1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 3994 OF 2009 The State of Maharashtra ...Applicant VERSUS Dilip Shivram Bondre and anr. ...Respondents ..... Shri K.S.Patil, A.P.P. for the applicant/State. ..... CORAM : P.V.HARDAS AND SHRIHARI P.DAVARE, JJ. DATED : 11.01.2010 ORAL ORDER : (Per Shrihari P. Davare, J.) 1 This is an application preferred by the applicant/State requesting leave to file the appeal. Respondent nos. 1 and 2 faced the trial in Sessions Case No. 45 of 2008 for the offence punishable under Sections 363, 302 r/w 34 of the Indian Penal Code and the learned Additional Sessions Judge, Sangamner acquitted the said accused i.e. respondent nos. 1 and 2 herein for 2 the offences for which they were charged by way of the judgment and order dated 12.6.2009. Being aggrieved and dissatisfied by the said judgment and order, the applicant/State has preferred the present application requesting leave to file the appeal. 2 It is alleged that there were illicit relations between respondent nos. 1 and 2. Respondent no. 2 is wife of the complainant Shivaji and respondent no.1 is the nephew of Bhausaheb Bondre, under whom the complainant Shivaji was serving. It is also alleged that the complainant had witnessed the illicit relations between respondent nos. 1 and 2 during the intervening night between 20th August and 21st August, 2008. It is further alleged that respondent no.2 and the complainant had two sons, namely Kiran about 4½ years age and Ketan about 2 years age. It is alleged that respondent nos. 1 and 2 eloped along with minor child Ketan on 21.8.2008 and threw Ketan in the well and obtained money by pawning gold chain and tried to flee away to Mumbai, but they were caught hold by the villagers and were taken to the police station. 3 Learned A.P.P. Submitted that PW5-Bhiva is the witness, who saw respondent nos. 1 and 2 together on 21.8.2008 when they were proceeding on motor cycle and on seeing PW5, respondent no.1 increased the speed of the motor cycle. Learned 3 A.P.P. submitted that thereafter immediately the body of deceased Ketan was found in the well on 21.8.2008 itself. Hence, it is submitted that there is prima facie evidence to connect respondent nos. 1 and 2 with the alleged crime. 4 We have perused the R. and Ps. which was made available to us for perusal purpose. Apparently, there is no direct evidence adduced/produced by the prosecution to connect respondent nos. 1 and 2 to the alleged guilt. The prosecution has produced the circumstantial evidence on record and considering the said evidence, and more particularly considering the deposition of PW5-Bhiwa, who allegedly saw respondent nos. 1 and 2 together lastly, it is seen that his statement was recorded by police personnel after 15 days and hence the same comes under the cloud of suspicion. 5 Besides that, it is apparent that there is no convincing evidence to connect respondent nos. 1 and 2 with the alleged crime. Hence, , we are of the considered view that the learned Additional Sessions Judge has taken the possible view and acquitted respondent nos. 1 and 2 for the offence punishable under Sections 363 and 302 r/w 34 of the Indian Penal Code, and no perversity is found therein, and therefore, no interference therein is warranted. 4 6 In the result, leave as sought for by the applicant/State to file the appeal stands refused and application stands dismissed. (SHRIHARI P. DAVARE, J.) (P.V.HARDAS, J.) dbm/cra3994.09