Dismissed

Khandu S/O Vithoba Waghmare v. Rajabhau S/O Chhaburao Salunke and Others

Bombay HC5 Jan 2017APEAL/470/2016

Case brief

AI extract

What is this about?

High Court bench dismissed an application for leave to appeal in a Sessions case under Section 372 Cr.P.C. held that victim must seek leave under Section 378 Cr.P.C. Rejected appeal as trial Court's acquittal view was plausible due to lack of evidence proving conspiracy or last seen company.

What did the court decide?

Application for leave to appeal rejected; Criminal Appeal stands dismissed.

Khandu S/O Vithoba Waghmare Vs Rajabhau S/O… — Civil Procedure and Limitation | Bombay HC (2017)

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6542.2016 Cri.Appln.+.odt

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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CRIMINAL APPLICATION NO.6542 OF 2016

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IN

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CRIMINAL APPEAL NO.470 OF 2016

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Khandu s/o.Vithoba Waghmare,
Age: 28 Yrs, Occu: Business,
R/o. Istal, Tq. Kej, Dist. Beed,
At present premises of Ranjani Karkhana,
Tq. Kallam, Dist. Osmanabad. APPLICANT
[Orig.Complainant]

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VERSUS

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1. Rajabhau s/o. Chhaburao Salunke, Age: 40 yrs, Occu: Agri & Hotel Business, R/o. Ghargaon, Tq. Kallam, Dist. Osmanabad.

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2. Ashok @ Babu s/o. Abhiman Bhosale Age: 21 Yrs, Occu: Panshop, R/o. Awadshirpura, Tq. Kallam, Dist. Osmanabad.

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3. Arun s/o. Jagannath Salunke, Age: 53 Yrs, Occu. Agri (Sarpanch), R/o. Ghargaon, Tq. Kallam, Dist. Osmanabad.

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4. Ashok s/o. Baburao Salunke, Age: 42 Yrs, Occu:Agri & Mukadam, R/o. Ghargaon, Tq. Kallam, Dist: Osmanabad.

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5. The State of Maharashtra RESPONDENTS

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[Resp.no.1 to 4
 orig.accused]

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6542.2016 Cri.Appln.+.odt

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WITH

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CRIMINAL APPEAL NO.470 OF 2016

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Khandu s/o.Vithoba Waghmare,
Age: 28 Yrs, Occu: Business,
R/o. Istal, Tq. Kej, Dist. Beed,
At present premises of Ranjani Karkhana,
Tq. Kallam, Dist. Osmanabad. APPLICANT

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[Orig.Complainant]

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VERSUS

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1. Rajabhau s/o. Chhaburao Salunke, Age: 40 yrs, Occu: Agri & Hotel Business, R/o. Ghargaon, Tq. Kallam, Dist. Osmanabad.

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2. Ashok @ Babu s/o. Abhiman Bhosale Age: 21 Yrs, Occu: Panshop, R/o. Awadshirpura, Tq. Kallam, Dist. Osmanabad.

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3. Arun s/o. Jagannath Salunke, Age: 53 Yrs, Occu. Agri (Sarpanch), R/o. Ghargaon, Tq. Kallam, Dist. Osmanabad.

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4. Ashok s/o. Baburao Salunke, Age: 42 Yrs, Occu:Agri & Mukadam, R/o. Ghargaon, Tq. Kallam, Dist: Osmanabad.

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5. The State of Maharashtra RESPONDENTS

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[Resp.no.1 to 4

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orig.accused]

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...

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Mr.Sanjay A. Wakure, Advocate for Applicant /
Appellant
Mr.M.M.Nerlikar, APP for the Respondent /
State

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...

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6542.2016 Cri.Appln.+.odt

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CORAM: S.S.SHINDE &

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K.K.SONAWANE,JJ.

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Date: 05.01.2017.

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ORDER: (Per S.S.Shinde, J.):

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1.Thepresentapplicant/appellant

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filed appeal on 08.08.2016 taking recourse to

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Section 372 of the Criminal Procedure Code.

