1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL MISC. APPLICATION NO.154/2010 AND STAMP NUMBER MAIN NO.1534 OF 2010 STATE (through Police Inspector, Margao Police Station, Margao, Goa.) ...... Appellant. V/s. 1. Sunny Singh Khanuja, s/o. Ranjeet Sing Khanuja, r/o. Vijay Nagar, IDA Building, Indore, Madhya Pradesh. 2. Abhay Verma @ Batham, s/o. Radhyesham Verma, r/o. 107, Jagjeevanram Nagar, Patnipura, Indore, Madhya Pradesh. ....... Respondents. Mr. C. A. Ferreira, Public Prosecutor for the Appellant/State. CORAM :- A.S. OKA & F.M. REIS, JJ. DATE :- 29th June, 2010. 2 P.C. :- We have heard the learned Public Prosecutor in support of this application under Section 378(3) of the Code of Criminal Procedure, 1973. The challenge is to the order of acquittal dated 18th March, 2010 passed by the Addl. Sessions Judge-1, South Goa, Margao. The respondents-accused were prosecuted for an offence punishable under Section 302, read with 34 of the Indian Penal Code. 2. With a view to appreciate the submissions made by the learned Public Prosecutor, a brief reference to the facts of the case will be necessary. The allegation against the first and second respondents is of murdering one Rajendra Jamne and one Monu Pathak. The prosecution case seems to be that the first respondent-first accused had love affair with the said Monu. When it was found that said Monu was residing with Rajendra, the first respondent had threatened to take action against the said Rajendra. The prosecution examined 18 witnesses. The learned Addl. Sessions Judge came to the conclusion that there was no evidence of involvement of the respondents in the offence. 3 3. With the assistance of the learned Public Prosecutor, we have perused the impugned judgment. We have also perused the notes of evidence. The entire case of the prosecution is based on circumstantial evidence as there are no eye witnesses. PW.1 (PSI Roopa Kharde) was examined to prove that partly decomposed dead bodies of Rajendra and Monu were found on 12th August, 2008. The notes of post-mortem and the cause of death recorded therein show that the deaths were homicidal deaths. The postmortem notes show that the cause of death of Rajendra was due to the incised stab wounds and incised wounds on the neck caused by sharp edged weapon. As far as the death of Monu is concerned, the cause of the death is due to three injuries found on the person of the said Monu. As far as motive and involvement of the first respondent is concerned, there are two witnesses examined by the prosecution. The first is PW.10 Laxminarayan Pathak and the second is PW.11 Pinky Jamne. PW.10 is the uncle of the deceased Monu and PW.11 is the real sister of said Monu. The said Laxminarayan (PW.10) deposed that the said Monu was having a love affair with the first respondent who is a resident of Indore. He stated that in 2006, when he questioned Monu on her love with the first respondent, the said Monu denied that she was in love 4 with the first respondent. PW.10 stated that he had learnt from the mother of Monu that she was in love with the first respondent. The prosecution has not examined the mother of the deceased Monu. However, the prosecution examined her sister Pinky. She stated that her younger sister Monu was friendly with the first respondent since the year 2000 and they were contemplating to marry each other. She stated that from January, 2008 she suspected that her younger sister Monu had become friendly with the said Rajendra and they were seen moving together. Incidentally, PW.11 Pinky is the wife of the said Rajendra. Her evidence brings on record that Monu was residing with Rajendra in his flat at Margao since February, 2008. On the aspect of motive, the learned Addl. Sessions Judge has also considered the evidence of PW.10 Laxminarayan. He stated that sometime in the year 2008, he had come to Goa and visited the flat of Rajendra at Margao and met both, Rajendra and Monu. He stated that he tried to persuade Monu to come back to Indore with him, but Monu declined to do so. PW.10 admitted that he had not stated before the police about his visit in the year 2008. PW.10 admitted in the cross examination that he does not remember the month and the date when he had come to Goa for the first time. PW.10 deposed that he returned to Goa on a second 5 visit along with the first respondent. He stated that the first respondent was in a very angry mood and he was saying that he would take action against the said Rajendra. However there is an omission on this aspect and PW.10 admitted that he had not stated to the police that the first respondent was saying that he would take action against Rajendra. PW.10 came out with a case that he had not disclosed to anyone in Indore that he was proceeding to Goa along with the first respondent. PW.11 Pinky stated that after 10 to 12 days from the first visit of PW.10 to Goa, he came back to Goa along with the first respondent and that the first respondent and PW.10 informed her that they could not meet Rajendra and Monu in Goa. PW.11 admitted that she had not disclosed before the police that PW.10 had visited Goa 10 to 12 days after his first visit. In the cross examination of PW.10 it is brought on record that he was not aware as regards exact location of flat of Rajendra. 