1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR CRIMINAL APPLICATION (APPA) NO.207 OF 2011 IN CRI.APPEAL NO. OF 2011. (STATE OF MAH. THR. PSO, BALLARSHA ..VS.. BABLU R. TIWARI & 4 OTH.) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. T.A. Mirza, A.P.P. for Applicant. CORAM : MRS. V.K. TAHILRAMANI AND M.L.TAHALIYANI, JJ. DATE : JUNE 07, 2011. The applicant-State of Maharashtra has preferred this application for leave to file appeal against judgment and order dated 24th November, 2010 in Sessions Case No. 127 of 2009, whereby respondents No.1 to 5 i.e. original accused Nos. 1 to 5 have been acquitted. 2. By this judgment and order the learned Sessions Judge, Chandrapur acquitted the respondents of the offences punishable under Sections 147, 148, 302 and 324 read with Section 149 of the Indian Penal Code and in alternative under Section 302 read with Section 34 and 324 read with Section 34 of the Indian Penal Code. 3. Prosecution case briefly stated is as under : P.W. 9 Lavkush Trivedi was son of Beniprasad Trivedi (deceased) and Pappu Tiwari was his maternal uncle. On 25.05.2009 at about 10.30 to 11.00 p.m. his father and his maternal uncle Pappu Tiwari were taking dinner. At that time all the accused came there. Accused No.1 Bablu Tiwari told Beniprasad that his son Lavkush had committed theft of Rs.Fifteen Thousand from his 2 brother. Accused No.1 further asked Beniprasad to handover Lavkush to them. Beniprasad refused to do so. Hence, all the accused assaulted Beniprasad with iron rods and sticks. At that time Pappu Tiwari tried to save Beniprasad but he was also assaulted with rods and sticks. Beniprasad Trivedi became unconscious, he was latter taken to hospital where he was declared dead. Pappu Tiwari was treated in the hospital. Lavkush lodged F.I.R. against the respondents. Thereafter investigation commenced. After completion of investigation chargesheet came to be filed. 4. Charge came to be framed against the respondent/ accused under Sections 147, 148, 302 and 324 read with Section 149 of Indian Penal Code. They pleaded not guilty to the said charge and came to be tried. The defence of the accused was of total denial. After going through the evidence adduced in this case the trial Court has acquitted the respondent as stated in paragraph 1 above. Hence, this appeal. 5. We have heard the learned Additional Public Prosecutor for the applicant/ State. We have perused the judgment and order as well as the evidence led in this case. After carefully going through the same we are of the opinion that the view taken by the learned Sessions Judge is a reasonable and possible view. 6. Three eyewitnesses have been examined in this case. The first eyewitness is P.W. 9 Lavkush Trivedi, he is son of deceased Beniprasad Trivedi and nephew of injured witness Pappu Tiwari. The injured witness Pappu Tiwari has also been examined as P.W. 10. Other eyewitness is P.W.17 Shyamu Tiwari. 3 7. P.W. 9 Lavkush, who is also complainant in this case and son of the deceased, has stated that on 25.05.2009 at about 10.30 p.m. he heard some sound. He saw that his father was lying there in injured condition and his maternal uncle was lying in injured condition beneath the truck. He called Shabbir (tyrewala) (P.W.4) and took the injured to the Hospital. He has specifically stated before the Court that he did not know any of the accused before the Court and it did not happen that these accused persons came and assaulted his father and maternal uncle. Thus, evidence of this witness is of no help to the prosecution. 8. The second eyewitness in this case is injured witness P.W. 10 Pappu Tiwari. He has stated that at around 10.00 to 11.00 p.m. 7-8 persons came and beat Beniprasad and him with wooden rod. He became unconscious. He regained consciousness in the hospital. He has stated that he did not know the names of the assailants who beat them and he did not identify any of the accused persons to be any of the assailants. Last eyewitness is P.W. 17 Shamu Tiwari. He has stated that he did not know about the incident. He was also declared hostile. In addition to the above witness the prosecution has also examined P.W. 4 S. Shabbir who helped Lavkush to take injured to the hospital. He has also not supported the prosecution case. The learned Additional Public Prosecutor has cross-examined all the three eyewitnesses, however, nothing can be illustrated in their cross-examination which was of any help to the prosecution. 9. Thus, it is noticed that none of the eyewitnesses supported the prosecution. On going through the other evidence on record, we did not find that there is any cogent and reliable evidence which establishes the guilt of the accused persons. We have already observed earlier that the view taken by the learned trial 4 Judge is a reasonable and possible view. We may make useful reference to the decision of the Supreme Court in State of Uttar Pradesh ..vs.. Dinesh, reported at (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. 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 cannot 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, the appellate Court should not disturb the findings of the trial Court. Looking to the evidence on record, we are of the opinion that there is no merit in this application. The application is, therefore, rejected, consequently the appeal is dismissed. JUDGE JUDGE RR..