7. cr appln 2528­10.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 2528 OF 2010 The State of Maharashtra .. Applicant Vs Dhanaji Gabaru Khilare & Ors .. Respondents Ms. U.V. Kejariwal, APP for the State CORAM : SMT. V.K. TAHILRAMANI, J DATE : 18th OCTOBER, 2010. P.C.: 1. The applicant - State of Maharashtra has preferred this application for leave to file appeal against the judgment and order dated 22.01.2010 passed by the learned Judicial Magistrate F.C., Jaysingpur, Dist. Kolhapur in R.C.C. No. 34 of 2008. By the said judgment and order, the respondents i.e original accused came to be acquitted of the offences under Section 435 read with 34 of IPC. 2. The prosecution case briefly stated is that on 11th April 2008 at about 2.00 am, at Village Danoli, all the accused in furtherance of their common intention set fire to the fodder of the complainant PW 2 Kavita. The informant is not an eye witness to the incident. She has lodged FIR on 1 7. cr appln 2528­10.doc the basis of information given by her daughter PW 5 Jyoti. 3. Charge under Section 435 read with 34 of the IPC came to be framed against the accused to which they pleaded not guilty and claimed to be tried. Their defence is that of total denial and false implication. 4. I have heard the learned APP for the applicant-State of Maharashtra. I have perused the judgment and order passed by the learned Sessions Judge. I have also perused the evidence produced by learned APP. After carefully considering the matter, for the reasons stated herein below, I am of the opinion that the judgment and order passed by the learned Sessions Judge does not call for any interference. 5. It is pertinent to note that [PW 1 ] Laxman Khilare who is an panch witness has not supported the prosecution. The first informant PW 2 Kavita is not an eye witness. She has lodged the FIR on the basis of the information given to her by PW 5 Jyoti. Kavita has stated that her children told her that, accused said that, "Subhya, Amhi Tuzi Ganji Petawanar Ahot" but during the cross-examination of PW 5 Jyoti, it appears that no such thing was informed by her to her mother. In fact, she has specifically stated that at the relevant time, no threat was given by any of the accused as 2 7. cr appln 2528­10.doc regards setting the fodder on fire. 6. PW 5 Jyoti is the only eye witness examined by the prosecution, who has supported the prosecution case. She has stated that at about 2.30 am, somebody knocked on the door and said, 'Subhya Baher Ye'. She opened the door of the house and saw that the accused were proceeding towards the fodder. She has stated that accused Dhanaji and Praphul caught the fodder in their hands while accused Khandu set it on fire. She has stated that she saw this incident from the courtyard of her house and after departure of the accused from the spot, she raised hue and cry in response, Shri. Dhondiba and Shri. Ashok came on the spot and extinguished the fire. It is pertinent to note that Shri. Dhondiba has not been examined by the prosecution and Shri. Ashok who has been examined has not supported the case of the prosecution. At the time of the incident, Jyoti was about 17-18 years of age. It has come in her evidence that her grandfather was present in the house, however, despite the said incident taking place, Jyoti has not tried to wake up her grandfather or other persons in the house. This conduct on her part appears to be unnatural. Moreover, the evidence of PW 5 Jyoti shows that after the accused went away, she started raising hue and cry. The normal conduct would be that Jyoti would have raised hue and 3 7. cr appln 2528­10.doc cry when she saw the accused proceeding towards the fodder or they were setting the fodder on fire. A person would shout for help before the incident occurred or at the time when the incident occurs and not after the incident has taken place and the accused had gone away. Thus, this conduct on the part of Jyoti also appears unnatural. 7. Another act of unnatural conduct on the part of Jyoti is that immediately after witnessing the incident of fire, she went to sleep. According to her, this incident occurred at about 2.30 a.m. whereas according to her mother PW 1 Kavita, she reached home at about 3.00 a.m and woke up the children. This means that immediately after the incident occurred, within half an hour, Jyoti was fast asleep. This does not at all seem possible. If really the incident of setting the fodder on fire was witnessed by Jyoti at about 2.30 a.m., then it is not possible that at 3.00 am, she would be fast asleep because if the fodder was set on fire at 2.30 a.m, she would be in a state of panic, she would wake up the persons in her house, she would run helter- skelter for help. It does not appear at all natural that she went to sleep immediately after the incident took place. 8. PW 5 Jyoti is only the eye witness to the incident. Her conduct does not at all seem natural. The learned 4 7. cr appln 2528­10.doc Magistrate has taken into consideration all the above facts and thereafter, acquitted the respondents-original accused. Looking to the evidence on record, I find that conclusion arrived at by the learned JMFC is a reasonable and possible view. 9. The plenitude of power available to the Court hearing an appeal against acquittal is the same as that available to a court hearing an appeal against an order of conviction, but, however, the court hearing an appeal against acquittal, will not interfere solely because a different possible view may arise on the evidence. 10. The Supreme Court in the case of C. Anthony Vs. K.G. Raghavan Nair reported in (2003) 1 SCC 1 has observed that while hearing an appeal against an order of acquittal, if two reasonable conclusions can be reached on the basis of evidence on record, the appellate court should not disturb the finding of the trial court. I have already observed that the view taken by the learned JMFC is a reasonable and possible view. Hence, I am not inclined to interfere in the judgment and order of acquittal. In view of the above, leave to file appeal, is refused. 11. Application is rejected. [SMT. V.K. TAHILRAMANI, J.] 5 7. cr appln 2528­10.doc 6