Krishna Vithu Suroshe v. State of Maharashtra

Judgment

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 96 of 1973. Appeal by special leave from the judgment and ordea' dated 4th December, 1972 of the Bombay High Courf at Bombay in Qiminal•Appeal No. 14~9 of 1972. Y. S. Chille, V. N. Ganpule and P. C. Kapur, for the ~ppellant, H. R. Khanna and M. N. S/lt'ofl, for the respondent 1 he. Judgment of the Court was deUvered by KHANNA, I. J anardhan Narayan Suroshe and Krishna Vithu Suroshe were convicte,1' by the Additional Sessiona J ~ Thana under section 302 Indian· Pena1 ·Gide on the alleghtion that they had came.I the deiith of Bhaskar Narayan Suroshe. Each of them was sentenced to: undergo impri$0lllllent for life. Krishna Vithu Suroshe filed an appeal against the judgment of the trial court but the same. was diSllliss!id summarily by the. Bombay High Court. Krishna Vrtbu SurO!!he thereafter filed the present appeal ro this Court by special leave.

At tlie time the leave was granted it Wll$ directed that the appeal wonk! be" limited qnly to the ground wherein .it had been stated that the High Court should not bave dismissed the· appeal in /imine. [19741 1 s.c.ll. Bhaskar Narayan Suroshe was the brother of Janardhan Narayan Suroshe accused. The housCf! of Bhaskar Narayan Suroshe and Janardhan Narayan Suroshe are situated in village Raite and there intervenes a small lane between the two houses. On March 24, 1972 at about 9 p.m., it is stated, the two accused started abusing Bhaskar deceased. Bhaskar then came to the. kitchen of his house and standing in the door of the kitchen he also abused the accused. The exchange of abuses went on for about 10-15 minutes. J anardhan accused, according to the prosecution, than came forward and gave a b'.ow with· a long knife in the abdomen of Bhaskar: J anardhan also tried to pull Bhaskar. Krishna Vithu Suroshe appellant then gave a blow with a Jong knife in the back'of Bhaskar.

The occurrence, it is stated, was witnessed by Parvatibai and J anabai, the two wives of Bhaskar deceased as well as by his daughter Lata. Pandurang, servant of Bhaskar, was also attracted to the place of occurrence. Bhaskar was thereafter taken in a cart to Govili dispensary. The doctor incharge of the dispensary advised that Bhaskar should be removed to the hospital. Bhaskar was thereafter taken in a taxi to Kalyan but by the time they arrived in the hospital at Kalyan, Bhaskar was declared to be dead. Report about the occurrence was lodged by Parvatibai at Kalyan police station at 11.45 p.m. At the trial Parvtibai, Janabai and Lata gave oCular evidence regarding the. occurrence. The appellant in his statement under section 342 Code of Criminal Procedure denied his presence at the sceoc ·of oocurrence !llld his participation in the assault on Bhaskar deceased.

According 1o the appellant, he was falsely involved in this case at the instance of Haribabu with whom the appellant had business rivalry. Haribabu is another brother of Bhaskar deceased. The tr_ial court accepted the prosecution allegations and convicted and senteuced the accused as mentioned earlier: Mr. Chitale on behalf of the appellant has urged before . us .tltat th\l appeal _filed by the appellant before the High Court raised arguable and substantial points and the High Court was not justified in dismissing the appeal in limine. The learned counsel in this connection has invited our attention to that part of the judgment of the trial court which deals with the evidence of Janabai and Lala PWs.

It would appear from the judgment of the trial court that Janabai and· Lata only' :saw the infliction of the blow on the deceased ·.by Janardhan · .accused. · JanaOai and Lata did not see Krishna Vithu Suroshe appellant at the time of the occurrence much less did they see the appellant infiicting knife blow on the back of Bhaskar· deceased~ The evi- _clence of Janabai and Lata, it is urged, create5 considerable· doubt regarding ·the correctness of the ·statement of Parvatibai in so far as she has stated that the appellant too was present at ·the timtl of the occurrence an:d he gave a knife· blow in the back of Bhaskar deceased, It is also pointed out that the injury on the back ·of the deceased could a1sO 'be· caused ·with the ·same weapon· with· which Janardhan gave· the blow in the abdomen of the deceased: t K. v. SUROSHE v. MAHARASHTRA (Khanna, J.)

In our opinion the appellant had an arguable case and the High Court was not justified in dismissing·sunimaril:f the· appeal of the appel· Ian!. It is true that under section 421 Code of Criminal Procedure the High Court can diS.niiss an appeal in /imine if on a perusal of the petition of appeal and the judgment· appealed from it were to form the view that there was no sufficient reason for its interference. At the same time, it is now settled law, repeatedly laid dowp by this Court in a series of decisions, that the High Court would not be justified iJ\ dismissing summarily and without a speaking order an appeal which raises arguable questions either on points of law or on points of fact (see in this context two of our recent decisioDcS: Shaikh Mohd. Ali v. State of Mahararhtra( 1) and Kapurchand Kesrimal Jain v. State of Maharashtra (2) . Mr. Khanna on behalf of the State has invited our attention to the decision of this Court in Chi11aranjan Das v. State of West Bengal(').

There is nothing in this judgment which runs oounter to the view ex· pre6sed· by this Court _in the two cases mentioned earlier by us. What was laid .down in Chittaranjan Das's case was that the High Court is not justified in granting a certificate of fitness for appeal on the gwund that the criminal appeal had been dismissed summarily. We, therefore, accept the appeal, set aside the order of the High Court dismissing the appeal in limine and direct that the appeal be disposed of in due course according to law. G.C. (!) A. I. R. 1973 S. C. 43. (2) A. I. R. 1973 S. C. 243, Appeal alloll'ed . (3) [1964]'3 S.C.R. 237.