Cri.Appeal No.35 of 2011 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO.35 OF 2011 Babanrao s/o Bhimrao Aute ..Appellant (Orig.Complainant) Versus The State of Maharashtra and ors. CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 13th June 2011 PER COURT 1. The first informant, father of deceased Rajendra filed the present appeal questioning the correctness of the judgment of the Additional Sessions Judge-2, Jalna dated 23.12.2010 acquitting the respondents of offence punishable under Section 302 read with Section 34 of the Indian Penal Code. 2. Excepting P.W.5, the first informant and the Police Officers, none of the eye witnesses examined by the prosecution supported the prosecution. The entire case, which is based on circumstantial evidence, revolves round the testimony of P.W.5 Babanrao in respect of the circumstance that deceased Rajendra was last seen alive in the company of the accused. P.W.5 Babanrao in his evidence had stated that his son Rajendra was having love affair with Shilpa, daughter of one of the accused and on the day of the incident accused had driven to his house Cri.Appeal No.35 of 2011 2 on a motorcycle and deceased had gone along with the accused. He also states that a day or two earlier, one of the accused had driven to his house and had inquired about his son Rajendra, who then was not at home. He has also denied in his cross-examination that two days prior to the incident he had learnt that deceased was apprehending danger to his life at the hands of the accused. The trial Court, therefore, came to the conclusion that it was wholly unnatural that P.W.5 Babanrao would permit his son to go along with the accused late in the evening at about 9.00 or so, knowing that he apprehended danger at the hands of the accused. The trial Court further found that in the chit, which was found on the person of deceased Rajendra, there was no reference to his love affair with Shilpa. All that expressed in the said chit was he had apprehended danger and was being harassed by two accused viz. Ashok and Shailesh. Apart from the similarity of names there is nothing on record, which would establish that the persons arrested are the same persons, who had been referred to in the said chit. In respect of the report of the Chemical Analyzer i.e. regarding the blood stains on the clothes of the accused, the trial Court found that no reliance could be placed on the report of the Chemical Analyzer as there was no evidence of satisfactory nature that the articles, which were seized pursuant to the memorandum were kept in a sealed condition from their seizure till they were examined by the Chemical Analyzer. The trial Court also found that there was no evidence whatsoever of motive. Cri.Appeal No.35 of 2011 3 3. We have heard Mr Salunke, learned Counsel for the appellant with whose assistance we have perused the record and proceedings. We have carefully examined the evidence of P.W.5 Babanrao. Upon the careful consideration of the testimony of P.W.5 Babanrao and the other evidence adduced by the prosecution, according to us, the view taken by the trial Court is a possible view to be taken on the basis of evidence on record. We have not noticed any perversity in the reasoning of the trial Court. The prosecution has failed to establish that deceased Rajendra was in the company of the accused before he met with death. In other words, the prosecution has failed to establish that deceased Rajendra was last seen alive in the company of the accused. The other evidence is not of such a nature as would inspire the confidence of the Court for convicting the accused on its sole basis. Learned Counsel for the appellant has placed reliance on the judgment of the Supreme Court in Sucha Singh v. State of Punjab, AIR 2001 SUPREME COURT 1436. Since we have found that the evidence of the prosecution is deficient in respect of establishing that deceased Rajendra was last seen alive in the company of the accused, the ratio laid down by the said judgment of the Supreme Court, therefore, in our opinion would not apply to the facts of the present case. Cri.Appeal No.35 of 2011 4 4. After careful consideration of the evidence on record, according to us, there is no merit in the present appeal and the appeal is, therefore, summarily dismissed. ( A.V. POTDAR, J. ) ( P.V. HARDAS, J. ) (vvr/35.11criapeal)