1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. CRIMINAL APPEAL NO. 291 OF 2009 (Devidas Bhagwan Urade .v. State of Maharashtra and others) Office Notes, Office Memoranda of Coram appearances, Court's orders or directions Court's or Judge's Orders and Registrar's orders. CORAM : D.D. SINHA AND PRASANNA B. VARALE, JJ. 30TH SEPTEMBER, 2009. Heard Shri V.N. Morande, the learned Counsel for the appellant, Shri S.J. Jichkar, the learned APP for the respondent No.1 and Ms. Haidari, the learned Counsel holding for Shri M.A. Bapat, the learned Counsel for the respondent Nos.2 to 9. The present appeal is filed against acquittal by the appellant (original complainant) under Section 372 of the Code of Criminal Procedure. The State has not preferred any appeal against the order of acquittal. The learned Counsel for the appellant has submitted that the respondent Nos.2 to 9 were prosecuted for the offence punishable under Sections 302, 120(B), 143, 148 read with Section 149 of the Indian Penal Code. It is contended that the trial Court acquitted the respondents and being aggrieved by the said decision, the appellant (original complainant) filed the present appeal. It is contended that the Investigating Officer conducted investigation in a most dishonest manner in order to favour the defence which has resulted in miscarriage of justice. It is contended that the evidence of PW-4 Tukaram, who was the star witness of the 2 prosecution, did not consider by the trial Court in its proper perspective which has also caused total prejudice to the defence and, therefore, the order of acquittal is unsustainable in law. It is further contended that the complainant is the son of deceased Bhagwan who was brutally murdered by the respondent Nos.2 to 9 and in spite of evidence available on record, the judgment and order of the trial Court acquitting them is unsustainable in the eyes of law. It is contended that if the investigation is dishonest then in that event this Court under Section 386 of the Code of Criminal Procedure has power to remand back the matter to the trial Court for denovo trial and this is a fit case where the order of acquittal needs to be quashed and set aside and the matter be remanded back to the trial Court for fresh trial. Shri S.J. Jichkar, the learned Additional Public Prosecutor for the respondent/State has submitted that the State, after considering the evidence on record decided not to file the appeal against acquittal. It is contended that the evidence of PW-4 Tukaram has been considered by the trial Court and found that there are material omissions in his first statement as well as non disclosure of the incident by him to another witness which was fatal to the prosecution. The learned APP, therefore, contended that the decision taken by the State not to file appeal was based on the evidence available on record. We have considered the rival contentions and also perused the decision of the trial Court. Insofar as the appreciation of evidence of PW-4 Tukaram is concerned, the observations have been 3 made by the trial Court in para 33 of its decision. Perusal of the same would show that PW-4 Tukaram has examined as panch witness to prove the spot panchnama. Similarly, he failed to disclose the incident in his first police statement and, therefore, the trial Court did not place reliance on the testimony of this witness and in our view is rightly so. There was no other credible and reliable evidence adduced by the prosecution in order to bring home the guilt of the respondent Nos.2 to 9 under Section of 302 of the Indian Penal Code. Section 386 of the Code of Criminal Procedure deals with the powers of the appellate Court and contemplates that the appellate Court after perusal of record and after hearing the appellant and public prosecutor, if satisfies that there are no grounds for interference, dismiss the appeal or if it is appeal from the order of acquittal, reverse such order and direct that further enquiry be made or at least the accused be retried or find him guilty and pass sentence on him according to law. It does not contemplate that if the investigation is faulty, that can be the ground to order retrial and, therefore, the contention of the appellant so far as this aspect is concerned, cannot be accepted. There is no quarrel with the decision of the Apex Court in the matter of Zahira Habibulla Sheikh and another .v. State of Gujarat and others (reported in 2004(4) SCC 158). However, insofar as the facts and circumstances of the present case are concerned, they are in fact different than the one involved in the said 4 case and, therefore, the present appellant cannot derive much benefit from the said decision. In the circumstances, no case is made out for showing indulgence. Hence, the present Criminal Appeal is dismissed. JUDGE JUDGE *rrg.