1apeal-568-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No. 568 of 2010. Manoj Jagan Pawar .. .. .. Appellant. Versus Gotya @ Vishal Laxman Gade & others .. .. .. Respondents. _____ Mr Jayesh Kocheta, for the Appellant. Mr Y. S. Shinde, Additional Public Prosecutor , for the State-Respondent No.5. CORAM:- D.D. SINHA AND A.R. JOSHI, JJ. DATE :- 15th September, 2010. P.C.:- 1. Heard the Counsel for the appellant and the Additional Public Prosecutor for the respondent No.5. 2. The criminal appeal is directed against the judgment and order of acquittal, dated 3.6.2010 passed by the Additional Sessions L 2apeal-568-10 Judge, Pune, in Sessions Case No. 794/2009, whereby the respondents (accused Nos.1 to 4) came to be acquitted for the offence punishable under Sections 302 and 120-B read with section 34 of the Indian Penal Code. 3. Learned Counsel for the appellant has submitted that in the instant case the prosecution has examined PW1 Manoj Pawar, PW3 Balasaheb, PW4 Smt Sarubai and PW5 Sagar in order to prove the case of the prosecution. It is contended that PW 3 Balasaheb was examined by the prosecution as an eye-witness to the incident. It was the case of the prosecution that eye-witness PW7 Gorakh informed PW1 Manoj Pawar that the accused were assaulting deceased Mangesh. PW Gorakh also supplied the information to PW1 Manoj Pawar that accused Tarachand Gade, Gotya Gade, Bhagwan and one friend were beating deceased with hockey stick and sickles. It is contended that though eye-witnesses turned hostile to the prosecution, that by itself is not enough to discard their testimonies. 4. Learned Counsel for the appellant further contended that in the instant case PW 10 Santosh supported the case of the prosecution and corroborates the evidence of Investigating Officer (PW 9) Rajendra L 3apeal-568-10 Patil. PW 10 Santosh proved the arrest panchnama as well as the seizure of clothes belonging to the accused. It is contended that the said clothes were having stains of blood. It is further submitted that the prosecution though not examined anybody to prove the memorandum statement of accused as well as discovery of weapons under Section 27 of the Indian Evidence Act, however, the Investigating Officer (PW9) has proved the discovery and, therefore, the trial Court should not have rejected the said evidence. 5. It is further submitted that all the accused, in furtherance of their common intention, conspired together and committed murder of deceased Mangesh. It is submitted that though the eye-witnesses turned hostile the other circumstantial evidence brought on record by the prosecution proves charge against the respondents (A 1 to 4) beyond all reasonable doubts. 6. Learned Counsel for the appellant further submitted that apart from the evidence which we have discussed above, the prosecution has not conducted the investigation properly and in a straightforward manner and it is contended that it was necessary for the prosecution to examine panch witnesses to the seizure panchnama and L 4apeal-568-10 the discovery panchnama. Similarly, all the reports of the Chemical Analyzer were also not placed on record by the prosecution and, therefore, suppressed the material circumstances from the Court. It is, therefore, contended that the evidence available on record proved the charge against the respondents. 7. Considered the contentions canvassed by the learned Counsel for the appellant and perused the judgment of the trial Court. In the instant case, all the eye-witnesses have turned hostile and nothing is shown to us in order to hold that in the cross-examination of these witnesses the prosecution has brought such circumstances which support the case of the complainant and, therefore, the evidence of the eye-witnesses ought not to have been discarded by the trial Court. Since nothing is shown to us in this regard, it is difficult for us to hold that the finding recorded by the trial Court that no reliance can be placed on the testimonies of the eye-witnesses those who have turned hostile, in such circumstance, in our view, cannot said to be either unsustainable or perverse. 8. In the instant case, it is also not in dispute that the panch witnesses on statement of memorandum as well as discovery L 5apeal-568-10 panchnama under Section 27 of the Indian Evidence Act has not been examined. All the Reports of Chemical Analyzer are also not obtained from the Chemical Analyzer and placed on record. 9. It is no doubt true that in a given case non-examination of panch witness by itself does not render the prosecution evidence in this regard untrustworthy, if the evidence of the Investigating Officer is cogent, reliable and trust worthy. However, in the absence of evidence of panch witness it is not always safe to base the conviction only on the basis of evidence of the Investigating Officer. We, in the present case, cannot close our eyes to the fact that there was direct evidence adduced by the prosecution of eye-witnesses, however, neither of them supported prosecution case nor anything has been brought in their cross-examination by the Public Prosecutor which supports the case of the prosecution. The other circumstances which are brought on record cannot be held to be conclusive in nature so as to prove the charge framed against the respondents (A 1 to 4) beyond all reasonable doubts. 10. The contention of the Counsel for the appellant that the prosecution has not examined the material witnesses by itself cannot be L 6apeal-568-10 the ground to show indulgence in an appeal against the acquittal. It is well settled that in an appeal against acquittal, even if the other view is possible even then the Court is not expected to show indulgence unless the finding of fact recorded by the trial Court is palpable, wrong on the face of it, unsustainable in law and resulted in miscarriage of justice. In the instant case, for the reasons given herein above no case is made out for showing indulgence. Hence, criminal appeal suffers from lack of merits. Criminal Appeal is dismissed. (D.D.SINHA,J) (A.R.JOSHI,J) L