1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPLICATION NO.580 OF 2010. WITH CRIMINAL REVISION APPLICATION NO.333 OF 2009. The State of Maharashtra. ... APPLICANT. Versus 1 Ashok @ Shakal s/o Lala Pawar and others. ... RESPONDENTS. ... Shri V.D. Godbharle, A.P.P. for the applicant State. Shri S.J. Salgare, Advocate holding for Smt. Sadhana S. Jadhav, Advocate for respondent No.4. Shri K.B. Jadhav, Advocate for Respondent No.5. Respondent Nos.1 to 3 served – absent. ... CORAM : S.B. DESHMUKH AND S.S. SHINDE, JJ. RESERVED ON: 20th July, 2010. PRONOUNCED ON: 22nd July, 2010. PER COURT: 1. This application is filed by the State seeking leave to appeal under Section 378(1)(B) of the Cr.P.C. Challenging the judgment and order of acquittal dated 5th November, 2009 passed by the Adhoc Addl. Sessions Judge-1, Jalna in Sessions 2 Case No.3 of 2009. 2. The respondents herein, who are original accused, were tried for the offence punishable under Sections 395 and 120-B of I.P.C. It is the case of the prosecution that the complainant and accused Nos.4 and 5 are doing the same business and they were knowing day to day affairs of each others. Prior to eight days of the incident, accused Nos.4 and 5 hatched criminal conspiracy with accused No.2 Deepak in a hotel. The conversation amongst these accused was heard by one of the prosecution witnesses. After eight days of hearing the conversation, accused Nos.1 to 3 and other persons committed dacoity in the house of the complainant and looted an amount of Rs.2 lacs. It is further alleged that police jeep came in that area. However, the accused ran away from the house of the complainant. It is further case that while coming in a vehicle, some Mohammedan persons saw the accused persons on hills. The complaint was lodged by the complainant. Accused 3 Nos.1 to 3 were arrested in other offence of similar nature. They were also arrested in the present case. They were identified by four Mohammedan persons and the complainant while they were in police custody. The accused Nos.4 and 5 were also arrested. They have given memorandum statements and produced certain cash amount in pursuance thereof. Investigation was conducted. After competition of the investigation, charge- sheet was filed before the Court of J.M.F.C. for offences punishable under Sections 395 and 120-B of I.PC., who in turn, committed the case to the court of Sessions the offence being exclusively triable by the Sessions Court. 3. During trial before the Sessions Court, prosecution examined in all ten witnesses. The trial Court, after framing points for its determination and hearing the respective parties and after appreciating the evidence brought on record by the prosecution, acquitted the respondents herein. Hence, this application is 4 filed by the prosecution seeking leave to appeal against the said judgment and order of acquittal. 4. We have heard learned A.P.P. for the applicant – State and the learned Counsel for the respective respondents. We have also perused the impugned judgment and the record and proceedings made available. It appears that the respondents were charge-sheeted only under Sections 395 and 120-B of the I.P.C. It further appears that the trial Judge framed three points for determination. The trial Court, after assessing the evidence brought on record, held that the prosecution failed to prove the charge under Section 120-B and 395 of I.P.C. On our independent scrutiny of the evidence, it appears that on the point of conspiracy, the P.W.6 Bansi was the star witness examined on behalf of the prosecution at Exh.32. The prosecution has alleged that P.W.6 Bansi had been to weekly market of village Sukhapuri along with 5 Nandu and they enjoyed tea in a hotel. After coming out of the hotel, he saw accused Nos.4 and 5 talking with each other behind a hotel. They told to accused Deepak that Prem Saoji (complainant) is a businessman and he had lot of money. Accused Nos.4 and 5 also told Deepak that they have to do their work and they would inform later on on phone. The witness P.W.6 Bansi left the place. After eight days of it, he came to know about the commission of offence in question. It is further case of the prosecution that P.W.6 was present at the time of panchanama made by police but, he did not disclose the said fact about the conspiracy hatched by accused nos.4 and 5 against the complainant. P.W.6 claims that he had seen accused nos.1 to 3 in the police station after fifteen days of the incident and he told the Investigating Officer about the said fact. However, the Investigating Officer P.W.10 Dilpak deposed that P.W.6 Bansi met him for the first time on 21st August, 2008 though the offence was committed on 2nd January, 2008 and the complaint 6 was made at the same night. Therefore, the evidence of P.W.6 Bansi that he saw the accused Nos.1 to 3 in the police station after 15 days of the incident and that he disclosed the fact which he had heard in the weekly market to the I.O., is falsified by the evidence of the I.O. P.W.10 Dilpak who stated that P.W.6 Bansi met him for the first time on 21st August, 2008. The Investigating Officer has further categorically