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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

No. 4504 of 2006.

2. On 01.09.1998 a complaint was lodged by

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

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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,

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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

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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

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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

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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

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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

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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

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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.