Case Note & Summary
The appellant, Dundawwa Shivappa Bagewadi, the mother of the deceased Anil, filed a criminal appeal under the proviso to Section 372 of the Code of Criminal Procedure, 1973, challenging the judgment and order dated 22nd April 2010 passed by the Additional Sessions Judge, Gadhinglaj, which acquitted the respondents of the offence under Section 302 read with Section 34 of the Indian Penal Code. The case was based on circumstantial evidence, including the deceased last seen with the accused and seizure of blood-stained clothes. The complainant (the mother) initially lodged an FIR on 8th January 2009 without implicating any accused, but later made allegations in a supplementary statement recorded two days later. The State had also filed an application for leave to appeal under Section 378(3) CrPC against the same acquittal, which was rejected by another Division Bench of the Bombay High Court on 13th September 2010. The appellant argued that the victim's appeal under the proviso to Section 372 is a matter of right and should be heard independently of the findings recorded while rejecting the State's leave application. The court considered the submissions and examined the earlier order. The Division Bench, in its order dated 13th September 2010, had noted that the prosecution heavily relied on the circumstance of the deceased last seen with the accused and seizure of blood-stained clothes, but found that the complainant did not implicate the accused in the FIR and only made allegations in a supplementary statement recorded two days later. The court held that the victim's appeal is not maintainable because the State's application for leave to appeal against the same judgment had been rejected. The doctrine of merger applies, and the earlier order rejecting leave operates as a bar. Consequently, the appeal was dismissed.
Headnote
A) Criminal Procedure - Victim's Appeal - Maintainability - Proviso to Section 372, Code of Criminal Procedure, 1973 - The victim's appeal against acquittal is not maintainable when the State's application for leave to appeal under Section 378(3) CrPC against the same judgment has been rejected by a Division Bench of the High Court. The doctrine of merger applies, and the earlier order rejecting leave operates as a bar. (Paras 1-6)
Issue of Consideration
Whether the victim's appeal under the proviso to Section 372 of the Code of Criminal Procedure, 1973 is maintainable when the State's application for leave to appeal against the same judgment of acquittal has been rejected by a Division Bench of the same High Court.
Final Decision
The appeal is dismissed as not maintainable.
Law Points
- Doctrine of merger
- maintainability of victim's appeal under proviso to Section 372 CrPC
- effect of rejection of State's leave application under Section 378(3) CrPC
Case Details
2012 LawText (BOM) (10) 102
Criminal Appeal St. No.240 of 2012
A.S. Oka, Sadhana S. Jadhav
Shri Murtuza M. Najmi for the Appellant, Shri H.J. Dedhia, APP for Respondent No.1, Shri Jayant Bardeskar for Respondent No.2
Dundawwa Shivappa Bagewadi
The State of Maharashtra & Others
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Nature of Litigation
Criminal appeal against acquittal
Remedy Sought
The appellant, being the victim (mother of deceased), sought to challenge the acquittal of the respondents under Section 302 read with Section 34 IPC.
Filing Reason
The appellant was aggrieved by the judgment and order dated 22nd April 2010 acquitting the respondents.
Previous Decisions
The Additional Sessions Judge, Gadhinglaj acquitted the respondents on 22nd April 2010. The State's application for leave to appeal under Section 378(3) CrPC was rejected by another Division Bench of the Bombay High Court on 13th September 2010.
Issues
Whether the victim's appeal under the proviso to Section 372 CrPC is maintainable when the State's application for leave to appeal against the same acquittal has been rejected.
Submissions/Arguments
The appellant argued that the doctrine of merger does not apply as what was rejected was an application for grant of leave, and the victim's appeal under Section 372 is a matter of right.
The appellant contended that the Division Bench while dismissing the leave application only considered delay in recording statements and not other incriminating evidence like recovery of weapons.
Ratio Decidendi
The victim's appeal under the proviso to Section 372 CrPC is not maintainable when the State's application for leave to appeal under Section 378(3) CrPC against the same judgment of acquittal has been rejected by a Division Bench of the High Court. The doctrine of merger applies, and the earlier order rejecting leave operates as a bar.
Judgment Excerpts
By this Appeal under the proviso to Section 372 of the Code of Criminal Procedure, 1973, the Appellant who is the victim has taken an exception to the Judgment and Order dated 22nd April, 2010 passed by Additional Sessions Judge, Gadhinglaj by which the Respondents have been acquitted of the offence under Section 302 read with Section 34 of the Indian Penal Code.
The Application for grant of leave to prefer Appeal against the same Judgment and Order has been rejected by another Division Bench by order dated 13th September, 2010.
Procedural History
The Additional Sessions Judge, Gadhinglaj acquitted the respondents on 22nd April 2010. The State filed an application for leave to appeal under Section 378(3) CrPC, which was rejected by another Division Bench of the Bombay High Court on 13th September 2010. The victim then filed the present appeal under the proviso to Section 372 CrPC, which was heard and dismissed on 8th October 2012.
Acts & Sections
- Code of Criminal Procedure, 1973: 372, 378(3)
- Indian Penal Code: 302, 34
