-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPLICATION NO.3914 OF 2007 The State of Maharashtra : Applicant/Appellant (Orig.Complainant) V/s. Sunil Arjun Chawale & Ors. : Respondents (Orig.Accused Nos.1 to 3) ... Mr.D.S.Mhaispurkar, Addl. Public Prosecutor for the State. Mr.P.R.Arjunwadkar with Ms K.H.Arsankar for respondent nos.1 to 3. ... CORAM : BILAL NAZKI & S.A.BOBDE,JJ. DATE : MARCH 10, 2008. P.C. 1. This is an appeal against acquittal of the accused persons in Sessions Case no.200 of 2005 by the Court of Sessions at Kalyan, Dist. Thane. 2. The prosecution case was that the deceased and his family were residents of Mulgaon village. His brother Bhima Rane was also residing in the same village near the house of the deceased. The accused no.1 also was a resident of the same area and there were disputes between -: 2 :- the accused no.1 and the deceased in respect of an open land between their houses. The deceased was working in M.I.D.C., Badlapur, and he used to go for his duty at 7.00 a.m. and would come back by 9.00 p.m. On 9.6.2005, as usual, the deceased had gone to attend to his duty and he did not return. His family members thought that he might have been engaged for night duty, but on the morning of 10.6.2005 the dead body of the deceased was found lying by the side of Badlapur-Murbad Road. The deceased had received injuries on the head and other parts of his body with stone. After report was filed, investigation started and the prosecution arraigned the respondents as the accused persons. The prosecution tried to establish its case by direct evidence of one of the witnesses Kashinath Mhaskar (P.W.8) and also through circumstantial evidence. The circumstances which were pressed into service by the prosecution were: (i) the identify card of the accused no.1 was found near the dead body; (ii) the accused no.1 had gone to demand a torch from Pandurang Shinde (P.W.7) at about 11 p.m. on 9.6.2005; and (iii) the accused no.1 was also found to have received injuries on his person when he was arrested and his pant was stained with blood. These circumstances were not believed to have been proved by the learned Sessions Judge. The first circumstance that the identity card was found lying near the dead body of the deceased, the learned Sessions Judge was of the -: 3 :- view that the genuineness of this card was not at all established and if this card was to be taken as proof, the finding of this card at the place of occurrence was taken to be proof for a murder having been committed by the accused no.1, then similarly one Umesh Rane, who was not an accused, could be convicted as his driving licence was also found near the dead body. How Umesh Rane’s licence reached the spot where the deceased was murdered was not at all explained by the prosecution. In view of the absence of an explanation by the prosecution as to the finding of licence of Umesh Rane at the place of occurrence, the learned Sessions Judge, in our view, was correct in not relying on this circumstance for convicting the accused for murder. Besides, according to the learned Sessions Judge, it was not found proved that the identity card was a genuine identity card. The other circumstance that the accused no.1 had gone to demand a torch at about 11 p.m. from Pandurang Shinde on 9.6.2005 itself would not be a circumstance which cannot be taken into consideration for conviction because the prosecution wanted to believe that the torch was obtained to go to the scene of occurrence where the identify card of the accused no.1 was found. But to come to this conclusion and to agree with this conclusion, the Court has presumed that the identify card was genuine and had been lost by the accused no.1 while committing the offence. As such, the -: 4 :- conclusion arrived at by the learned Sessions Judge cannot be faulted. The accused having received injuries on his person would itself not be sufficient to conclude that he had received injuries while committing the murder. It is not believable that he would have worn the pant which was stained with blood even after 24 hours of the incident because the incident occurred on 9.6.2005 and the accused was arrested on 10.6.2005. The eye-witness Kashinath Mhaskar (P.W.8) on his own stated that he saw the incident on 9.6.2005 but he did not tell anybody till 21.7.2005 and on 21.7.2005 he on his own voluntarily went to the police station and informed the police that he was an eye-witness. Obviously, this witness appears to be a planted witness and, as such, his evidence could not be relied upon against the accused. No interference is called for. 3. Accordingly, this Application for leave to file an appeal is dismissed. (BILAL NAZKI, J.) (S.A. BOBDE, J.)