1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Criminal Application No. 2327 of 2009 . The State of Maharashtra .. Petitioner v/s. Suryaji Kedari Ghorpade ..Respondent Mr.D.P.Adsule, for the State. Mr.Anand Patil i/b. Mr.Shekkhar Ingawale for the State CORAM : B.H. MARLAPALLE & R.Y.GANOO, JJ. DATED : 9th December, 2009 P.C. : 1. Heard Mr.Adsule, ld. APP. Mr. Ingale appears for the respondent. This application has been filed under Section 378(3) of Cr.P.C. for seeking leave to appeal against the order of acquittal dated 9.1.2009 passed by the learned Addl. Sessions Judge of Kolhapur in Sessions Case No.149 of 2006. The respondent was tried in the said case for the offences punishable under section 302 r/w. 149, 302, 147 and 148 of IPC. 2. Originally the respondent was shown as one of the accused in Sessions Case No.14 of 2004 and he was shown to be absconding. Hence, Sessions Case No.14 of 2004 proceeded further against 8 accused by 2 separating the trial . The present accused was absconding. The prosecution had examined in all 26 witnesses and P.W.13 Rajendra Khot and P.W.14 Sanjay Khot were claimed to be the eye witness to the incident which had taken place on 5.10.2003 i.e. after two days of Dassera festival. P.W.13 and P.W.14 were cousins of the deceased by name Ravindra and P.W.13 had filed the complaint which was registered as the FIR at Exhibit 63. Sessions Case No.14 of 2004 finally resulted in the order of acquittal passed on 23.2.2006 and all the 8 accused were set free. The State of Maharashtra filed Criminal Application No.2209 of 2006 seeking leave to appeal against the said order of acquittal and the application came to be rejected by the Division Bench of this Court on 23.11.2006. Thus, the order of acquittal passed against the 8 accused in Sessions Case No.14 of 2004 was confirmed by this Court. 4. In sessions Case No.149 of 2006 the prosecution relied upon the evidence of P.W.1 to P.W.26 as was recorded in Sessions Case No. 14 of 2004 and in addition only two witnesses were called for cross examination i.e. P.W.15 Maruti Chothe and P.W.16 Kiran Patil. The trial court noted that P.W.15 Maruti was claimed to be the leader of the group and P.W.16 Kiran Patil in his cross examination admitted that on 3.12.2003 he was on duty at 3 Eksamba Village which was about 60 km away from the Village Madyal where the incident had taken place. He further admitted that he had stayed in the sugar factory during the night hours and he came to Madyal on 5.10.2003 to celebrate Dasera Festival. The trial Court, therefore noted that as on 3.10.2003, P.W.16 Kiran was not present and therefore the said witness could not have been present to be called as an eye witness. As the testimony of the star witness i.e. P.W.13 and P.W.14 was discarded in the earlier trial which was relied upon in the subsequent trial against the present respondent, the prosecution case could not result in conviction of the respondent in the fresh trial in S.C.No.149 of 2006. This court has already considered the evidence of all the 26 witnesses while confirming the order of acquittal passed in S.C.No.14/2004 in Criminal Application No.2209 of 2006. We have gone through the cross examination of P.W.15 and P.W.16 and the reasoning set out in the order of acquittal considering the additional cross examination of these two witnesses in S.C.No.149 of 2006.. 5. No fault can be found with the order of acquittal passed by the Court below. Hence leave to appeal is refused and the application is rejected. [R.Y.GANOO, J.] [B.H. MARLAPALLE, J.]