1` IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application (APPA) No. 30/2011 in Criminal Appeal No. 12/2011 State of Maharashtra through Police Station Officer, P.S. Hinganghat vs. Sanjay Balaji Madavi and another ----------------------------------------------------------------------------------- Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's or directions and Registrar's orders. Orders. Mr. N.S.Khubalkar, APP for appellant. Mr. R.M.Daga, Advocate for respondents. CORAM : MRS. V.K.TAHILRAMANI & M.L.TAHALIYANI, JJ DATE : 13.06.2011 Heard. 2. The appellant- State of Maharashtra has preferred this application for leave to file appeal against the Judgment and order dated 30th March, 2010 passed by the Sessions Judge, Wardha in Sessions Case No. 64/2009. By the said Judgment and order, the learned Sessions Judge, Wardha acquitted the respondents of the charge under section 302 read with section 34 of the Indian Penal Code. 3. It is the prosecution case that on 26.6.2007 at about 9.30 p.m. both the respondents assaulted Atul Botkule with knife. Atul sustained four injuries in the 2` incident. He died on the way to the hospital. First Information Report came to be lodged by P.W. 2 Bhojraj Shende, who is uncle of deceased Atul. P.W.2 Bhojraj has stated that one Atul Borekar came and told him that respondents were beating Atul Botkule, hence he went to the place. He saw his nephew Atul Botkule lying in injured condition. Atul Botkule was unconscious at that time. He took him to the hospital. However, Doctor declared him as dead. Then he went to the Police Station and lodged his report. It transpired during the investigation that P.W. 1 Sayyad Ahmad witnessed the incident and his statement came to be recorded on the next day. After completion of investigation, charge sheet came to be filed. 4. Charge came to be framed against the respondents under section 302 r/w 34 of the Indian Penal Code. Respondents pleaded not guilty to the said charge and claimed to be tried. After going through the evidence adduced by the prosecution, the learned Sessions Judge acquitted the respondents accused as stated above. Hence, this appeal. 5. We have heard the learned APP for the appellant State as well as the learned counsel for the respondents. We have perused the evidence in the present case as well as the Judgment and order passed by the learned Sessions Judge. After giving our anxious 3` consideration to the matter, we are of the opinion, that the Judgment and order of the trial court deserves to be upheld for the reasons stated hereinafter. 6. The prosecution case is mainly based on the evidence of P.W.1 Sayyad Azad Ahmad who, according to the prosecution, is an eye witness to the incident. This witness has stated that deceased Atul was his friend. On the day of the incident Atul had consumed liquor and he was giving abuses to the public at large. Atul came to the pan shop of this witness to take cigarette. Accused also came to the pan shop of this witness to take cigarette. Accused no. 1 Sanjay gave abuses to Atul. They beat each other. Then Sanjay gave a blow with knife on the chest of Atul. Atul fell down. Then Sanjay and Praful ran away. This witness has categorically stated that accused no.1 Sanjay gave only one blow with knife on the chest of Atul. However, medical evidence shows that Atul sustained four injuries. The learned APP submitted that as soon as the first blow was given this witness ran away from the spot and hence he could not witness the accused giving further blows to the deceased Atul. Mr. Daga, learned counsel for the respondents pointed out that this witness has stated that accused no.1 gave a blow with knife on the chest of Atul, then Atul fell down and then accused ran away. Thus, according to Mr. Daga, after accused no.1 gave a blow to Atul, the accused persons 4` ran away and thus, there was no question of giving further blows to Atul. 7. It is noticed that this witness has stated that deceased Atul was his friend. He has stated only about one blow being given by Sanjay. Thereafter he closed his pan shop and went to his house. This witness did not shout for help nor did he call others to come and rescue the deceased. Learned APP submitted that this witness was frightened and hence he ran away from the spot. It has come in the evidence of this witness that in between his pan shop and house there were many houses. While he ran to his house, he did not inform anybody about the incident. He knew that one Govinda Supare was the Police Patil of the village. This witness also knew that if any incident occurs the same is to be informed to the police patil. However, he did not inform the police patil about the incident. Though he has stated that telephone facility was available, this witness has made no attempt to call the police nor did he inform the relatives of his friend Atul about the incident. Assuming that he was frightened and hence he ran away from the spot, but even thereafter he did not return to the spot to find out what had happened to his friend. After going home also, he did not inform other people about the incident nor did he come back to the spot in order to help his friend who was injured. We find the conduct of this witness to be unnatural. Moreover, 5` the incident had occurred at 9.30p.m.. Thereafter, this witness has not approached the police and informed them about the incident nor he has informed the relatives of the deceased including the complainant P.W.2 Bhojraj about the incident. He has stated that on the next day of the incident police had come to him and thereafter his statement came to be recorded. The entire conduct of this witness is unnatural and we find that his evidence does not inspire confidence. It has also been brought on record that deceased Atul was a habitual criminal which is seen from the evidence of P.W.1 Sayyad wherein he has stated that deceased Atul was arrested by the police in 8 to 10 cases. Thus, it is observed that deceased Atul had many enemies who had a motive to assault him. 8. Whether P.W.1 Sayyad actually witnessed the incident is rather doubtful because he could not tell about the clothes on the person of his friend nor could he remember what clothes were on the person of the accused at the time of the incident. He could not even give description of the knife. Had he really witnessed the incident which, according to him, was going on for half an hour he would have been able to give details. 9. It is further pertinent to note that incident had occurred at 9.30 p.m.. P.W. 1 Sayyad has admitted that in the said chowk, where his pan shop was situated, 6` there was no electric pole or street light. There was a grocery shop of one Jafar Hussain next to his pan shop, however, at the time of the incident, the shop was closed. This witness has admitted that the incident took place at some distance of his pan shop. Thus, it is rather doubtful that there was sufficient light for P.W.1 Sayyad to know the identity of the assailants. 10. The learned APP submitted that there is recovery of knife at the instance of accused no.1. According to the C.A. Report, the knife had human blood. As far as this fact is concerned, it is pertinent to note that P.W.1 Sayyad has not identified the knife as being the one used in the incident. Moreover, the panch witness, in relation to recovery of knife, has not supported the prosecution. The learned Sessions Judge has considered all above aspects as well as the other aspects and thereafter acquitted the respondents accused. 11. We may make useful reference to the decision of the Supreme Court in State of Uttar Pradesh vs. Dinesh (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. 7` 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 can not in an appeal substitute its findings merely because another contrary opinion was possible on the basis of the 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 are of the opinion that the view taken by the learned Sessions Judge is a reasonable and possible view, hence no case is made out for interference. 12. For the aforesaid reasons, the application for leave to file appeal preferred by the appellant State is rejected. Consequently, the appeal is dismissed. JUDGE JUDGE patle 8`