1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application (APPA) No. 115 of 2011 in Criminal Appeal No. _______of 2011 State of Maharashtra, through P.S.O., P.S., Shirajgaon Kasba, Dist. Amravati. ..VERSUS.. Diwakar Shripath Korde and another Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. T.A.Mirza, A.P.P. for the Applicant/State. CORAM : Mrs.V.K.Tahilramani and Prasanna B. Varale, JJ. DATED : 11 th March , 2011 . Heard Mr. T.A.Mirza, learned APP for the applicant/State. 2. This application for grant of leave to file appeal is directed against the judgment and order dated 3rd January, 2011, passed by the learned 2nd Additional Sessions Judge, Achalpur in Sessions Trial No. 93/2009. By the said judgment and order, the learned Addl. Sessions Judge, Achalpur acquitted the respondents/original accused nos.1 and 2 of the offence punishable under Section 302 read with section 34 of Indian Penal Code. 3. The prosecution case, briefly stated, is that on 20/5/2009 Atul Gomkale (P.W.1) lodged a report at Police Station, Sirajgaon kasba stating therein that deceased Ganesh had gone to his field at about 11.00 a.m. Thereafter, accused no.2 Narendra had informed him that Ganesh committed suicide by hanging himself with the help of rope to a Mango tree. Hence, he along with others rushed to the spot. Thereafter, he lodged his report. The dead body of Ganesh was sent for post mortem. In the opinion of the Doctor, death was caused 2 due to strangulation by rope around neck with signs of throttling also. On the next day i.e. on 21/5/2009, Atul (PW1) lodged another report at said police station stating therein that on 17/5/2009, when he and his uncle Ganesh were present in the field, there was an altercation between accused no.1 Diwakar and Ganesh, hence he had suspicion against the accused persons. After completion of investigation, charge sheet came to be filed. 4. The prosecution has relied on the evidence of one eye- witness namely P.W.4 Janrao Baliramji Gulaxe. He has stated that when he was grazing cows in his field, at about 12.00 to 12.30 p.m., he heard shouts "DHAVA RE BAPPA MELO." He rushed to the spot. He saw Ganesh was lying on the ground, accused Diwakar was sitting on his chest and was giving blows by fists and kicks to Ganesh and accused no.2 Narendra was kicking Ganesh. P.W.4 Janrao is the sole eye-witness in the present case. It is noticed that though the incident occurred on 20/5/2009, the statement of this witness was recorded on 13/7/2009 i.e. almost two months after the incident. No plausible explanation has been furnished by the prosecution on the aspect of delay in recording the statement of P.W.4 Janrao. It is also to be noted that P.W.4 Janrao was very much present in the village, yet his statement was not recorded immediately. This becomes clear from his admission in his evidence that in the month of May, 2009, policeman had carried out the investigation in this Crime, however, he did not inform anything to police or to any of his relatives about the incident which occurred on 20/5/2009. He also admitted that in the month of June, 2009 also he had occasion to meet policemen 3 to 4 times, however, he did not inform police about the incident. This witness has admitted that one Machindra Korde is cousin of Diwakar. On 19/6/2009 i.e. one day prior to the incident, said Machindra had unnecessarily abused him and also given threats to him. Thus, 3 possibility cannot be ruled out that on account of animosity with Machindra, the brother of accused Diwakar, this witness falsely implicated the accused by way of an after thought. 5. As to whether Ganesh died homicidal death or he committed suicide, assumes much significance in the facts of the present matter. In this respect, we may refer to the evidence of P.W.8 Dr. Gaurav Ramdas Gawai. P.W.8 Dr. Gawai has clearly admitted that the symptoms which will present if a person is throttled, were completely absent in the case of Ganesh. Whereas, all the signs which were found were consistent with a case of hanging. Thus, we find that medical evidence also does not support the prosecution. 6. As far as lodging of First Information Report by P.W.1 Atul against accused persons is concerned, it is noticed that in the first report (Exh.49), he has not made any allegation against any of the accused persons. However, in the next report (Exh.50), he has stated that only because accused no.1 Diwakar had not attended funeral of Ganesh, he had suspicion against him. During his cross-examination, P.W.1 Atul has categorically admitted that when he lodged the report Exh.49 on the previous day, he had not even suspected that accused nos.1 and 2 were responsible in any manner for the death of Ganesh. He also conceded that when the earlier report (Exh.49) was lodged, he had not make any mention about quarrel between accused Diwakar and Ganesh. P.W.1 Atul has further admitted in his cross- examination that even in the report Exh.50, lodged by him, he had not expressed any suspicion that accused Narendra might be involved in this crime in any manner. P.W.1 Atul in his cross-examination further admitted that he had thought that Diwakar being owner of the adjacent land of Ganeshrao, ought to have attended the funeral of Ganeshrao and because he had not attended the funeral of Ganeshrao, he suspected him. In view of these fatal admissions given 4 by P.W.1 Atul, as has been rightly argued by the learned defence counsel, the possibility cannot be ruled out that because P.W.1 Atul had grudge in his mind that accused Diwakar had not attended the funeral of Ganeshrao he might have implicated the accused no.1 Diwakar in this crime by expressing suspicion against him. 7. The learned Sessions Judge has considered all the above aspects as well as other aspects and thereafter he has acquitted the accused/respondent nos.1 and 2. The Supreme Court in the case of C. Anthony .vs. K.G.Raghvan 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 reasonable and possible view, the High Court can not in an appeal against acquittal 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. So also, the Supreme Court in the case of State of Uttar Pradesh .vs. Dinesh, reported in (2009)3 Scale 345, has observed 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. 8. Looking to the evidence on record, we find that the view taken by the trial court is a reasonable and possible view, hence, no case is made out for interference. 9. Leave to file appeal is rejected. JUDGE JUDGE Diwale