The State Of Maharashtra vs Shankar Ganapati Rahatol

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 799 OF 2010

STATE OF MAHARASHTRA .. APPELLANT(S)

VERSUS

SHANKAR GANAPATI RAHATOL .. RESPONDENT(S) & ORS. with

CRIMINAL APPEAL NO. 798 OF 2010

CRIMINAL APPEAL NO. 800 of 2010

CRIMINAL APPEAL NO.197 OF 2019 (@out of SLP(Crl.) No. 3359 OF 2010)

J U D G M E N T

R.SUBHASH REDDY, J.

1. The State of Maharashtra has preferred

this appeal aggrieved by the order dated

13.06.2008, passed by the High Court of

Judicature at Bombay, in criminal Application

Signature Not Verified No. 4504 of 2006. Digitally signed by CHARANJEET KAUR Date: 2019.02.04 17:21:25 IST Reason: 2. On 01.09.1998 a complaint was lodged by

one Shivram, who was examined as P.W.1 2

stating that on 29.08.1998 at around

9 O'Clock he was doing work in Hanuman Water

Supply Society, sitting at Kalamma Milk

Dairy. At that time the loud speaker was

switched off. When he came out of Milk Dairy

to know whey loud speaker was switched off,

he found Ananda Ganpati Rhatol, Shankar

Ganpati Rhatol, Yashvant Shripati Rhatol,

Shivaji Bapu Khot, Rangrao Piraji Angaj,

Shankar Ganu Metil, Samadhan Shankar Metil,

Damodar Tukaram Raut, Ramesh Damodar Taut,

Dattatraya Vasant Rhatol, Baburao Dattatray

Rhatol, Baburao Jaysingh Rhatol, Ganpati

Krishna Powar, Hanumant Krishana Powar and

other persons approaching towards him and

they had attacked and assaulted him. In the

said attack, he stated that he was injured

and hospitalized. Subsequently, after

recovery, he lodged complaint on 01.09.1998,

based on which FIR No. 1165/1998 was

registered. Based on the complaint lodged, 3

investigation was made and the respondents

herein were charged for offences punishable

under Sections 143, 147, 323 read with 149,

325 of I.P.C. and 135 of Bombay Police Act.

After charge sheet was filed, case was tried

by the learned 5th Additional Sessions Judge,

Kolhapur. Vide judgment dated 06.09.2005 all

the accused were acquitted of the charges

framed against them.

3. The appellant-State has filed application

seeking leave to prefer appeal as

contemplated under Section 378(3) of Cr.P.C.,

1973, which was numbered as criminal

application No. 4504 of 2006. The aforesaid

application was rejected by impugned order

dated 13.06.2008 and the High Court declined

leave to appeal. Hence this appeal by the

State.

4. We have heard learned counsel for the

State as well as the counsel appearing for

the respondents-accused and perused order 4

dated 13.06.2008 and other material placed on

record. In support of the case, a reliance

is placed by counsel for the appellant-State

on the judgment in the case of State of

Maharashtra vs. Sujay Mangesh Poyarekar,

reported in (2008) 9 SCC 475. In the

aforesaid judgment, the scope of Section

378(3), Cr.P.C. has been considered by this

Court. The relevant paragraphs 20 and 21 of

the aforesaid judgment reads as under :

"20. In our opinion, however, in deciding the question whether requisite leave should or should not be granted, the High Court must apply its mind, consider whether a prima facie case has been made out or arguable points have been raised and not whether the order of acquittal would or would be set aside.

21. It cannot be laid down as an abstract proposition of law of universal application that each and every petition seeking leave to prefer an appeal against an order of acquittal recorded by a trial court must be allowed by the appellate court and every 5

appeal must be admitted and decided on merits. But minute details of the prosecution evidence and refuse leave observing that the judgment of acquittal recorded by the trial court could not be said to be "perverse" and, hence, no leave should be granted."

5. Further, we have noticed from the

impugned order that while rejecting the

application, the High Court has stated that

medical evidence did not indicate any injury

on the back or on the thigh of the

complainant. However, from the material

placed on record, it appears that the said,

finding in the order run contrary to the

medical evidence on record. Dr. Yashwant who

was examined as P.W. 5, in his deposition,

categorically stated that the complainant

Shivram had sustained a fracture of left

tibia and there were also lacerated wounds.

The medical evidence documents were exhibited

as Exhibits 121 and 131. The reason for

rejecting the application for leave to appeal 6

run contrary to evidence on record. In any

event, having perused the material on record,

we are of the view that, prima facie, a case

is made out by the State for grant of leave

to prefer appeal against the judgment and

order dated 06.05.2005, passed by the 5th

Additional Sessions Judge, Kolhapur in

Sessions Case No. 140 of 2000.

6. We are also informed that there was a

cross complaint by other faction in the

village relating to same date incident on

which basis a case was registered and the

accused therein were tried in Sessions Case

No.83/1999. The accused therein were

convicted for offences under Section 143,

147, 307, 324, 427, 504, 395, 325, 337, 452

read with 149, 325 IPC. It is stated that

appeal preferred against that judgment is

pending before the High Court. As it is

stated that the two groups in the village

filed cross complaints and appeal arising out 7

of one is pending before the High Court, we

are of the view that it is a fit case for

grant of leave as prayed for by the

appellant-State.

7. For the aforesaid reason this appeal is

allowed and impugned order dated 13.06.2008

is set aside. Consequently, application

filed before the High Court stands allowed.

The criminal appeal preferred by the State

challenging the acquittal in Sessions Case

No. 140 of 2000 shall be taken on file.

8. In appreciation of the contention raised

by the respective parties, we request the

High Court to take up the appeal in terms of

this order, as well as Criminal Appeal No.

849 of 2005 simultaneously and decide the

same expeditiously.

CRIMINAL APPEAL NO. 197 OF 2019 (Arising out of SLP(Crl.) No. 3359 OF 2010)

9. Leave granted.

10. The complainant has filed criminal

Revision application No. 119 of 2006 before 8

the High Court aggrieved by the order of

acquittal passed in Sessions Case No.140 of

2000. The same is rejected on the basis of

the impugned order passed in Criminal

Application No. 4504 of 2006.

11. We are of the view that as the impugned

order in Criminal Application No. 4504 of

2006 has already been set aside by this Court

in the appeal filed by the State, there is no

reason to reject the revision filed by the

complainant.

12. Accordingly, the impugned order dated

21.01.2010 in Criminal revision application

No. 119 of 2006 is set aside and the matter

is remitted to the High Court for fresh

consideration, to decide the criminal

revision on its own merit.

CRIMINAL APPEAL NO. 798 OF 2010 CRIMINAL APPEAL NO. 800 of 2010

13. In view of order passed in the aforesaid

appeals, it is stated that no further orders 9

are required to be passed in these appeals.

Accordingly, these appeals also disposed off.

..................J. [ R. BANUMATHI ]

...................J. [ R. SUBHASH REDDY ]

NEW DELHI, JANUARY 31,2019.