AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.5469 OF 2009 The State of Maharashtra ... Applicant Vs. Rajendra Dattatraya Niwangune & Ors. ... Respondents Mr. V.B. Konde-Deshmukh, A.P.P. for the State. CORAM: MRS. RANJANA DESAI & MRS. V.K. TAHILRAMANI, JJ. DATED : 23RD MARCH, 2010. P.C.:- 1. The State of Maharashtra has filed this application for leave to appeal against judgment and order dated 6/8/2009 passed in Sessions Case No.171 of 2008, whereby learned Additional Sessions Judge has acquitted the respondents of offences punishable under Section 302 read with Sections 34 and 201 of the Indian Penal Code (for short, “the IPC”). 2. The case of the prosecution is that the deceased is the AJN 2 younger brother of the complainant – Sunil. He was running a Sumo jeep on hire from Donje Phata to Sinhagad Fort. On 17/9/2007, at about 6.00 p.m., the deceased came back to home after attending his regular job and then he went to Donje Phata on foot. He, however, did not return. In the morning of 18/9/2007, the complainant received information that one person is lying in an injured condition adjacent to Pune Panshet Road, in front of Lexon Binders Company in local limits of Village Gorhe Budruk. The complainant and his brother rushed to the spot of incident. They found the deceased lying in an injured condition with blood coated clothes and injury of a sharp weapon on the portion of his left chest. After confirming that the deceased is dead, the complainant rushed to Haveli Police Station and lodged a police report and investigation was set into motion. 3. In support of its case, the prosecution has basically relied on PW-2 Suresh Shamrao Masram and PW-4 Yogesh Gajanan Bhilare, who claims to own a shop where he repairs tyres. According to him, two unknown persons came to him on 17/9/2007 at 6.30 p.m. for repair of a punctured wheel of their motorcycle. At that time, the deceased came there. They had AJN 3 some discussions and they left the place. PW-4 also owns a shop in the nearby area. He also claims to have seen the accused in the company of the deceased. 4. Learned Judge has disbelieved PW-2 and PW-4 on the ground that at the place of incident, there was no sufficient light. Admittedly, the accused were not known to PW-2 and PW-4. Accused 1 was arrested on 29/9/2007 and accused 2 was arrested on 11/12/2007 and the test identification parade was held on 16/2/2008 i.e. nearly about 17 months after the date of incident. Learned Judge has held that as such, the identification of the accused after 17 months of the incident from the date of incident is doubtful particularly when the prosecution witnesses have not given any description of the accused. We find substance in the reasoning of the learned Sessions Judge. 5. Apart from the evidence of PW-2 and PW-4, the prosecution has also relied on recovery of Kukri (article 4). Prima facie, it appears to us that recovery is of no assistance to the prosecution because there were no blood stains on it. At the instance of accused 1 clothes worn by him are alleged to have been recovered. However, they were also not having AJN 4 blood stains. At the instance of accused 2, motorcycle is recovered. However, the motorcycle was lying in an abandoned condition. Its ownership was also not investigated into by the investigating officer. Prima facie, therefore, this recovery also does not help the prosecution. Motive is also not established by the prosecution. In the circumstances, it appears to us that the view taken by the Sessions Court is a reasonably possible view. Leave to appeal is, therefore, rejected. 6. Application is dismissed. [MRS. RANJANA DESAI, J.] [MRS. V.K. TAHILRAMANI, J.]