- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.326/2010 Ramesh Mansaram Patil & another. ...Appellants.. Versus The State of Maharashtra, through P.S.O., Amalner Police Station, Amalner Tq. & Dist.Jalgaon and another ...Respondents... ..... Shri S.P. Tiwari, Advocate h//f Shri Amol S. Sawant, Advocate for appellants. Shri B.V. Wagh, APP for respondent no.1. Shri Joydeep Chatterji, Advocate for respondent no.2. ..... CORAM: P.V. HARDAS & A.V. POTDAR, JJ. DATE: 25.10.2010 PER COURT : 1] This is an appeal filed by the appellants challenging the judgment of the Additional Sessions Judge, Amalner, in Sessions Case No.30/2009, acquitting the respondent no.2 for offence punishable u/s 302 of the Indian Penal Code. - 2 - 2] The prosecution relied upon the circumstance that the deceased was last seen in the company of the accused and for the said purpose, the prosecution had examined PW 5 Rambhau Pawar and PW 6 Shaligram Patil and PW 12 Ramesh Shenfadu Patil. The prosecution further alleged that the accused, when confronted with the finding of blood on his motorcycle, had given evasive answers and had absconded from the scene of the offence. The third circumstance relied upon by the prosecution was finding of foot-rest at the scene of the offence and finding of blood stains on the motorcycle i.e. seat cover and the silencer of the motorcycle. 3] In respect of the first conduct that the deceased was last seen in the company of the accused, the trial Court examined the evidence of the three witnesses, adverted to above, and came to the conclusion that the evidence does not establish that the deceased was exclusively in the company of the accused. The deceased was in the company of others namely one Daga Aadhar Patil and Bajirao Hiraman Patil. In these circumstances, therefore, the trial Court came to the conclusion that the circumstance of last seen was not established and in any event would not lead to the irresistible inference that the deceased was in exclusive company of the accused. In respect of the second conduct, the trial Court came to the conclusion that even an innocent person, when confronted with serious accusations, was likely to be afraid and give evasive answers and it would not necessarily mean that the accused was the perpetrator. In respect of the - 3 - finding of blood stains on the motorcycle, the trial Court came to the conclusion that since the blood grouping was not done, mere finding of human blood on the motorcycle would not establish the culpability of the accused. The trial Court also came to the conclusion that finding of the foot-rest on the scene of the offence and the fact that the motorcycle of the accused did not have a foot-rest also would not indicate the presence of the accused and the motorcycle at the scene of the offence. A foot-rest obviously would fit the motorcycle of the make of the accused. This would not be special only in respect of the motorcycle of the accused and the aforesaid foot-rest would fit in all other motorcycles of the same make. In such circumstances, therefore, the trial Court came to the conclusion that the finding of foot-rest at the scene of the offence would not lead to the irresistible conclusion that the accused along with his motorcycle was present at the scene of the offence. 4] The learned counsel for the appellants has urged before us that the trial Court has erroneously rejected an application submitted by the prosecution for sending the seized property for DNA and RNA profiling and identification to the Forensic Laboratory, Kalina, Santacruz East, Mumbai. The trial Court, by order dated 23.3.2010, rejected the same. The trial Court came to the conclusion that there was no provision in the Code of Criminal Procedure by which the Court could send the aforesaid articles to the laboratory for DNA finger printing. The prosecution did not avail of the provisions available in the Code of Criminal Procedure in respect of further investigation and submission of additional charge- - 4 - sheet. 5] After hearing the learned counsel for the parties and perusing the findings recorded by the trial Court, according to us, there is no perversity in the reasoning of the trial Court to warrant any interference in this appeal against acquittal. The view taken by the trial Court is a possible view to be taken on the basis of evidence on record. In that light o the matter, there being no merit in the appeal, the appeal is summarily dismissed. (A.V. Potdar, J.) (P.V. Hardas, J.) ndk/cr2510102