IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1693 OF 2008 CRIMINAL APPLICATION NO.1693 OF 2008 CRIMINAL APPLICATION NO.1693 OF 2008 IN IN IN CRIMINAL APPEAL NO. OF 2008 CRIMINAL APPEAL NO. OF 2008 CRIMINAL APPEAL NO. OF 2008 The State of Maharasthra ..Applicant. V/s. Sunil Balasaheb Malshikare ..Respondent. Mrs.S.D.Shinde, A.P.P. for applicant. Mr.V.V.Purwant for respondent. CORAM : F.I.REBELLO AND CORAM : F.I.REBELLO AND CORAM : F.I.REBELLO AND J.P.DEVADHAR, JJ. J.P.DEVADHAR, JJ. J.P.DEVADHAR, JJ. DATED : 11TH NOVENBER, 2008. DATED : 11TH NOVENBER, 2008. DATED : 11TH NOVENBER, 2008. P.C. :- P.C. :- P.C. :- 1. The State has come in appeal against the order of acquittal dated 27/9/2007 passed by the learned First Ad-hoc Additional Sessions Judge, Palghar, Dist. Thane in Sessions Case No.12/2007 whereby respondent was acquitted for the offences punishable under section 302 and 304-A of the Indian Penal Code. 2. Learned Judge formulated the following points for consideration :- - = : 2 : = - 1) Whether it is proved that on 17-1-05 at about 10.45 a.m. in the veranda of the office of A.P.M.C. Palghar, accused caused death of Ravindra Shinde by doing rash and negligent and not amounting to culpable homicide, to wit, jesting and joking with the deceased accused being armed with a carbine gun whereby one bullet shoot off the gun causing injury to deceased and thereby committed offence punishable u/s. 304-A of I.P.C. ? 2) Alternatively, whether it is proved that on the above given date, time and place, accused committed murder of Ravindra by intentionally or knowingly causing his death and thereby committed offence punishable under section 302 of I.P.C.? 3. In respect of both the points, learned Judge held in the negative. In so far as charge under section 302 is concerned, it was an admitted position that at the relevant time, accused was armed with a stengun, being a body guard of P.W.4 Anil Gavad. Deceased Ravindra was close friend of P.W.4 Anil and often used to accompany him. Accused also used to accompany P.W.4 Anil as his body guard. Deceased Ravindra and accused became friends. It is not in dispute that accused and the deceased Ravindra never quarrelled with each other and they often used to jest and joke with each other. Learned Judge recorded a finding that there was no motive either suggested or proved for the accused to commit the murder of Ravindra and the evidence is based only on circumstantial evidence. The only evidence is of P.W.1 Shripad and - = : 3 : = - P.W.2 Ketan, who have deposed that before they heard the noise of firing, they heard accused saying to the deceased Ravindra not to touch the gun or play with it. P.W.4 Anil has stated in his evidence that accused had made a complaint to him about joking and jesting by the deceased Ravindra and P.W.4 Anil had on one or two occasions told the deceased Ravindra not to do such mischief. Learned Judge thereafter also considered the nature of nature of injuries on the deceased. The prosecution, before the learned Judge, had contended that the victim was shot on the upper side to the downward and the victim was in sitting position and accused was in standing position. Learned Judge, considering the evidence of P.W.1 Shripad, P.W.2 Ketan, P.W.3 Bhagwan and P.W.4 Anil noted that these witnesses had stated that the accused was sitting on the chair in the verandah and none of these witnesses are declared hostile and, therefore, the prosecution case that the accused was standing was not established. Learned Judge also noted that the Investigating Officer P.W.5 P.S.I. Kudale had admitted that he had taken hand wash of the accused and it was sent for analysis to the Forensic Science Laboratory and the report Exh.22 shows to be inconclusive. On this basis, learned Judge held that there is no corroboration that the gun was fired by accused. For reasons aforestated, the charge under section 302 of Indian Penal Code was held to be not - = : 4 : = - established. 4. In s far as charge under section 304-A is concerned, learned Judge has carefully analysed the evidence on record of the same witnesses examined on behalf of the prosecution and came to the conclusion that there is serious doubt about the responsibility of the accused in the death of deceased Ravindra and as such gave the benefit of doubt to the respondent-accused. . We are in a case of an appeal against the acquittal. Learned Judge on considering the evidence found that it was not sufficient to prove the guilt of the accused beyond reasonable doubt in so far as offences under section 302 and 304-A of the I.P.C. are concerned. In our opinion, therefore, it would not be proper for us to interfere against the acquittal of the respondent-accused. 5. For the aforesaid reasons, we find no merit in the application and it is accordingly dismissed. (F.I.REBELLO, J.) (F.I.REBELLO, J.) (F.I.REBELLO, J.) - = : 5 : = - (J.P.DEVADHAR, J.) (J.P.DEVADHAR, J.) (J.P.DEVADHAR, J.)