The High Court must assess prima facie cases for granting leave to appeal against acquittals, ensuring adequate reasoning is provided for any refusal.

ORDER :

1. This appeal is at the instance of the original first informant brother of the deceased, seeking to challenge the order passed by the High Court of Judicature at Bombay in Criminal Application No.207 of 2013, dated 22nd of August 2013, by which the High Court in an appeal filed by the State against the judgment and order of acquittal, declined to grant leave under sub-section (3) of Section 378 of the Criminal Procedure Code (hereinafter referred to as, “Cr.P.C.”).

2. We are conscious of the fact that the acquittal appeal was at the instance of the State. As leave came to be declined, the State could have come before us by way of an appeal. However, the State has though fit not to question the order passed by the High Court, declining to grant leave and in such circumstances, it is the brother of the deceased (original first informant) who has thought fit to question the order passed by the High Court.

3. It appears from the materials on record that the respondent no.1 herein, was put to trial in the Court of the Additional Sessions Judge, Kalyan in Sessions Case No.132 of 2011 on the charge of having committed murder of his wife i.e. the deceased. It is the case of the prosecution that on the date of the incident i.e., 02.04.2011 India was playing World Cup final against Sri Lanka in Mumbai. After India won the match and the World Cup, the respondent accused started celebrating by firing shots in the air from his licensed pistol. Later, he is alleged to have fired a shot at his wife. The wife succumbed to the firearm injuries. Their fifteen years old son was an eyewitness to the incident.

4. The Trial Court acquitted the respondent no.1 of the charge of murder. The State preferred acquittal appeal before the High Court. The High Court thought fit, not to grant leave to appeal. The High Court has observed thus:-

“6. PW.3 - Umesh (son of the deceased), the sole witness with regard to the last seen, was declared hostile as he did not support the prosecution case. PW.3 - Umesh has in his evidence stated, that he was informed by his mother and sister, that the Respondent/accused had gone out of station for show room work, since the morning of 2nd April, 2011. The said witness has denied the portions marked “A to C” i.e. portion ‘A’ “after India winning the Cricket match, my father took out pistol from the cupboard, put bullets in it, fired in air by going down stairs”; portion ‘B’ i.e. “my father accused Mahesh again came to house and started watching Awards Programme on T.V.; portion ‘C’, i.e. ”that there was quarrel between my mother and father in the bed room, after some time heard noise of firing bullet and my father came from the bedroom in frightened condition. At that time his shirt was soaked with blood and there was blood on his hand”. It has come in the evidence of PW.3-Umesh, that he had seen one person passing near the staircase when he was going towards the lift and when he went to his house he saw that his mother was bleeding. He has further stated, that when police came home, they had taken with them a jean pant and a shirt from the balcony which was exclusively attached to the bedroom where the incident took place. In his cross-examination, he has stated, that Gladish Anthony was his teacher who use to come to their house for teaching him and that she was about 55 years of age. It is pertinent to note that PW.3 – Umesh’s statement came to be recorded on 8th April, 2011 where as the incident had occurred on the intervening night of 2nd and 3rd April, 2011. In fact PW.9 PSI – Ghuge has admitted in his evidence that when he went to the spot immediately after the incident PW.3 – Umesh was present and that he had not recorded the statement of any person in the ADR enquiry.

7. In the light of the evidence, that had come on record, the Trial Court rightly discarded his evidence and put his evidence in the category of neither fully reliable nor wholly unreliable. Although the prosecution examined PW.1- Manoj i.e. broth