DUNDAWWA SHIVAPPA BAGEWADI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) 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 22 nd 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.

(2.) When the Appeal was called out, we pointed out to the learned counsel for the Appellant that for challenging the same Judgment and Order, the State had filed an Application under Section 378(3) of the Code of Criminal Procedure, 1973 ( hereinafter referred to as "CRPC") and by Judgment and Order dated 13 th September, 2010 passed by another Division Bench of this Court, the said Application was rejected. The learned counsel appearing for the Appellant submitted that the doctrine of merger will not apply as what is rejected is an application for grant of leave to prefer an Appeal. He urged that the Division Bench while dismissing Application for leave, was impressed with delay in recording statements of the material witnesses and no other incriminating evidence has been taken into consideration. He pointed out the other evidence on record and especially the evidence of recovery of weapons which is not considered by the Division Bench while rejecting the application for leave filed by the State. He urged that under the proviso to Section 372 of CRPC, an Appeal against acquittal is available as a matter of right. Hence, he urged that this Appeal deserves to be heard independently of the findings recorded by the Division Bench while rejecting an Application for grant of leave to prefer an Appeal.

(3.) We have carefully considered the submissions. 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 13 th September, 2010. Paragraphs 4 to 6 of the said Judgment and Order read thus: