1 (APPLN-924-11) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.924 OF 2011 The State of Maharahstra ...Applicant. V/s Uma @ Gudiya Subhash Chitre and Anr. .... Respondents. Dr. F.R. Shaikh, APP for the Applicant-State CORAM: V. M. KANADE & A.M. THIPSAY, JJ. DATE : 8 th September, 2011. P.C.:- 1. The State has filed this application for leave to file appeal being aggrieved by the judgment and order passed by the Additional Sessions Judge, Vasai dated 08/03/2011 whereby he was pleased to acquit Respondent Nos. 1 and 2 of the offences punishable under sections 302, 379 read with section 34 of the Indian Penal Code. 2. Prosecution case is in brief is that one Abdul Rehman, who was working as watchman, found a dead body of unknown person on 05/03/2009 at about 10.00 A.M. He 2 (APPLN-924-11) noticed that there were injuries on his head and he also noticed that there was a stone having blood-stains and a wooden plank was also found at that place. He informed his employer who came to the spot and intimation was given to police and the offence was registered and, during the course of investigation, police noticed that one Ratnakar was missing and, therefore, they gave intimation to the relatives of Ratnakar, who identified that the dead body was of Ratnakar. According to the prosecution, during the investigation, they learnt that deceased had gone in accused No.2’s auto rickshaw and accused No.1 had accompanied him. They had gone to a Chinese Stall and, from that place, they had gone to the place where the dead body was found where the accused No.1 had shown her willingness to have sex on payment of Rs 1000/-. However, since the deceased refused to pay the said amount, both, accused Nos. 1 and 2, assaulted him with the wooden plank and stone and he was murdered. The statements of witnesses were recorded. The stolen articles were recovered at the instance of the accused. Charge-sheet was filed in the Court of J.M.F.C. and the case was committed to the Court of Sessions. Accused pleaded not guilty to the said charge. The Trial Court, however, held that the prosecution had not established its case beyond reasonable doubt and, therefore, acquitted the accused. 3. We have heard the learned APP appearing on behalf of the State. He has taken us through the impugned judgment 3 (APPLN-924-11) and order passed by the Sessions Court and the notes of evidence which are annexed to the leave application. 4. It is a settled position in law that though in an appeal against an order of acquittal, the High Court has full power to review the evidence on which the order of acquittal has been passed and to reach to the conclusion that upon the evidence the order of acquittal should be reversed, but before reaching to this conclusion on facts, the High Court should give proper weight and consideration to such matters as (i) the view of the trial Judge as to the credibility of the witnesses; (ii) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted by the Trial Court; (iii) the right of the accused to the benefit of any real or reasonable doubt; and (iv) the slowness of the appellate Court in disturbing a finding of fact arrived at by a Court who had the advantage of seeing the witnesses. The High Court should also take into consideration the reasons given by the Court below in support of its order of acquittal. Further, in an appeal against acquittal if two views are possible, the appellate Court should not interfere with the conclusions arrived at by the Trial Court unless they are perverse. 5. In the present case, after having gone through the evidence on record, and the impugned judgment and order passed by the Trial Court, we are of the view that the Trial Court has given cogent reasons while recording its finding 4 (APPLN-924-11) that the prosecution had failed in proving its case beyond reasonable doubt. In the present case, there are no eye witnesses to the said incident. The entire case is based on circumstantial evidence. According to the prosecution, P.W. 12 – Dinesh Rangel Gaouda, the owner of the Chinese Stall, had seen the deceased Ratnakar in the company of accused Nos.1 and 2 while they were going in rickshaw. The Trial Court has rightly held that no description of accused Nos. 1 and 2 was given by this witness (P.W.12) to the police when his statement was recorded. No identification parade has been held and, therefore, the Trial Court has not relied on his identification of accused Nos. 1 and 2. The evidence of P.W.9 – Tukaram Govind Chavan also has been disbelieved since the Court has observed that identification of the accused in the company of the deceased by this witness cannot be relied upon. The documentary evidence of entry in register was also not produced by this witness (P.W.9). 6. Taking into consideration the cogent reasons given by the Trial Court while acquitting the accused Nos. 1 and 2, in our view, it will not be possible to interfere with the finding recorded by the Trial Court. Leave, therefore is refused. (A.M. THIPSAY, J.) (V.M. KANADE, J.) 5 (APPLN-924-11)