The State of Maharashtra v. Dhanaji Gabaru Khilare and Ors.

Bombay HC18 Oct 2010APPLN/2528/2010

Case brief

AI extract

What is this about?

In this criminal application for leave to file an appeal against an order of acquittal, the High Court refused leave. The court held that the trial court's view, supported by internal inconsistencies in the only eye-witness's testimony, was a reasonable and possible view, and thus interference was not warranted.

What did the court decide?

Leave to file appeal is refused and application is rejected.

What the court decided

AI extract

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cr appln 252810.doc

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RMA

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPLICATION NO. 2528 OF 2010

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The State of Maharashtra

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.. Applicant

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Vs

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Dhanaji Gabaru Khilare & Ors

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.. Respondents

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Ms. U.V. Kejariwal, APP for the State

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CORAM : SMT. V.K. TAHILRAMANI, J

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DATE : 18th OCTOBER, 2010.

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The State of Maharashtra Vs Dhanaji Gabaru Khilare and Ors. — Landlord and Tenant | Bombay HC (2010)

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1.The applicant - State of Maharashtra has preferred this
application for leave to file appeal against the judgment and
order dated 22.01.2010 passed by the learned Judicial
Magistrate F.C., Jaysingpur, Dist. Kolhapur in R.C.C. No. 34
of 2008. By the said judgment and order, the respondents i.e
original accused came to be acquitted of the offences under
Section 435 read with 34 of IPC.

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2.The prosecution case briefly stated is that on 11th
April 2008 at about 2.00 am, at Village Danoli, all the
accused in furtherance of their common intention set fire to
the fodder of the complainant PW 2 Kavita. The informant is
not an eye witness to the incident. She has lodged FIR on

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3.Charge under Section 435 read with 34 of the IPC came
to be framed against the accused to which they pleaded not
guilty and claimed to be tried. Their defence is that of
total denial and false implication.

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4.I have heard the learned APP for the applicant-State of
Maharashtra. I have perused the judgment and order passed by
the learned Sessions Judge. I have also perused the evidence
produced by learned APP. After carefully considering the
matter, for the reasons stated herein below, I am of the
opinion that the judgment and order passed by the learned
Sessions Judge does not call for any interference.

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She has lodged the FIR on the basis of the information given
to her by PW 5 Jyoti. Kavita has stated that her children
told her that, accused said that, "Subhya, Amhi Tuzi Ganji
Petawanar Ahot" but during the cross-examination of PW 5
Jyoti, it appears that no such thing was informed by her to
her mother. In fact, she has specifically stated that at the
relevant time, no threat was given by any of the accused as

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6.PW 5 Jyoti is the only eye witness examined by the
prosecution, who has supported the prosecution case. She has
stated that at about 2.30 am, somebody knocked on the door
and said, 'Subhya Baher Ye'. She opened the door of the house
and saw that the accused were proceeding towards the fodder.
She has stated that accused Dhanaji and Praphul caught the
fodder in their hands while accused Khandu set it on fire.
She has stated that she saw this incident from the courtyard
of her house and after departure of the accused from the
spot, she raised hue and cry in response, Shri. Dhondiba and
Shri. Ashok came on the spot and extinguished the fire.

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It is pertinent to note that Shri. Dhondiba has not
been examined by the prosecution and Shri. Ashok who has been
examined has not supported the case of the prosecution. At
the time of the incident, Jyoti was about 17-18 years of age.
It has come in her evidence that her grandfather was present
in the house, however, despite the said incident taking
place, Jyoti has not tried to wake up her grandfather or
other persons in the house. This conduct on her part appears
to be unnatural.

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cry when she saw the accused proceeding towards the fodder or
they were setting the fodder on fire. A person would shout
for help before the incident occurred or at the time when the
incident occurs and not after the incident has taken place
and the accused had gone away. Thus, this conduct on the
part of Jyoti also appears unnatural.

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7.Another act of unnatural conduct on the part of Jyoti
is that immediately after witnessing the incident of fire,
she went to sleep. According to her, this incident occurred
at about 2.30 a.m. whereas according to her mother PW 1
Kavita, she reached home at about 3.00 a.m and woke up the
children. This means that immediately after the incident
occurred, within half an hour, Jyoti was fast asleep. This
does not at all seem possible. If really the incident of
setting the fodder on fire was witnessed by Jyoti at about
2.30 a.m., then it is not possible that at 3.00 am, she would
be fast asleep because if the fodder was set on fire at 2.30
a.m, she would be in a state of panic, she would wake up the
persons in her house, she would run helter- skelter for
help. It does not appear at all natural that she went to
sleep immediately after the incident took place.

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Magistrate has taken into consideration all the above facts
and thereafter, acquitted the respondents-original accused.
Looking to the evidence on record, I find that conclusion
arrived at by the learned JMFC is a reasonable and possible
view.

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9.The plenitude of power available to the Court hearing
an appeal against acquittal is the same as that available to
a court hearing an appeal against an order of conviction,
but, however, the court hearing an appeal against acquittal,
will not interfere solely because a different possible view
may arise on the evidence.

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Raghavan Nair reported in (2003) 1 SCC 1 has observed that
while hearing an appeal against an order of acquittal, if two
reasonable conclusions can be reached on the basis of
evidence on record, the appellate court should not disturb
the finding of the trial court. I have already observed that
the view taken by the learned JMFC is a reasonable and
possible view. Hence, I am not inclined to interfere in the
judgment and order of acquittal. In view of the above, leave
to file appeal, is refused.

The State of Maharashtra v. Dhanaji Gabaru Khilare and Ors.

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Case brief

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What the court decided

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

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