1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPLICATION NO.624 OF 2010. The State of Maharashtra. ... APPLICANT. VERSUS 1. Siddeshwar s/o Babanappa Akhade and others. ... RESPONDENTS. ... Shri N.R. Shaikh, Addl. P.P. for applicant State. Ms. R.G. Gudgila, Advocate holding for Shri Vijay Sharma, Advocate for respondents. ... CORAM : S.B. DESHMUKH AND S.S. SHINDE, JJ. DATE : 18th JUNE, 2010. PER COURT: 1. We heard learned A.P.P. Mr. Shaikh for the applicant and Ms R.D. Gudgila, learned Counsel instructed by Advocate Mr. Vijay Sharma, who appears for the respondents. 2. The respondents, in this criminal application, have been charged and tried for the offence punishable under Section 302 r.w. 34 and section 201 r.w. 34 of 2 I.P.C. in Sessions Case No.28 of 2009. The learned Sessions Judge, Jalna on trial of the respondents, acquitted them of all the charges levelled against them i.e. offence under Section 302 r.w. 34 and section 201 r.w. 34 of I.P.C. The judgment of acquittal is recorded by the learned Sessions Judge, Jalna on November 5, 2009. 3. The applicant – State seeks leave to appeal under Section 378 of Code of Criminal Procedure, 1973. The record and proceedings of the case was called by us and is available. We shall make quick reference to the facts alleged by the prosecution. According to the prosecution, on 17th November, 2008 the respondent No.1 (accused No.1) had informed the Police Station, Paradh, Distrit Jalna that the dead body of his brother Ashokappa is found floating in the well water. The well is situated in the agricultural land of Ashokappa at village Walsavangi. On receipt of the information, Police Officer rushed to the land in question. Accidental death was registered. It was inquired into . The dead body was taken out of the well and sent for post-mortem. On the next day morning i.e. on 18th November, 2008, Ranjana widow of the deceased Ashokappa lodged report at Police Station, Paradh. The report implicated around four persons i.e. her brother- 3 in-law, wife of brother-in-law and two nephews i.e. two sons of respondents No.1 and 2. Out of these two sons, Santosh happened to be a juvenile in conflict with law. Indisputably, his case was split out and is pending before appropriate Court. After completion of the investigation, charge-sheet was submitted to the Court of J.M.F.C. The case was committed by the J.M.F.C., since being triable by the Court of Sessions, to the competent Court. 4. The respondents No.1 to 3 were charged for the offence punishable under Section 302 r.w. 34 and section 201 r.w. 34 of I.P.C. Mr. Shaikh, learned A.P.P. appearing on behalf of the prosecution has referred the oral as well as documentary evidence brought on record by the prosecution. Even though the entire material is referred to by the learned A.P.P., his emphasis is on the oral evidence of P.W.4 Baburao Kale, the only eye witness in the case at hand. According to him, the trial Court did not believe the evidence of P.W.4 Baburao Kale and the corroborating material brought on record on behalf of the prosecution as well. Acquittal recorded by the trial Court, according to him, is perverse. 5. The learned Counsel for the respondents 4 strenuously urged before us that the present is the appeal against acquittal. The trial Court has taken into account the oral as well as documentary evidence. The trial Court has consciously scanned the evidence brought on record by the prosecution and after appreciation in its proper perspective, the trial Court came to the conclusion that the prosecution failed to establish the involvement of the respondents in the offence punishable under Section 302 r.w. 34 and section 201 r.w. 34 of I.P.C. The learned Counsel for the respondents also comments upon the evidence of P.W. 4 Baburao Kale. The date of the alleged incident, other stages/steps taken by the investigator have been pointed out to us. According to the learned Counsel for the respondents, the conduct of the present respondent NO.4, while taking out the dead body of the deceased Ashokappa from the well is also important. According to the Counsel, sole eye witness P.W.4 Baburao was very well present in the mob. It was, in fact, appropriate time for P.W.4 Baburao to disclose or pass on the information relating to the crime in question to the Police Officer who was present on the spot. He chose not to disclose the information. In substance, according to the learned Counsel for respondents, evidence of P.W.4 Baburao has been justifiably discarded by the trial Court. She supports 5 the judgment of the trial Court. 6. The learned A.P.P. Mr. Shaikh fairly concedes that the prosecution case is based on the evidence of P.W.4 Baburao. According to him, the evidence of P.W.4 Baburao needs to be appreciated as a whole. He wants to suggest that examination-in-chief, cross-examination cannot be differently read and appreciated. A sentence or two from the examination-in-chief or cross- examination cannot be picked up and made basis either for acquittal or conviction of the accused person. He submitted that core part of the act alleged i.e. assault by the respondents to deceased Ashokappa has been stated by P.W.4 Baburao before the Court on oath and in the presence of the accused and their lawyer. 