Cri.Application No.1091 of 2011 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO.1091 OF 2011 The State of Maharashtra ..Applicant Versus Balu @ Balasaheb Narayan Choudhari ..Respondent Mrs S.D.Shelke, A.P.P. for applicant CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 13th July 2011 PER COURT By this application the applicant/State seeks leave to file appeal against the judgment of the Sessions Judge, Ahmednagar, rendered in Sessions Case No.54 of 2010 dated 22.11.2010, acquitting the respondent of offence punishable under Section 302 of the Indian Penal Code. 2. Our attention has been invited to the order passed by us in Criminal Appeal No.475 of 2010, which was an appeal filed by the original complainant. The aforesaid appeal came to be dismissed by us by our order dated 18.2.2011. 3. We have heard the learned Assistant Public Prosecutor for the applicant. Cri.Application No.1091 of 2011 2 4. According to the prosecution the respondent whose agricultural field was adjacent to the agricultural field of deceased Kantabai, bore a grudge against deceased Kantabai as deceased Kantabai had assisted the prosecution in earlier sessions trial, in which the respondent was an accused and who had been convicted on the basis of the assistance rendered by deceased Kantabai to the prosecution. The prosecution claims that deceased Kantabai and Kavita (daughter-in-law of deceased Kantabai) had gone to their agricultural field and when Kavita had left the agricultural field, she had seen the accused abusing deceased Kantabai. In the evening she met her husband/complainant and informed him about the incident and the complainant, therefore, searched for Kantabai and during the search he noticed Kantabai lying in the field. The complainant in his evidence claims to have seen the accused fleeing from the scene of the incident. 5. At paragraph 12 of the judgment of the trial Court, the trial Court has enlisted the circumstances against the accused. The aforesaid circumstances may briefly be reproduced thus. (i) Motive; (ii) Last seen together; (iii) Accused seen running from the scene of the incident; (iv) Recovery of weapon at the instance of accused; (v) findings of the Chemical Analyzer’s report. Cri.Application No.1091 of 2011 3 6. In respect of the first circumstance regarding motive, the trial Court has come to the conclusion that the prosecution had utterly failed to establish the motive, i.e. the so-called assistance rendered by deceased Kantabai to the prosecution, which ultimately resulted in the respondent/accused being convicted. No documentary evidence was adduced by the prosecution to establish that deceased Kantabai had assisted the prosecution in the earlier sessions trial. The trial Court, therefore, recorded a finding that motive as a circumstance had not been proved by the prosecution. 7. In respect of the other circumstance, i.e. deceased being last seen alive in the company of the accused and the accused was seen running away from the scene of the incident, the trial Court recorded a finding that the entire prosecution case depended upon the evidence of Kavita and the complainant. Unfortunately, during investigation statement of Kavita had not been recorded. Though the Police were available in the village and were inquiring about the incident, Kavita had not volunteered to disclose any information, much less information relating to the commission of the offence. Kavita was examined as a witness though her statement had not been recorded and while appreciating the evidence of Kavita, therefore, the trial Court came to the conclusion that no reliance could be placed on the testimony of Kavita. Cri.Application No.1091 of 2011 4 8. In respect of the circumstance that the accused was seen fleeing from the scene of the incident, the trial Court found that the aforesaid circumstance wholly depended upon the evidence of complainant and Dnyanoba. There was variance in the evidence of complainant and Dnyanoba. Though Dnyanoba was cited as a panch witness, his statement was not recorded. In that background, therefore, the trial Court came to the conclusion that it was highly unsafe to place reliance on the uncorroborated testimony of the complainant. 9. In respect of the recovery of the weapons at the instance of the accused and the finding of blood stains by the Chemical Analyzer on the said weapons, the trial Court negatived the discovery of weapons on various grounds, more particularly on the ground that neither in the evidence of panch witness nor in the recitals of the seizure memo there was any reference to the presence of blood stains on the weapons. The trial Court also came to the conclusion that there was no evidence of sealing of the weapons at the spot from where it was recovered. The trial Court further found that the carrier had not been examined and, therefore, in the light of the above infirmities the trial Court chose not to place any reliance on the finding of blood stains on the weapons. 10. We have heard the learned Assistant Public Prosecutor in support of the various grounds raised in the application seeking the leave. Upon Cri.Application No.1091 of 2011 5 hearing the learned Assistant Public Prosecutor and perusing the findings recorded by the trial Court, according to us there is no perversity in the reasoning of the trial Court to warrant any interference in this application. There is no merit in the appeal and, therefore, this application is dismissed. Leave refused. ( A.V. POTDAR, J. ) ( P.V. HARDAS, J. ) (vvr/1091.11criappln)