1 appln-3975-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPLICATION NO. 3975 OF 2010 IN CRIMINAL APPEAL NO. OF 2010. The State of Maharashtra ..Applicant /Appellant. versus Raj Dashrath Kadam and others ..Respondents. Mrs A.S. Pai, Additional Public Prosecutor – for Appellant / State. CORAM : D. D. SINHA AND A. R. JOSHI, JJ. DATED : SEPTEMBER 06, 2010. P.C. : 1. Heard the learned Additional Public Prosecutor for State. 2. The appeal is directed against the judgment and order of acquittal dated 2.9.2009 passed by the Additional Sessions Judge, Pune, whereby the respondents are acquitted for the offence punishable under Sections 302, 201 read with section 34 of the Indian Penal Code as well as original accused No.5 (Dr Nana Namdeo Sonawane), was acquitted for the offence 2 appln-3975-10 punishable under Section 218 of the Indian Penal Code. 3. Considered the contentions canvassed by the learned Additional Public Prosecutor for State. Perused the judgment. The perusal of the judgment shows that though the prosecution has examined number of witnesses, however, Sahebrao Bhagwanta Utale (PW 4) was the sole eye- witness examined by the prosecution. So far as testimony of this witness is concerned, there are serious lacunas in the evidence of this witness. The statement of this witnesses, for the first time, was recorded after 30 days of the incident. The prosecution recorded statements of this witness on 7.4.2002, 16.4.2002, 28.3.2003 and 5.12.2003. The above referred statements were inconsistent with each other as well as material particulars of the prosecution. The evidence of this witness suffers from contradictions which are proved. The conduct of this witness is also unnatural, since this witness has not disclosed about the incident for a period of 30 days even to his own wife. The said conduct is not a normal human conduct and, therefore, the trial Court, in our view, is justified in holding that the testimony of this witness is unreliable and untrustworthy and it is difficult to base conviction on the testimony of this witness. 4. We have asked the learned Additional Public Prosecutor that apart from the said testimony of eye-witness, is there any other clinching 3 appln-3975-10 circumstantial evidence available on record. However, the learned Additional Public Prosecutor was unable to point out us any circumstance which would implicate the respondent with the crime in question. Even, otherwise, the prosecution has not brought on record the circumstantial evidence of a clinching nature and in absence thereof the findings of acquittal recorded by the trial Court, in our view, are just and proper. No case is made out for admission of the appeal. Hence, criminal application and appeal, both, are dismissed. (D. D. SINHA, J.) (A. R. JOSHI, J.)