7. Noticing importance of the evidence of P.W.4 Baburao and keeping in mind the submissions made by the Counsel for the parties, we ourselves have seen the evidence of P.W.4 Baburao Haribhau Kale (Exh.56), who is the witness examined on behalf of the prosecution. Keeping aside the prelude and other part of the evidence of this witness, we have seen paragraph 1 and more specifically, the relevant portion from the evidence of this witness. The relevant portion reads thus: 6 “I was in the field of Ashok Akhade and Sidheshwar (accused No.1) and I was just proceeding the field of Revan. I heard the shouts. Some one shouting save save. That sound was coming from the field of Ashok and Sidheshwar. I went towards the place from where the shouts were coming. I saw that Sidheshwar, Swapnil, Santosh and Saraswatibai they were assaulting Ashok by means of iron rod. Saraswatibai was holding chilly powder in her both hands. I saw it personally. The assault was going on Ashok was shouting and ultimately he fell on the ground in an unconscious state.” In paragraph 2 of the evidence, this witness has made a statement that he was threatened by accused No.1 Siddheshwar, his wife Saraswatibai and his sons Swapnil and Santosh, and asked him not to disclose the incident to any one including the police and others, otherwise they would kill him. He was afraid of and returned to village and then went to Malkapur. 8. We have recorded the core part of the evidence of this witness in the foregoing paragraph. We have already noticed from paragraph 3 that he had returned to his native place Walsavangi on 19.11.2008 in the night from Malkapur. On return, he got knowledge that Swaapnil (accused No.2) and Santosh (juvenile) are arrested by the police. On the next day morning i.e. 7 on 20.11.2008, this witness claims that he had gone to Paradh police station as he was apprehensive of danger to his life at the hands of the accused persons. He narrated the whole incident to the police and also expressed his apprehension to his life at the hands of the accused. His statement was recorded by the police. 9. We have recorded the date of the incident, the manner in which dead body of Ashokappa was found floating in the well water, the core part of the evidence of P.W.4 Baburao, his return to his native place / home and receipt of information pertaining to the arrest of the accused persons and thereafter, disclosing the incident on the next day i.e. 20.11.2008 to Paradh Police. Indisputably, on 17.11.2008 the dead body was taken out from the well, police were present along with mob of villagers including P.W.4 Baburao. The trial Judge while appreciating the evidence of P.W. 4 Baburao, in paragraph 23 of the judgment has referred to this fact of recovery of the dead body on 17.11.2008. The trial Judge has also expressed opinion that ample opportunity was available to P.W.4 Baburao to disclose the incident which he had witnessed on 16.11.2008 till recording of his evidence or statement under Section 162 of Cr.P.C. on 20.11.2008 in Paradh Police Station. This was not done by him. The trial 8 Court, therefore, has considered the submissions made on behalf of the defence regarding status of the P.W.4 Baburao as got up witness. In paragraph 26, the trial Court has also discussed the evidence of P.W.1 Ranjana widow of deceased Ashokappa. We have seen the evidence of Ranjana also. According to her evidence, since morning i.e. from 10 – 10.30 a.m. till 6 p.m. on that day i.e. on 16.11.2008 she along with her children was present in the agricultural land. Indisputably, cotton crop was sown and raised by the farmers in the vicinity including deceased Ashokappa and Siddheshwar. From the evidence, it appears that it was season of plucking cotton. Presence of several persons either labourers or owners of the fields also emerges from the judgment of the trial Court. The entire family members of the complainant P.W.1 Ranjana and that of Siddheshwar (accused No.1) were also present in the land for entire day. It is also in the evidence that there was no partition by metes and bounds. Father of Siddheshwar and deceased Ashokappa was possessing 5 acres of land. Approximately 2 acres of land was given to the deceased Ashokappa. Similar was the area given to respondent No.1 and rest was being cultivated by their father. From the evidence, the trial Court Judge has noticed that one Mr. Vishnu Bodke had disclosed the information to P.W.1 Ranjana. We have also seen the 9 evidence of P.W.1 Ranjana who claims that Vishnu met her in the evening on 16.11.2008 at around 6 p.m. and passed on some information. Vishnu, in substance, had passed on information that Ashokappa was assaulted by the accused on 16.11.2008. But, then Vishnu had not witnessed the assault. The source of Vishnu for such information was one Mr. Gadekar. 10. Mr. Shaikh, learned A.P.P. fairly concedes that neither Mr. Vishnu nor Mr. Gadekar have been examined on behalf of the prosecution. We have seen the evidence of the Investigating Officer also. The trial Court, for all these reasons, did not believe the prosecution story neither accepted the evidence of P.W. 4 as an eye witness. The trial Court did consider the corroborative evidence so far as discovery of iron rod, clothes of deceased and accused No.1. On appreciation of the evidence, the trial Court ultimately recorded acquittal. 11. This Court, indisputably is appellate Court. The appeal against acquittal, has some parameters to be applied by this Court. The acquittal of the accused by the competent Court reinforces initial presumption of innocence in favour of the accused person. In our view, on assessment of the entire material brought on 10 record by the prosecution, considering the judgment of the trial Court and appreciation of the oral as well as documentary evidence by the trial Court, no perversity can be said to have been committed by the trial Court while acquitting the respondents. We are not inclined to grant leave as sought by the prosecution. 12. Criminal Application seeking leave to appeal stands rejected. We are not oblivious of the fact that minor / juvenile in conflict with law Santosh is being tried by the competent Court. The observations which we have made in this order are pertaining to the material which is brought on record against the present three respondents, which has been considered and appreciated by us. The competent Court, seized with the hearing of juvenile in conflict with law - Santosh, shall hear the parties and decide the said case, on its own merits. [ S.S. SHINDE, J ] [ S.B. DESHMUKH, J ] Kadam/*