0903appa67.11.odt 1/6 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. CRIMINAL APPLICATION (APPA) NO.67 OF 2011. State of Maharashtra through P.S.O.P.S.Imamwada, Nagpur. ..vs.. Manoj @ Mannu Mangal Kalimati and ors. ------------------------------------------------------------------------------------------------------------------------- Office notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's Orders. or directions and Registrar's orders. ------------------------------------------------------------------------------------------------------------------------- Mr.T.A.Mirza APP for the applicant/State. CORAM : V.K.TAHILRAMANI AND PRASANNA B.VARALE, JJ. DATED : 9TH MARCH, 2011. 1. The appellant – State of Maharashtra has preferred this application for leave to file appeal against the Judgment and Order dated 29/10/2010 passed by the learned Additional Sessions Judge, Nagpur in Sessions Trial No.525 of 2009. By the said judgment and order, the learned Trial Judge acquitted both the respondents – original accused nos.1 and 2 of the offence under Section 302 read with Section 34 of the I.P.Code. 2. The prosecution case briefly is stated as under - That on 13/8/2009 at about 9.45 p.m., two unidentified persons came to the house of PW 1 Narayan. Those persons took Manoj i.e. son of Narayan with them and assaulted him with knife near the house of Narayan. This incident was witnessed by PW 1 Narayan, his wife PW 8 Sau.Durgabai 0903appa67.11.odt 2/6 and a neighbour PW 3 Ashok. Manoj was taken to the hospital where he was declared dead. Narayan lodged FIR relating to assault on his son Manoj by two unknown persons. Thereafter, investigation commenced. After completion of investigation, the charge-sheet came to be filed against the respondents as according to the prosecution, the respondents were the persons who assaulted Manoj. 3. We have heard the learned APP for the applicant/State of Maharashtra. We have perused the judgment and order passed by the learned Sessions Judge as well as the evidence in this case. After carefully considering the matter, for the reasons stated below, we are of the opinion that this appeal deserves to be dismissed. 4. PW 1 Narayan, who is the father of deceased Manoj, has lodged F.I.R. In the FIR he has stated that two unidentified persons came to his house. At that time, Manoj was sitting in the house. Those persons stated that they wanted to talk with Manoj. They spoke to Manoj, thereafter all of them went outside the house. Within five minutes PW 1 Narayan heard noise that Manoj is being assaulted by two persons. He came outside the house and saw those persons assaulting Manoj with knife. PW 1 Narayan picked up a brick to throw towards the accused persons whereupon they ran away. It is pertinent to note that in the F.I.R. (Exh.36), PW 1 Narayan has specifically stated that two unidentified persons came to his house. However, in 0903appa67.11.odt 3/6 examination-in-chief he has named the accused persons and stated that they had come to his house. If at all these accused persons were known to PW 1 Narayan, he would have mentioned their names in FIR. However, in the FIR he had stated that two unknown persons had come to his house. This shows that prior to the incident he did not know the two assailants. In such case, it was very much necessary that the Identification Parade ought to have been held. Admittedly, no Test Identification Parade (TIP) has been held in the present case. In the facts and circumstances of the present case, identification by the witnesses of unknown assailants for the first time in the court cannot be relied upon. 5. P.W. 8 Sau.Durgabai, mother of deceased Manoj, has stated that she knew the accused earlier as they had come once or twice to her house. The prosecution is relying on the evidence of Durgabai to show that the accused persons were known, at least, to Durgabai and therefore there was no necessity of holding TIP. Reliance is placed on the evidence of Durgabai where she has stated that she was knowing accused earlier as they had come once or twice to her house and her son Manoj used to call accused no.1 as “Manya” and accused no.2 as “Datrya”. However, on perusal of evidence of PW 8 Durgabai, it is noticed that she stated that both the accused persons came and asked as to where Manoj was residing. She is slightly hard of hearing therefore one Ashok Lakote(PW 3) told those persons that Manoj was residing on the upper floor of the said building. She then asked Ashok 0903appa67.11.odt 4/6 for whom those persons were making enquiry and Ashok told him that they were asking for Manoj’s house. It is noticed that the testimony of PW 8 Durgabai is full of improvements and on going through her evidence, we found that it raises much doubt about the veracity of her evidence. When according to Durgabai, the accused had come to her house once or twice before, in such case, there was no reason for the accused to ask her where Manoj is residing. If they had come to her residence on earlier occasions, there was no necessity for them to again make enquiry about the residence of Manoj. It is to be noted that PW 8 Durgabai has not stated during her statement before the police that she knows the accused persons as they were friends of Manoj and they had come to her hou0903appa67.11se once or twice earlier. We find that these omissions are major in nature. In her statement before the Police when the spot panchanama was being carried out, she has clearly stated that two unknown persons came and assaulted her son. If she was knowing the names of the accused persons even as “Manya” or “Datrya”, she would have stated those names to the police when her statement was recorded. In her cross-examination she had admitted that she had shown the spot to the police and she had told the police that her son Manoj was assaulted by two unknown persons. All these facts show that in fact the accused persons were not known to Durgabai prior to the incident. In such case, as stated earlier, holding of TIP was essential. The same is the case with PW 2 Ashok. Even as far as Ashok is concerned, accused persons were unknown to him prior to the incident and no TIP was held. This 0903appa67.11.odt 5/6 identification of the accused persons for the first time in the court cannot be relied upon. 6. The prosecution has placed reliance on the circumstance of recovery of clothes at the instance of both these accused. Reliance is placed on the memorandum statements of both the accused persons wherein they had stated that they would produce the clothes. However, on going through the evidence especially that of the panch witness, we are of the view that no reliance can be placed on this circumstance. According to the panch witness PW 4 Prabhakar, only accused no.2 went inside the house and he brought out two pants and two shirts belonging to both the accused. The panch witness had not gone inside the house of accused and he had no knowledge from where these clothes were taken out. The panch witness was unable to state about any relevant details like; in which room the clothes were kept, from where they were taken out etc. In view of these facts, the testimony of panch witness does not appear to be worthy of reliance. 7. The learned Sessions Judge has considered all the above aspects along with other aspects and has thereafter acquitted the respondents/accused. We may make useful reference of the decision of the Supreme Court in State of Uttar Pradesh ..vs.. Dinesh reported in (2009)3 Scale, 345 wherein, in a case of appeal against acquittal, it was held that if two reasonable conclusions are possible on the basis of the evidence on 0903appa67.11.odt 6/6 record, the appellate court should not disturb the finding of acquittal recorded by the trial court. The Supreme Court in C.Anthony ..vs.. K.G.Raghavan Nair reported in (2003)1 SCC 1 has observed that when two views are possible and when the view taken by the trial court is a reasonable and possible view, the High Court cannot in an appeal substitute its findings merely because another contrary opinion was possible on the basis of the material on record. It is further observed that if two reasonable conclusions can be reached on the basis of the evidence on record, the appellate court should not disturb the findings of the trial court. Looking to the evidence on record, we find that the view taken by the trial court is a reasonable and possible view, therefore, no case is made out for interference. Hence, the application for leave to file appeal is rejected. JUDGE JUDGE chute