mss IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPLICATION NO. 5819 OF 2009 IN CRIMINAL APPEAL NO. OF 2009 THE STATE OF MAHARASHTRA .. APPLICANT Vs. MAHAVEER BHIMGONDA PATIL & ORS. .. RESPONDENTS Mr. Rajesh More , APP CORAM: SMT. RANJANA DESAI & SMT. V. K. TAHILRAMANI, JJ. DATED: 22/3/2010 P.C. The State of Maharashtra has prayed for leave to file appeal against judgment and order dated 7/8/2009 passed by the Sessions Court at Kolhapur in Sessions Case No. 85 of 2008 acquitting the respondents of the offences under Sections 143,147,148,302,324 read with Section 149 of the IPC. The incident in question took place in the night between 11/3/08 and 12/3/08 at the cremation ground of Chavanwadi in Taluka Karveer. 2. The case of the prosecution is that Prasad, Sachin and Santosh lighted one tire near the cremation ground and dropped the wire which they had stolen on the earlier day in fire with a view to melting it. At about 12-30 midnight. Accused 1,2,3,4 and 15 to 20 other villagers who are residents of village Sangavade reached the spot armed with sticks, iron pipes etc. They caught Prasad and Sachin and questioned them why they committed theft of cable wire and started assaulting them with those weapons and kick blows. Prasad and Sachin sustained injuries. Police carried them to C.P.R. Hospital. On the next day i.e. on 13/3/08 Prasad filed complaint at Karveer Police Station. Prasad succumbed to the injuries on 26/3/08. 3. Learned Sessions Judge has acquitted the accused on the ground that identification of the accused by PW 7 Sachin in the court cannot be believed. He has observed that sufficient light was not available at the scene of offence and in the light of burning fire PW 7 Sachin could not have identified the accused because Sachin was admittedly not a resident of village Sangavade and he admitted in his evidence that the mob which came near him was unknown to him. The mob was of about 30 people. No identification parade was held and as such identification of the accused by PW 7 Sachin in the court cannot be believed. 4. Learned Judge has also disbelieved PW 8 Santosh Mane, who claims to be the eye-witness on the ground that there was no sufficient light at the scene of offence and his story that he was assaulted by iron pipes is not substantiated by medical certificate Exh. 16. Learned Judge has also observed that apart from the discrepancies, a theft case is pending against this witness and his antecedents create doubt about his credibility. So far as complaint Exh. 48 lodged by deceased Prasad is concerned, learned Judge has observed that it was lodged belatedly i.e. on 13/3/08. Whereas PW 9 Tarachand the father of Prasad has stated that the deceased disclosed the names of accused Nos. 1 to 4 in the C.P.R. Hospital to him and he disclosed the other names after he came home Exh. 48 contains names of only accused Nos. 1 to 4. If other accused were also involved in the assault then their names would have been mentioned in Exhibit-48. It is also pertinent to note that PW 17, 18, 19 who were serving in Grampanchayat and PW 19 who is a member of Grampanchayat have all turned hostile. They have not supported the prosecution case. 5. In our opinion, since the case of the prosecution is that the mob attacked the deceased, the identification of the accused made by the witnesses in the court in the absence of identification parade, particularly when the evidence indicates that there was no sufficient light at the scene of offence is doubtful. Besides in a melee with such state of evidence, it is difficult to positively state what role was played by each of the accused. Learned Sessions Judge has, therefore, rightly acquitted the accused. The view taken by learned Sessions Judge is a reasonably possible view which cannot be disturbed in an appeal against acquittal. No case is made out by the State for grant of leave. Hence application for leave to appeal is rejected. (SMT. RANJANA DESAI, J.) (SMT. V. K. TAHILRAMANI, J.)