APPLN.5576-2010.sxw acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 5576 OF 2010 The State of Maharashtra ...Applicant. Vs. Bhola @ Sachin Kisan Phaslote & Ors. ...Respondents. ---- Mrs. M.M. Deshmukh, APP for the Applicant --- CORAM: B. H. MARLAPALLE & U. D. SALVI, JJ. Reserved on : 14th February, 2011. Declared on: 18th February, 2011. P.C.:- 1 The Applicant-State is seeking leave to appeal against the judgment and order of acquittal of the offences punishable under the Section 460, 302 read with Section 34 of IPC, 1860 passed by the learned Extra Jt. Ad-Hoc Additional Sessions Judge, Thane in Sessions Case No. 34 of 2009 on 30.06.2010. 2 Heard the learned APP for the Applicant-State. Perused the records and proceedings. 1 APPLN.5576-2010.sxw 3 It was the prosecution case that in the night between 5.10.2008 and 6.10.2008 some time around 12.30 a.m. when the deceased Mithulal Yadav, Raju Dhopte (PW-5) the security guards on duty were taking usual round in the pharmaceutical section of the Industrial Estate popularly known as Kishore Industrial Estate, situated at Majiwada, Thane (West), they suspected movements of thieves in the building housing the pharmaceutical section and as such the deceased Mithulal Yadav went to the first floor of the said section and Raju Dhopte (PW-5) went to the Ampoule Section for fetching employees working within the said premises; and thereafter Raju Dhopte, Kisan Yadav (PW-6) and some other employees working in Kishore Industrial Estate saw thieves running away in dark, and thereafter they noticed Mithulal Yadav the deceased lying unconscious with bleeding injuries on the right ear besides one fire extinguished cylinder. Mithulal Yadav was removed to Civil Hospital, Thane and, thereafter Mithulal Yadav succumbed on the way to Sion Hospital where he was being taken for his further medical treatment. 4 The record reveals that 11 witnesses were examined by the prosecution to bring home the guilt of the accused who were apprehended 2 APPLN.5576-2010.sxw along with the juvenile offender Arun More from the Sai Nagar hutment colony in the city of Thane on or about 8.11.2008. The impugned judgment further reveals that the testimonies of these witnesses were duly considered by the learned trial court with reference to the circumstances pitted against them by the prosecution. 5 While dealing with the first circumstance, the identification of all the accused persons by PW-5 Raju Dhopte in the test identification parade conducted by PW-10- Ms.Sarita Dhanawade and the identification of accused no.1 by PW-6 Kisan Yadav in another test identification parade conducted by PW-10 Ms. Sarita Dhanawade as the persons seen while running away from the premises of Kishore Industrial Estate on the fateful night the learned trial court observed from the evidence of PW-5 Raju Dhopte that the police had used force for making him and co-witness Yadav to admit the guilt and further the accused persons were shown to them at the police station. PW-6- Kisan Yadav, the learned trial court further observed, corroborated PW-Raju Dhopte as regards the malign influence of the police in the course of the investigation of the said case. It is for this reason, the learned trial court discarded the evidence concerning test identification parades conducted by PW-10 Ms. Sarita Dhanawade. 3 APPLN.5576-2010.sxw Other factors that weighed in the mind of the trial court is the background of PW-10 Ms. Sarita Dhanawade. Her evidence reveals that she was serving as Lady Police Naik at the time she had conducted the test identification parade. 6 Secondly, the prosecution had placed reliance on the alleged statement made by accused no.1 Bhola which allegedly led the police to the place of incidence and the shop where he had allegedly sold the stolen articles viz. three plastic drums and one iron plate as one more circumstance in its favour. PW-2 Vijay Ravji was examined as a panch witness to provide independent corroboration to the fact of discovery of such material circumstance in the course of the investigation of the said case. PW-2 Vijay Ravji in his cross examination deposed that narration of the alleged statement was made by PW-7 PI Sanjay Satav PI and not by accused no.1 Bhola at the police station, and he had previously acted as panch witness in criminal case investigated by Kapurbawdi Police Station. The learned trial court, with reference to the testimony of PW-7 P.I. Sanjay Satav, further observed that PW-7 Sanjay Satav had neither cited Laxman Meena, scrap dealer from whom the alleged stolen articles were recovered as a result of the alleged discovery made by accused no.1 Bhola, as a 4 APPLN.5576-2010.sxw witness nor did he indict Laxman Meena as a receiver of the stolen property. The learned trial court further noticed that signature of accused no.1 Bhola was not obtained by the Investigating Officer PW-7 PI Sanjay Satav on the memorandum of statement (Exh.27) and discovery panchnama (Exh.28) in order to register the presence of accused no.1 Bhola at the time of alleged discovery of the stolen articles. In the eyes of the learned trial court the evidence concerning the alleged discovery, therefore, rightly remained a suspect. 7 Thus, it can be seen that the prosecution evidence suffered from lacunae and infirmities sufficient enough to afford a room for legitimate doubt. No just purpose would, therefore, be served, if leave as sought is granted. Leave to appeal is, therefore, refused. 8 The Application stands disposed off accordingly. (U. D. SALVI,J.) (B. H. MARLAPALLE,J.) 5