[-1-] IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE JURISDICTION APPLICATION NO.4154 OF 2007 Mrs.Suman Kisan Soth ..Applicant Vs. Dadasaheb Namdeo Thombre and Ors. ..Respondents .... Mr.Shivaji K.Farakate with Smt.Sunita M.Ghadge Advocate for Applicant Ms.S.D.Shinde APP for Respondent .... CORAM: F.I.REBELLO AND CORAM: F.I.REBELLO AND CORAM: F.I.REBELLO AND SMT.V.K.TAHILRAMANI,JJ. SMT.V.K.TAHILRAMANI,JJ. SMT.V.K.TAHILRAMANI,JJ. DATE DATE DATE : APRIL 09, 2008 : APRIL 09, 2008 : APRIL 09, 2008 P.C.: P.C.: P.C.: 1. The Complainant has filed this application for leave to file appeal against the judgment and order dated 14th September, 2007 passed by the learned Ad-hoc Sessions Judge No.3, Baramati acquitting the Respondents-accused of the offence under Sections 302 and 307 of IPC in Sessions Case No. 82 of 2007. 2. We have heard the learned advocate for the [-2-] Applicant and the learned advocate for the Respondents-accused. We have perused the judgment and order of the learned Sessions Judge as well as the evidence in the present case. 3. The prosecution case briefly stated is as under: . That the accused persons entered into the house of P.W.1 Suman who is the complainant in the present matter. Both the accused persons were armed with knife and accused no.1 assaulted Suman on the chest and stomach and accused no.2 assaulted Sandip the son of the complainant. The complainant sustained injuries in the said incident, however, her son Sandip expired on account of the injuries. 4. The complainant has stated in her evidence that two masked persons came to her house and thereafter those persons inflicted the injuries as stated above. The complainant has specifically stated in her examination in chief that both the persons were masked. As per the evidence of the complainant in examination in chief, both the accused were wearing black cap and they had concealed their face with black cloth. Complainant has not stated that she [-3-] recognised the persons who are masked to be accused nos.1 and 2 on the basis of their height or built or voice or gait etc. It has clearly come on record that both the accused persons had concealed their face at the time of the incident. Looking to the evidence on record, we do not find that it was possible for the complainant to identify the two assailants as being the accused persons. 5. In addition to the evidence of the complainant, prosecution has relied on the evidence of P.W.6 i.e. constable Kale. In her examination in chief, complainant has stated that accused persons went away on red coloured motor-cycle. P.W.6 Kale has stated that he saw the accused persons on red coloured motor-cycle. It is also pertinent to note that the averment by Suman that the accused persons went away on red motor-cycle, has been proved to be an omission in the evidence of P.W.1 Suman. As far as P.W.6 Kale is concerned, he has admitted that he had seen the rider and pillion rider on a red motor cycle from backside, hence, he cannot state firmly whether the motorcycle was plied by the accused no.1 and accused no.2 was pillion rider thereon. Thus, he has admitted that on the basis of surmises [-4-] and conjecture, he has deposed that the persons passing on the said motor cycle, may be the accused. 6. Prosecution also relied on the seizure of the clothes of the accused no.1. However, it is observed that the description of the clothes of accused no.1 which have been seized and the description of the clothes worn by accused no.1 as given by P.W.1 Suman, does not tally, hence, this circumstance of seizure of clothes cannot be held against the accused. 7. Looking to the evidence on record, we are of the view that the view taken by the learned Sessions Judge is a reasonable and possible view. Hence, application for leave to appeal is rejected. [SMT.V.K.TAHILRAMANI,J.] [F.I.REBELLO, J.] [SMT.V.K.TAHILRAMANI,J.] [F.I.REBELLO, J.] [SMT.V.K.TAHILRAMANI,J.] [F.I.REBELLO, J.]