(-1-) MGN IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, CRIMINAL JURISDICTION CRIMINAL APPLICATION NO.788 OF 2008 IN CRIMINAL APPEAL NO. OF 2008 The State of Maharashtra......Applicant Vs. Balu Bhanudas Waghmode & 2 ors..Respondents. Mr. P.S. Hingorani, APP for the Applicant Mr. G.R. Agarwal, for the Respondent No.1. CORAM: F.I. CORAM: F.I. CORAM: F.I. REBELLO REBELLO REBELLO & K.U.CHANDIWAL, JJ. K.U.CHANDIWAL, JJ. K.U.CHANDIWAL, JJ. DATED: 24TH JUNE 2008 DATED: 24TH JUNE 2008 DATED: 24TH JUNE 2008 P.C.: P.C.: P.C.: . The accused herein was charged for the offence punishable under Section 302 read with Section 34 of the I.P.C., in respect of an incident which took place on 29th January, 2006 which led to the death of one Kerba. The prosecution had examined P.W.6 Bharat Shankar Bharkade, an eye witness. From the evidence it would be clear that he was a chance witness. Apart from that his statement was recorded after 48 hours from the incident. he is the brother in law of the deceased. It is impossible to accept a case where after seeing the brother in law being assaulted this witness would not either file a Police complaint or complain to other persons about the attack by the accused on his brother in law. The learned Judge also noted that on the next date early in the morning he has (-2-) seen the police on the spot when he saw the wife of the deceased Kerba on the spot. If this be the case it is obvious that on the night or atleast on the next day this witness would have volunteered to have seen the accused having assaulted the deceased. This conduct of the witness must raise doubt about his testimony. The learned Judge, in our opinion, was right in doubting the testimony of this witness. 2. The other witness is P.W.5, who has been examined from what is described as last seen theory. Evidence in so far as this witness is concerned, the learned Judge noticed various omissions and contradictions in his evidence and for that reason doubted the same and, therefore, described the evidence of this witness as not trustworthy and reliable and consequently did not accept the same. 3. In so far as recovery of stone and knife is concerned the learned Judge has found that the Panchas were habitual panchas and apart from that there was no sealing. 4. Considering the above, in our opinion, the view taken by the learned Judge cannot be said to be a view incapable of being taken and not based on the evidence on record. Considering that no case is made out to grant leave to appeal. Hence application for leave rejected. (-3-) (K.U.CHANDIWAL, J.) (K.U.CHANDIWAL, J.) (K.U.CHANDIWAL, J.) (F.I.REBELLO, J.) (F.I.REBELLO, J.) (F.I.REBELLO, J.)