (PER ABHAY S. WAGHWASE, J.) :
1.
As State intends to prefer appeal against the judgment and order of acquittal dated 06.02.2018 passed by the learned Additional
{2} ALS 118 OF 2018 Sessions Judge, Ahmednagar in Session Case No.12 of 2015, it is hereby seeking leave to file appeal.
2.
According to learned APP, present respondent nos.1 to 4 were chargesheeted for commission of offence under Sections 307, 323, 504, 506 r/w Section 34 of the Indian Penal Code (IPC). It is submitted that alleged incident had taken place on 05-04-2014. While injured PW1 Shivaji (informant) was proceeding in front of the house of accused no.2 Vijay, accused nos.1 to 4 approached him. Accused persons questioned him by saying that his brother Laxman is trying to be a leader and thereafter, it is stated that, accused persons assaulted him. Accused no.1 Kailas assaulted PW1 Shivaji by means of iron rod on his head and right shoulder. PW2 Laxman, i.e. brother of informant, rushed to the spot of occurrence and took the informant to hospital. There informant lodged report Exh.35. 3.
It is further pointed out that injured PW1 Shivaji as well as PW2 Laxman, who has immediately reached to the spot and shifted PW1 Shivaji to the hospital, are examined by prosecution. Their evidence is consistent and corroborating each other on the point of assault. Medical evidence was also adduced in support of injuries
{3} ALS 118 OF 2018 suffered by PW1 Shivaji. That in spite of clear case being made out for commission of offence of attempt to commit murder, learned trial Judge has acquitted accused from all the charges. It is pointed out that essential ingredients for attracting the charges are very much available in the evidence on record. A full-proof case was made out against the accused. The testimonies of very injured and his brother have not been appreciated by the learned trial Judge and thereby learned Judge has erred in acquitting the accused persons in serious offence and as such, State intends to challenge the same by filing appeal and hence the prayer for leave to file appeal. 4.
In the light of above submissions, we have examined evidence available before the trial Court. PW1 Shivaji seems to be alleged injured and informant. PW2 Laxman seems to be his brother. PW3 Shobha seems to be sister-in-law of PW1 Shivaji. PW4 Bhaskar is panch to spot panchnama. PW5 PSI Krushna Jopale is the Investigating Officer. PW6 Dr. Kalamkar examined and treated the informant. PW7 ASI Batule and PW8 PHC Kakade are Police Officials. Apart from above oral account, prosecution seems to have adduced on record panchanama, memorandum of seizure and injury certificate.
{4} ALS 118 OF 2018 5.
On going through the above evidence, it is seen that evidence of injured and his brother, who shifted him to hospital after reaching the spot, is significant.
6.
We have noticed that evidence of PW1 Shivaji goes to show that alleged incident took place on 05-04-2014 and that there was previous dispute already existing. This witness stated that accused caught hold of him and after questioning him, accused no.1 Kailash hit blow of iron rod on the head as well as on right shoulder and he was taken to the hospital and so he lodged FIR Exh.35. In crossexamination also he seems to have answered that he suffered contusion and haematoma and he did not suffer fracture injury. 7.
PW2 Laxman, brother of PW1 Shivaji also stated about hearing noise and going out and seeing accused persons hitting his brother with iron rod, fist and kick blows. He also spoke about previous dispute.
8.
PW3 Shobha also narrated about assault on PW1 Shivaji by iron rod.
{5} ALS 118 OF 2018 9.
PW6 Dr.Sandip narrated the injuries noticed by him on examining PW1 Shivaji. He identified injury certificate issued by him which is at Exh.48.
PW7 Jagannath and PW8 Dadasaheb are Police Officials. 10.
Taking into account above substantive evidence, it has come on record that in backdrop of previous dispute, PW1 Shivaji was assaulted with iron rod. Medical evidence confirms injury. Here learned trial Judge had disbelieved above evidence and has acquitted accused from all charges. In the light of availability of injured witness account, who is informant himself, coupled with evidence of PW2 Laxman and PW3 Shobha, we are convinced that incident of assault had taken place resulting into injury and that is demonstrated by prosecution.
Therefore, in our opinion, whether offence under Section 307 of IPC was made out and if not, then which offence would be attracted needs to be carefully examined thereby necessitating reanalysis, re-appreciation of evidence. 11.
Resultantly, case being made out for grant of leave, we propose to pass the following order :
{6} ALS 118 OF 2018
ORDER
I.
The 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 respondents to the satisfaction of the trial Court. ( ABHAY S. WAGHWASE ) ( SMT. VIBHA KANKANWADI ) JUDGE JUDGE SPT