1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 1409 OF 2009 The State of Maharashtra ...Applicant VERSUS Bhivraj s/o Yamaji Marathe ...Respondent ..... Shri B.J.Sonwane, advocate for the applicant Shri N.C.Garud, advocate for the respondent ..... CORAM : NARESH H. PATIL AND SHRIHARI P.DAVARE, JJ. DATED : 8th October, 2009 ORAL ORDER : (Per Shrihari P.Davare, J.) 1 Perused. Heard both the learned respective counsel for the parties. 2 2 The applicant/State has filed the present application seeking leave to file appeal against the judgment and order of acquittal rendered by the Additional Sessions Judge, Beed on 13.1.2009 acquitting the respondent/accused for the offences punishable under Sections 302 and 201 of the Indian Penal Code. 3 We have scrutinized the record and proceedings. We have also perused the oral and the documentary and the medical evidence, as well as the statement of the accused recorded under Section 313 of the Code of Criminal Procedure. We also perused the impugned judgment and order dated 13.1.2009 and the reasoning given and the conclusions drawn by the learned Judge therein. 4 It is alleged that the victim Dnyaneshwar was the servant of the respondent/accused, who committed his murder on 7.4.2008 due to non-payment of amount of Rs.12,000/- by deceased Dnyaneshwar to his master i.e. the applicant herein and threw his dead body in the well. The investigation was carried out. The respondent/accused came to be arrested on 11.4.2008. The chargesheet was filed. The applicant was charged and tried for the offences punishable under Sections 302 and 201 of the Indian Penal Code and came to be acquitted as afore said. Being aggrieved and dissatisfied by the said judgment and order dated 3 13.1.2009, the applicant/State has preferred the present application for grant of leave to file appeal. 5 To substantiate the charges levelled against the respondent/accused, the prosecution has examined in as much as 15 witnesses. Admittedly, there is no direct evidence and the case of prosecution is rested upon the circumstantial evidence. The witnesses, namely PW2-Sundarabai Rathod, Labourer, PW3- Gangubai Rathod, Labourer and PW4-Kishan Rathod, Labourer were examined on the point of accused and deceased last seen together, but the said vital witnesses turned hostile and did not support the case of the prosecution and, therefore, the prosecution case sustained fatal blow. 6 We have also perused the medical evidence and PW12- Dr.Babasaheb Dhakane has stated that there was no fracture of hyoid bone. The postmortem notes Exh.36 disclose 4 external injuries and cause of death is said to be, “death due to asphyxia due to manual compression of neck simulating throttling”. However, the wire allegedly used in the said act was recovered on the spot itself and apparently there is no material to connect the respondent/accused with the said act. It appears that the prosecution has failed to establish the motive, since even PW5- complainant-Sukhdeo is silent in that respect in his testimony. 4 7 Pertinently, the clothes i.e. banian and nicker of the deceased bore blood stains and same were sent to the Chemical Analyser’s office for examination purpose, but the chemical analysis report thereof is inconclusive and hence, the Chemical Analyser’s report is also not of any aid and assistance to the case of the prosecution. 8 As regards the charge for the offence punishable under Section 201 of the Indian Penal Code, it is material to note that the alleged well wherein the dead body was thrown did not belong to the respondent/accused alone. Hence, the observations made by the learned Trial Judge in para no.46 of the judgment in that respect cannot be faulted with. 9 Having the comprehensive view of the matter and after scrutinizing the evidence and also after perusal of the impugned judgment and order dated 13.1.2009 and after considering the submissions advanced by both the learned counsel for the parties anxiously, we are of the considered view that the prosecution has failed to link the chain of circumstantial evidence unerringly to connect the respondent/accused with the alleged crime and, therefore, this is not a fit case to grant leave to the applicant/State to file appeal. 5 10 Hence, leave to file appeal stands refused. (SHRIHARI P. DAVARE, J.) (NARESH H. PATIL, J.) dbm/crap1409.09