4. The learned Addl. Sessions Judge observed that if the case of PW.10 about his second visit to Goa was really true, after return to Indore he would have disclosed to the members of the family of Monu of his second visit to Goa along with the first respondent. 6 5. The prosecution examined PW.16 Pratik Mandrekar who was working in cloakroom of the Konkan Railway Station at Margao. He was examined to prove the prosecution case that the first and second respondents had visited the cloakroom on 8th August, 2008 and had kept their bags therein. An attempt of the prosecution was to show the presence of the accused in Goa at the time of the murder. The said witness admitted that prior to August, 2008 he was not knowing both the accused. He deposed that about 50 persons visit the cloakroom every day for depositing their luggage. He admitted that on 12th September, 2008 when the police inquired with him he could not recollect their faces and who they were and when the had come. PW.16 stated in the cross examination that due to passage of time he was not sure that the two accused were the same boys who had kept the luggage in the cloakroom under the names of Sunny and Abhay. Another important aspect noted by the learned Addl. Sessions Judge is that there was no test identification parade held for identification of the accused by PW.16. 6. Apart from the failure of the prosecution to examine the 7 mother of the deceased Monu, the evidence of PW.10 and PW.11 as regards motive and as regards the threat given by the first respondent to take action against Rajendra is not found to be trustworthy. The evidence of PW.16 adduced by the prosecution to prove the presence of the accused at the time of murder in Goa has been disbelieved by the trial Court on the ground that there was no test identification parade held and moreover, the witness stated that he was not sure that the two accused were the same persons who had come to keep the luggage in the cloakroom in August, 2008. 7. After having perused the notes of evidence and the impugned Judgment, we find that the view taken by the learned Sessions Judge is a possible view. Even if we accept the submissions made by the learned Public Prosecutor, all that can be said is that another view is possible to be taken on the basis of the said evidence. The view taken by the learned Sessions Judge is certainly a possible view which could have been taken on the basis of the evidence on record. We, therefore, find that no case is made out for grant of leave under sub-section (3) of Section 378 of the said Code. 8 8. Before we part with this application, we find that apart from filing a separate application under Section 378(3) of the said Code for grant of leave which contains grounds of challenge, there is a separate memorandum of appeal filed along with the application. Rule 19, Chapter XXVI of the Bombay High Court Appellate Side Rules, 1960, reads thus : “ 19. Procedure re-appeals against acquittals by Private parties. - (i) Every application for leave under section 378(3) should be a composite application giving necessary facts and circumstances of the case along with the grounds which may be urged in the appeal with a prayer to entertain the appeal. The appellant shall file along with application two typed copies of the composite application and the Judgment or Judgments of the Court concerned. (ii) If the leave to appeal is granted, the composite application presented shall be entered in the register of appeals and numbered accordingly. The appellant shall forthwith supply the requisite Court-fee stamps prescribed for the appeal. The Sessions Court shall be required to prepare five paper books.” 9 Though the title of the rule indicates that it applies to appeals against acquittals by private parties, on a plain reading of the rule it is apparent that it applies to all applications filed under sub-section (3) of Section 378 of the said Code where the prayer is for grant of leave. In view of Rule 19, there is no requirement of filing a separate memorandum of appeal. However, the application under sub-section (3) of Section 378 of the said Code should be a composite application giving necessary facts and circumstances of the case along with the grounds which may be urged in the appeal. If the leave to appeal is granted by the Court, the composite application is required to be entered in the register of appeals and the said application is required to be numbered as an appeal. Therefore, the registry should accept a composite application under Section 378(3) as contemplated by Rule 19, without insisting on the appellant filing a separate memorandum of appeal. Hence, we pass the following order : (A) The application is rejected. (B) The Registrar will take note of Rule 19 of Chapter XXVI of the Bombay High Court Appellate Side Rules, 1960. The Registrar to issue necessary directions that the registry to accept composite 10 application contemplated by Rule 19 and the Registry shall not insist on filing a separate memorandum of appeal. In view of this order, Stamp Number Main No.1534 of 2010 does not survive and the same is disposed of as such. A.S. OKA, J. F.M. REIS, J. ssm.