1 cri-appln.4322-10 mgn IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.4322 OF 2010 The State of Maharashtra ..Applicant Vs. Naresh Shantaram Ghawali & Anr. ..Respondents Mrs. A.S. Pai, APP for the Applicant. CORAM: B. H. MARLAPALLE & U.D.SALVI, JJ. DATED: 19th January, 2011 P.C. Heard Mrs. Pai, the learned A.P.P. This is an application filed by the State seeking leave to appeal under Section 378(3) of the Cr.P.C., against the order of acquittal passed by the learned Sessions Judge, Ratnagiri on 4th May, 2010 in Sessions Case No.7 of 2009 for the offence punishable under Sections 302 and 392 read with Section 34 of the I.P.C. 2. Dattaram Gangaram Gurav, resident of village Reel, Guravwadi, of Ratnagiri district was reported to have left his house to go to village 2 cri-appln.4322-10 Varvade, but he did not return. His dead body was noticed near the footway parallel to the seashore in the neighbourhood of the grave yard of Reel Bhati. Injuries were noticed on his neck, head and abdomen, etc., thereby indicating that he was assaulted. His son Deepak-P.W.1 therefore, lodged a report at the Jaigad Police Station and an offence punishable under Section 302 of I.P.C., came to be registered against unknown persons vide C.R. No.29 of 2008. 3. On 4th October, 2008 both the accused came to be arrested. Dr. Ajay Maruti Kambale-P.W.10 conducted the postmortem of the dead body of Dattaram and opined that Dattaram died a homicidal death. The trial Court accepted the said evidence. However, the trial Court held that the prosecution failed to prove that any of the two accused or both of them had caused the said homicidal death of Dattaram. 4. The prosecution examined in all 15 witnesses and it based its case against the accused on the following grounds:- 1.They were seen in suspicious condition by P.W.1-Deepak and P.W.7-Nanda on the date of alleged incident near the spot of occurrence. 3 cri-appln.4322-10 2. Discovery of the incriminating information by the accused and recovery of the incriminating articles at the instance of the accused connecting them with the commission of alleged crime; 3.Extra judicial confession made by the accusedto Umesh Kolge- P.W.13 4.Motive. 5.Medical evidence and serological report. 5. In so far as the evidence of P.W.1-Deepak and P.W.7 -Nanda is concerned, it was stated by them that the accused were seen in the focus of torch light in the Warawade pathway and they had chased him. The trial Court noted that such a statement was not made by any of these witnesses when the F.I.R. was registered on the basis of the complaint made by P.W.1-Deepak. The last seen theory was sought to be advanced only by way of an afterthought. 6. On the point of recovery of incriminating articles the prosecution relied upon the recovery of watches from the accused No.1 and proved through the evidence of Sanjay Baburao Surve-P.W.14 and as per the recovery panchnama at Exhibit 50. This has been discarded by the trial 4 cri-appln.4322-10 Court on two grounds. Firstly, Exhibit 50 indicated that wrist watches were recovered from the pocket of both the accused and they were looking alike and similar to the wrist watch of the deceased. When these articles were recovered both the accused were in the police custody and the recoveries were allegedly made on 4th October, 2008 However, the remand report at Exhibit 65 and submitted to the nearest Court on 5th October, 2008 itself indicated that the police custody of the accused was claimed on the ground that the Investigating Officer required time for the recovery of weapons used in the commission of the offence, the wrist watch which was on the person of the deceased and his torch. The trial Court, therefore, concluded that if the wrist watch was recovered on 4th October, 2008, the remand report at Exhibit 65 submitted to the Court on the next day would not have mentioned about the recovery of the wrist watches. 7. So far as the extra judicial confession is concerned, we haveperused the oral depositions of Umesh Kolge-P.W.13 and it suffers from material contradictions. Obviously this was a got up witness and he has been rightly discarded by the trial Court. 8. The prosecution then relied upon the evidence of P.W.11 Shri 5 cri-appln.4322-10 Shekhar Mayekar in support of the ground of motive behind the crime. As per P.W.11 he has his agricultural land at Bhandarwadi and he had grown mango orchid. There were coconut trees in his land. He resides at Mumbai but cultivates his land on his own. In the night of 27th September, 2008 the deceased had met him at about 8.30 p.m., and informed him that the accused had stolen coconuts from the trees standing on his land and, therefore, he had called the accused No.1 and gave him warning. He further stated that the accused No.1 had informed him that the information of theft committed by him was given to P.W.11 by the deceased and that he would take care of him. In his cross examination this witness was proved to be unreliable. He could not give the Survey Number of his own land. He also stated that he had not engaged anybody as a watchman to protect the coconut and mango trees in the land and the deceased was not in any way engaged by him as a watchman. He also admitted that the information given by the deceased to him was known only to himself and the deceased. It was also revealed during his cross examination that he was available in the village for about 8 days from the occurrence but did not go to the Police and inform them that accused No.1 had threatened that he would take care of the deceased. 6 cri-appln.4322-10 9. The trial Court, therefore, concluded that the prosecution could not prove its case against both the accused beyond a reasonable doubt so as to establish the complicity of the accused in causing homicidal death of Dattaram and we are satisfied that the said evidence does not call for any reconsiderations at our hands. 10. Hence leave to appeal is refused and the Application is rejected. (U.D.SALVI, J.) (B. H. MARLAPALLE, J.)