Cri. Appeal No. 318/2010 1 IN THE HIGH COURT AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 318 OF 2010 Krishna s/o. Sarjerao Pawar, Age 33 yrs., Occu. Agriculture, R/o. Pawarwadi, Post Waghe Babhulgaon, Tq. Kaij, Dist. Beed. ....Appellant. Versus 1. The State of Maharashtra through Police Station, Kaij, Taluka Kaij, Dist. Beed. 2. Vikram s/o. Babasaheb Jadhav, Age 43 yrs., Occu. Agriculture, R/o. Kharmata, Tq. Kaij, Dist. Beed. 3. Babasaheb s/o. Saudagar Jadhav, Age 63 yrs., Occu. Agriculture, R/o. As above. 4. Prayagbai w/o. Babasaheb Jadhav, Age 58 yrs., Occu. Agriculture, R/o. As above. 5. Subhash s/o. Babasaheb Jadhav, Age 41 yrs., Occu. Agriculture, R/o. As above. ....Respondents. Mr. M.P. Kale h/f. Mr. S.K. Naikwade, Advocate for appellant. Mr. D.V. Tele, APP for respondent State. Mr. N.L. Jadhav, Advocate for respondent Nos. 3 to 5. CORAM : NARESH H. PATIL & T. V. NALAWADE, JJ. DATED : 20th April, 2011. Cri. Appeal No. 318/2010 2 PER COURT : 1. Heard learned counsel for parties. 2. The appellant Krishna is the brother of deceased Pushpa. Respondent Nos. 2 to 5 were tried for an offence punishable under sections 302, 498-A, 323, 324, 504 read with section 34 of the Indian Penal Code (IPC). By judgment and order dated 19th March 2010 delivered in Sessions Case No. 34/2007, Ad-hoc Additional Sessions Judge-1, Ambajogai convicted and sentenced respondent No. 2 Vikram Balasaheb Jadhav for life for the offence punishable under section 302 of IPC and respondent Nos. 3 to 5 were acquitted of all the charges. 3. The counsel appearing for the appellant submits that the State has not preferred any appeal against the order of acquittal recorded in respect of respondent Nos. 3 to 5. The counsel submits that the case would fall under the category of “rarest of rare case”. Respondent No. 2 Vikram Jadhav assaulted his wife deceased Pushpa mercilessly and considering the facts of the case, respondent No. 2 Vikaram Jadhav could be awarded death sentence. The counsel further submitted that there is a strong prima facie case against respondent Nos. 3 to 5 for convicting and sentencing them for offences for which they were charge. 4. The learned APP appearing for State supported the submissions Cri. Appeal No. 318/2010 3 of learned counsel appearing for appellant. 5. The learned counsel appearing for respondent Nos. 3 to 5 referred to some of the observations of the Trial Court. The counsel submits that the family of Vikram Jadhav was living separately from other accused persons. Respondent No. 5 Subash, brother of Vikaram, is in service and resides at different place at Neknur. There is no direct or circumstantial evidence against the respondent Nos. 3 to 5 for involving them in the offence. The counsel submits that this case does not fall under the category of “rarest of rare case” for convicting the respondent No. 2 Vikram Jadhav. 6. Original record and proceedings were called. We have perused the same, more precisely the depositions of children of deceased Pushpa namely son Sourabh, who was 7 years old and daughter Priyanka, who was 12 years old at the time of giving deposition. We have even perused the evidence of P.W. 16 – Dr. Wagh, who deposed that deceased suffered 8 external and internal injuries. Considering the record, judgment and submissions advanced, we are of the prima facie view that this is not a case falling under the category of “rarest of rare case”. Hence, appeal does not deserve to be admitted on the ground that case falls under the category of “rarest of rare case”. In respect of role attributed to respondent Nos. 3 to 5 we are prima facie not convinced that prosecution has led cogent and reliable evidence against them for Cri. Appeal No. 318/2010 4 admitting appeal. The Trial Court has recorded the order of acquittal against respondent Nos. 3 to 5, which in our prima facie consideration, is a possible view of the matter. 7. The appeal stands dismissed. However, the appellant is entitled to file appropriate application for assisting the APP at the time of final hearing of the appeal. Record and proceedings be sent back. [ T. V. NALAWADE, J.] [ NARESH H. PATIL, J.] ssc/cria318.10