1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR CRIMINAL APPLICATION (APPA) NO. 181 OF 2011 IN CRIMINAL APPEAL NO. 2011 (State of Maharashtra vs. Prakash Bhimrao Khandare & Anr.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Mrs. Ketki Joshi, APP for the applicant – State. ….. CORAM : MRS. V.K. TAHILRAMANI & M.L. TAHALIYANI, JJ. APRIL 20, 2011. This application for leave to file appeal against acquittal is directed by the applicant/appellant – State against the judgment and order dated 28.09.2010 passed by the learned Additional Sessions Judge, Pusad, in Sessions Trial No. 607 of 2008. By the said judgment and order, the learned Sessions Judge acquitted both the respondents – original accused Nos. 1 & 2 under Sections 302, 201 read with 34 of Indian Penal Code. 2. The prosecution case briefly stated is as under : Accused No. 2 – Asha was the daughter of Janabai (deceased). Accused No. 1 – Prakash was paramour of Accused No. 2. There were illicit relations between accused No. 1 and accused No. 2 which was not liked by Janabai. Hence, on 16.09.2008 there was quarrel between the deceased and accused on account 2 of said illicit relations. In the intervening night of 16.09.2008 and 17.09.2008, both the accused committed murder of Janabai. Thereafter they took the dead body of the deceased and hung it from a tree in the village. 3. We have heard learned APP for the State. We have perused the judgment and order of learned Sessions Judge and the evidence produced by learned APP. After carefully considering the matter, we are of the opinion that there is no merit in this application. 4. There is no eye witness to the incident and the case is based only on circumstantial evidence. The circumstances relied upon by the prosecution is that P.W. 4 – Changonabai had heard the quarrel going on between both the accused and the deceased on 16.09.2008 in the evening and that night at about 1.00 A.M., she had seen accused No. 1 carrying the dead body of Janabai on his shoulder and accused No. 2 – Asha was carrying string and slipper in her hand. It is noticed that this averment of Changonabai that at about 1.00 A.M., she had seen accused No. 1 carrying the dead body of Janabai on his shoulder and accused No. 2 – Asha was carrying the string and chappal in her hand, is an omission. Hence, there is no reliable material to show that at about 1.00 A.M. accused No. 1 was seen carrying body of Janabai and accused No. 2 was carrying chappal and string in her hand. 5. The prosecution has relied upon the extra- 3 judicial confession made by accused No. 2 to P.W. 2 – Ambadas and P.W. 12 - Dr. Borkar. P.W. 2 – Ambadas had lodged First Information Report. It is pertinent to note that it is the prosecution case that extra judicial confession is made by Asha to him. However, in the FIR lodged by Ambadas, there is no reference to any such extra judicial confession. It is further the prosecution case that when this confession was made by Accused No. 2 - Asha to Ambadas, P.W. 12 – Borkar was present. If such extra judicial confession was made by accused No. 2 to P.W. 2 in the presence of P.W. 12 - Borkar, it would have been mentioned by P.W. 2 - Ambadas in his FIR. However, there is no mention in the FIR about extra judicial confession made by accused No. 2 either to P.W. 2 – Ambadas or to P.W. 12 – Dr. Borkar. 6. Thereafter, it was submitted by the learned APP that there is motive for the accused persons to commit the murder of Janabai. It is the prosecution case that there were illicit relations between accused No. 1 and accused No. 2 which was not liked by Janabai. On 16.09.2008 quarrel took place on this count between deceased and accused, therefore, these accused persons murdered Janabai. Ambadas, in his evidence, has not stated anything about the motive. His FIR is totally silent on this aspect. P.W. 4 – Changonabai and P.W. 8, who have been examined on the aspect of motive have not stated the reason for the quarrel. The testimony of these witnesses shows that the quarrel was on some 4 trivial issue. Thus, we find that there is no reliable material on record to show the motive for the offence. 7. Thereafter the learned APP has submitted that there is recovery of string at the instance of the accused. However, we find that there is no material to connect the said string with the crime. The learned Sessions Judge has considered all the above aspects along with other aspects and has thereafter acquitted the respondent. We may make useful reference to the decision of the Supreme Court in the case of State of Uttar Pradesh vs. Dinesh, reported in (2009) 3 Scale 345, wherein in a case of appeal against acquittal it was held that if two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court. The Supreme Court in C. Anthony vs. K.G. Raghavan Nair, reported in (2003) 1 SCC 1, has observed that when two views are possible and when the view taken by the trial Court is a reasonable and possible view, the High Court cannot in an appeal substitute its findings merely because another contrary opinion was possible on the basis of material on record. It is further observed that if two reasonable conclusions can be reached on the basis of the evidence on record, appellate Court should not disturb the findings of the trial Court. Looking to the evidence on record, we find that the view taken by the trial Court is a reasonable and possible view, therefore, no case is made out for 5 interference. 8. Hence, application for leave to file appeal is rejected. Consequently, appeal is also dismissed. JUDGE JUDGE *GS.