(-1-) MGN IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, CRIMINAL JURISDICTION CRIMINAL APPLICATION NO.2886 OF 2006 The State of Maharashtra...Applicant Vs. Benni @ Siddhu Klament & 5 Ors..Respondents Mr. P.S. Hingorani, APP for the Applicant. Mr. K. Kocharekar, for the Respondent Nos. 5 and 6. CORAM: F.I. CORAM: F.I. CORAM: F.I. REBELLO REBELLO REBELLO & K.U.CHANDIWAL, JJ. K.U.CHANDIWAL, JJ. K.U.CHANDIWAL, JJ. DATED: 23rd April,2008 DATED: 23rd April,2008 DATED: 23rd April,2008 P.C.: P.C.: P.C.: . The State has come in Appeal against the order of the learned Additional Sessions Judge in Sessions Case No.767 of 2004 decided on 4th January,2006 and 12th January, 2006. There were altogether six accused who were charged for offence under Section 395, 397, 414 read with Section 34 of I.P.C. . In so far as Accused No.4-Suresh Shetty, as can be seen from the discussion in para.20 of the judgment, the prosecution itself had stated before the learned Judge that there is no evidence and accordingly the said accused was given the benefit of doubt. . In so far as Accused No.1 is concerned, the case was based on recovery of gold ornaments at his (-2-) instance. The Panch witness, P.W.6 who was examined did not support the case of the prosecution. There was no other evidence. In so far as P.W.14 - Praful Thakkar for reasons recorded in para.43 the learned Judge held that cannot be used against the accused. P.W. 13 was declared hostile. . In so far as accused No.2 is concerned recovery was also made. P.W.4 - Hasmukh Bhavsar is the Panch witness who was there at the time of the recovery from the house of Sanket Joshi. Sanket Joshi who was examined as P.W.5 did not support the case of the prosecution. According to him the police were making inquiry in a theft case of gold where his friends Suresh Shetty and Rajesh were involved. The evidence of P.W.11 was not believed. Considering this evidence the learned Judge found that the evidence of P.W.4 and P.W.5 as also P.W.11 cannot be used against accused No.2 and in the light of that the benefit of doubt was given to Accused 2. . In so far as accused No.3 is concerned, the learned Judge did not believe lthe evidence of P.W.12. There was no other evidence implicating the said accused and in that light of the matter the learned Judge was pleased to grant benefit of doubt to accused No.3. . In so far as accused No.5 is concerned, (-3-) LP.W.7 Subhash Pujari was examined for alleged recovery from accused No.5-Kiran Kotian. However, LP.W.7 failed to identify the accused Kiran Kotian as a person responsible for the alleged recovery effected from Sujeet Mandal, P.W.10. P.W.10 also did not refer to Accused No.5 for disposal of the said piece of bracelet and diamonds with him. Evidence of P.W.9 Devang Parikh was not believed. The prosecution sought to rely on the evidence of P.W.9 Devang Parikh did not refer to sale and purchase of diamonds and the value of the diamonds as Rs.1,10,000/-. The learned Judge in the absence of P.W.6 supporting the case of alleged recovery chose not to accept the testimony of P.W.9 Devang Parikh. The learned Judge observed that the evidence of P.W.9 Devang Parikh is not believable for the reason that he had never purchased the diamonds in the past and was knowing that Kiran Kotian, Accused No.5 was not knowing and had no knowledge about the diamonds and was never dealing in the diamonds. . In the absence of any evidence, the learned Judge also acquitted accused No.5. . In so far as accused No.6 is concerned P.W.3 - Shekhar Dattatram Belarekar did not identify Accused No.6 for introducing Accused No.2. The Court held that that there is no factual recovery (-4-) from P.W.3. The Court held that the evidence of P.W.10 was of no consequence. 3. Considering that the evidence on record was considered by the learned Judge and he found that it did not inspire confidence and/or the witnesses did not support the prosecution case with which we are in agreement we are of the opinion that this is not a fit case to grant the application for leave to appeal. . Hence Application for leave to appeal is rejected. Consequently Criminal Appeal is dismissed. (K.U.CHANDIWAL, J.) (K.U.CHANDIWAL, J.) (K.U.CHANDIWAL, J.) (F.I.REBELLO, J.) (F.I.REBELLO, J.) (F.I.REBELLO, J.)