deposed in his evidence that he did not meet the P.W.6 Bansi after fifteen days of the registration of the crime. The trial Court has rightly concluded that P.W.6 Bansi is not a truthful witness. It is also pertinent to note that though P.W.6 Bansi claims to have witnessed criminal conspiracy hatched by accused nos.4 and 5 in the weekly market against the complainant, even according to P.W.6 he did not disclose the said fact to the complainant and only after commission of the offence, the said fact was disclosed by him to the I.O. The trial Court has discussed the evidence of P.W.6 and P.W. 10 I.O. In respect of alleged conspiracy hatched 7 by the original accused Nos.4 and 5 and came to the conclusion that the said charge of criminal conspiracy is not proved by the prosecution. On our independent assessment of the evidence of P.W. 6 Bansi on the point of conspiracy, we are of the opinion that the prosecution has utterly failed to prove the said charge against the respondents / accused. 5. Coming to the another charge under Section 395 of I.P.C., the trial Court has recorded the finding that even according to the complainant, he saw three persons inside his house taking away the amount of Rs.2 lacs. The complainant has not stated in the complaint or in his evidence as to how many persons were waiting outside. Therefore, the trial Court has concluded that to commit an offence under Section 395 of I.P.C., there should be minimum five persons involved in the incident and on that count, the trial Court has recorded the finding that the prosecution has failed to prove the charge of dacoity. The trial Court has 8 also commented upon the evidence of other witnesses P.W.2, P.W.3 and recorded findings. The trial Court has discussed the evidence of P.W.5 Sunil Saoji (complainant) in paragraph 10 of the judgment. The identification parade of the accused Nos.1 to 3 carried out by the prosecution was not in accordance with the procedure prescribed for that purpose. The prosecution has brought on record the evidence about identification of accused Nos.1 to 3 in police lockup van. Therefore, the trial Court has concluded that the identification carried out was not as per the procedure prescribed for that purpose. In substance, the identification of accused Nos.1 to 3 in police lockup claimed by the prosecution has been negated by the trial Court. 6. On the point of recovery panchanama, P.W.8 Dnyaneshwar had been examined at Exh.35. He is son of P.W.6 Bansi, who happens to be the witness on the point of criminal conspiracy. The trial Court has taken note of the fact that the witness 9 P.W.8 Dnyaneshwar has thick relations with the complainant. Though the prosecution has claimed that accused Shivnath gave memorandum and showed his readiness to produce amount of Rs.9,000/- under panchanama Exh.36 and later on produced that much amount from his village Wadikalya which was seized under the panchanama Exh.37 and also that the other accused Jayendra had produced an amount of Rs.6,000/- under memorandum statement Exh.38, which was seized under Exh.39, the witnesses which are examined in respect of this memorandum panchanama and seizure panchanama have given different timings of the panchanama which is totally contradictory. The evidence of the I.O. about the memorandum statement and seizure panchanama is cryptic and insufficient. On reading his evidence, it appears that he has not given any importance to the memorandum statement and seizure. The trial Court has concluded that the evidence of P.W.8 Dnyaneshwar and P.W.10 I.O., on the point of memorandum and seizure panchanamas is not consistent. On the contrary, they have 10 falsified the evidence of each other and the timings given by P.W.4 has falsified the contents of said panchanama. 7. The trial Court, taking into consideration the entire evidence brought on record by the prosecution to sustain the charge of conspiracy and dacoity, has in detail discussed about the evidence and arrived at the findings that the prosecution has failed to prove the charges levelled against the respondents. 8. We have given due consideration to the rival submissions and also perused the judgment and order against which leave to appeal is sought for and also we have perused the record and proceedings made available and we are of the opinion that the the trial Court has taken a reasonable view. The findings recorded by the trial Court are not perverse and there is no reason to upset those findings. Therefore, we do not find any substance in the application filed on 11 behalf of the State seeking leave to appeal. 9. We are, therefore declined to grant leave to appeal against the judgment and order of acquittal passed by the Adhoc Addl. Sessions Judge-1, Jalna in Sessions Case No.3 of 2009. Hence, the application is rejected. The order passed in this application is restricted qua the respondents herein, who were tried and acquitted by the trial Court. In view of disposal of the criminal application, nothing survives in the revision application for consideration. Hence, revision application stands disposed of. [ S.S. SHINDE ] [ S.B. DESHMUKH ] JUDGE JUDGE Kadam/*