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However, the Supreme Court in the case of

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Satya Pal Singh Vs. State of Madhya Pradesh and Ors.¹ and in particular in para 13 of the

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said judgment held that the right of
questioning the correctness of the judgment

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and order of acquittal by preferring an
appeal to the High Court is conferred upon

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the victim including the legal heir and

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others, as defined under Section 2 (wa) of

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Cr.P.C., under proviso to Section 372, but

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only after obtaining the leave of the High

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Court as required under sub-section (3) to

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Section 378 of Cr.P.C. Therefore, the

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appellant has also filed application in the

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1 2015 AIR SCW 6251

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6542.2016 Cri.Appln.+.odt

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pending Appeal on 29.11.2016, seeking leave
to appeal from the judgment and order dated
20.05.2016 passed by the Additional Sessions
Judge, Osmanabad in Sessions Case No.48/2014.

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2.The learned counsel appearing for

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the applicant/appellant submits that the
trial Court has not properly considered the
evidence of the prosecution witnesses and
reached to the erroneous conclusion to acquit
the respondents. It is submitted that, the
prosecution has brought on record sufficient
evidence, which would clearly demonstrate
that, the death of Vithoba was homicidal.

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There was previous enmity between Vithoba and
accused persons. He submits that, appellant
and Ashruba (PW-3) and his brother have
categorically deposed before the Court about
earlier enmity. It is submitted that, on
24.02.2013, accused had arranged a party/
dinner at cattle-shed of accused Arun and

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there conspiracy was hatched to commit murder

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6542.2016 Cri.Appln.+.odt

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of Vithoba, and accordingly, they committed
the murder of Vithoba. It is submitted that,

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the evidence of Khandu (PW1) and Ashruba
(PW3) unequivocally indicates that, the
relations between accused Arun and deceased
Vithoba were strained. It is submitted that,

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the deceased was looking after berry garden

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of accused Arun Salunke on batai-basis and
when there were good fruits to the said tree,
accused Arun asked their father to work in

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the garden on wages and not on batai-basis.
It is submitted that, the accused brought on
record motive for commission of offence and

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also other circumstances which would lead to
only hypothesis of guilt of the accused.
Therefore, the learned counsel appearing for

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the applicant/appellant submits that, the
application seeking leave to appeal deserves
consideration and the appeal may be admitted.

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3.The learned APP appearing for

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respondent–State adopted contention raised by

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6542.2016 Cri.Appln.+.odt

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the learned counsel appearing for the
applicant/appellant and submits that, the
appeal filed by the victim deserves
consideration.

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4.We have considered the submissions

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of the learned counsel appearing for the
applicant/appellant and the learned APP for
the respondent–State. With their able
assistance, we have perused the original
record and proceedings so as to find out
whether the findings recorded by the trial
Court are in consonance with the evidence

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brought on record and the view taken by the

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trial Court is plausible view. We have

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carefully perused the evidence of Khandu
(PW1) and Ashruba (PW3), to some extent their
evidence shows the previous enmity between

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one of the accused Arun and their father
deceased Vithoba. The prosecution did not
prove by convincing evidence that, the
deceased was last seen in the company of the

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6542.2016 Cri.Appln.+.odt

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accused. The prosecution did examine some
witnesses on that aspect. However, they
turned hostile. It is admitted position that,
the place of incident is not isolated and is
adjacent to the hotel run by the accused
persons. Though the prosecution alleged that,
the accused persons hatched conspiracy to
kill deceased, however no evidence was led to
prove such conspiracy. The law is well
settled that, in case of circumstance
evidence the prosecution should prove the
circumstances independently, and chain of
circumstances should be so complete that, it
should lead to only hypothesis of guilt of
the accused.

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5.Upon careful perusal of the findings

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recorded by the trial Court, we are of the

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considered view that, the view taken by the

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trial Court is a plausible view. In that view
of the matter, no case is established for
granting leave, and consequently admitting

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6542.2016 Cri.Appln.+.odt

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the appeal. Hence, the application seeking
leavetoappealstandsrejected.

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Consequently, Appeal stands dismissed.

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Sd/Sd/- [K.K.SONAWANE] [S.S.SHINDE] JUDGE JUDGE

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DDC

Khandu S/O Vithoba Waghmare v. Rajabhau S/O Chhaburao Salunke and Others

Case brief

What is this about?

What did the court decide?

Khandu S/O Vithoba Waghmare v. Rajabhau S/O Chhaburao Salunke and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Cases cited

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