1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 2742 OF 2008 The State of Maharashtra. ... ..... Applicant. Versus Ajaykumar Nikkanprasad Kanojiya & Anr. ... ..... Respondents. Mrs. A. S. Pai, APP,for the Applicant. None for the Respondents. CORAM : BILAL NAZKI and A. A. KUMBHAKONI, JJ. DATED : 8TH SEPTEMBER, 2008. P.C.: The accused have been convicted of offences punishable under Sections 302, 392, 452 r/w 34 and 392 r/w 397 of the Indian Penal Code by an order dated 29th April, 2008 passed in Sessions Case No. 286 of 2007 by the learned 1st Ad-hoc Additional Sessions Judge, City Sessions Fast Track Court at Sewree, Mumbai. 2. The prosecution story was that the accused persons entered into the house of the deceased on 10th January, 2007 and committed a murder. It was contended that the husband of the deceased Aruna was working in “Reliance Energy”. On 10th January, 2007 he came to his house as usual at 2 about 7.00 p.m. and rang the door bell, but he did not get any response, therefore, he opened the door with the key which he was having. After entering the flat, he found in the bed-room his wife Aruna was lying in between the bed and the wooden cupboard in a pool of blood. On seeing this, he got frightened and came out and called Mr. and Mrs. Karnik, his neighbour. Thereafter, he informed the police about the incident. The police immediately came to the spot. Thereafter, investigation started. 3. According to the prosecution story, the cash amount of Rs.1,000/- was missing. Her clothes were torn and gold marriage ring and one gold bangle was also missing. The prosecution relied solely on the testimony of P.W.11. Then it was tried to be proved by the prosecution against the accused that P.W.11 had seen two persons, who were not known to him, rushing out of the building. P.W.11 had gone to deliver a gas cylinder to somebody else and while he was waiting after delivering the gas cylinder for receiving the charges, he saw two persons coming out of Silver-Oak building. According to this witness, these two persons were running and he saw them while running down by the staircase from the first floor of “C” Wing. He did not know them prior to the date of occurrence. The identification parade was taken where he identified these two persons. The 3 occurrence took place on 10th January, 2007. In his statement, P.W.11 stated that he was examined by the police on 12th January, 2007, 15th January, 2007 and finally on 16th January, 2007. There is an important link missing as to how the Police came to know about the presence of this witness on the spot when the accused were allegedly running away from the building. This was not explained by the prosecution. P.W.11 was a chance witness. The prosecution had to establish as to how the police came to know that this witness was present at the time when the accused left the place of occurrence. Even if, this circumstance proves against the accused that they were running away from the building at or about the time when the murder took place, even then that would be a case of strong suspicion and not a case for conviction for charge like murder. For these reasons, we do not find it appropriate to interfere with the judgement of the trial court. 4. In view of the above, the application for leave to appeal is rejected. Sd/- (BILAL NAZKI, J.) Sd/- (A. A. KUMBHAKONI, J.)