1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Appeal No.155/2010 [State of Maharashtra .vrs. Moreshwar Arjun Bahale and others] ................................................................................................................................................................... Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ................................................................................................................................................................... CORAM : A.P. LAVANDE & P.D. KODE, JJ. DATED : AUGUST 06, 2010. Heard Mr. T.A. Mirza, learned APP for the appellant/State. The appellant/State seeks leave for preferring an appeal against judgment and order of acquittal dated 27.4.2009 passed by learned Additional Sessions Judge, Yavatmal in Sessions Trial No.27/2008 acquitting respondent nos.1 to 5 for offences under Sections 147, 148, 302 r/w Sec. 149 and Section 307 r/w Sec. 149 of the Indian Penal Code. All the respondents were charge sheeted by Yavatmal Police Station for commission of such offences as a result of investigation of Crime No. 325 of 2007 registered upon the information given by 2 PW1 Chunilal regarding incident of assault upon himself, his sons Nitesh and Rajendra occurred on 10.11.2007 at about 5.00 p.m. It was the prosecution case that first informant PW1 Chunnilal while returning to the house after purchasing grocery articles, was assaulted by respondent no.2 by kicks and fists. His wife Pramila PW2 hearing the shouts had rushed at the place of incident. The friends of respondent no.2 i.e. the other respondents and Deepak a juvenile in conflict in law also rushed to the spot and started beating PW1 by means of fists and kicks. Thereon, sons of first informant namely Rajendra and Nitesh had rushed for helping the father PW1. The respondent no.1 by means of cricket bat assaulted on the head of Rajendra and Nitesh. Nitesh sustained bleeding injury on his head while Rajendra sustained injuries to the brain and become unconscious. All the assailants had ran away. Rajendra was firstly taken to Government Hospital at Yavatmal and then to CRIMS Hospital at Nagpur for a day. Thereafter he was admitted to Government Medical Hospital at Nagpur. During the course of the treatment, Rajendra succumbed to death on 16.11.2007. PW1 had filed first information report on 15.11.2007. The perusal of the record reveals that 3 prosecution had examined in all 10 witnesses in support of the prosecution case. Though PW4 Ashok was styled as an eyewitness his evidence reveals that when he reached the spot, Rajendra was lying in unconscious condition and his father PW1 Chunnilal, injured brother Nitesh, mother and sister were present on the spot. PW4 Ashok and so also panch witnesses PW6 and PW7 Sahadeo and Sanjay pertaining about seizure of alleged weapon having not supported the prosecution were cross examined on behalf of the prosecution. Thus their evidence does not seem to be helpful to the prosecution. The evidence of PW5 Rajesh, panch for the spot panchanama reveals that the spot of incident shown by PW1 Chunnilal was 10 ft. away from the house of complainant. Thus the evidence of all the said four witnesses is not helpful to the prosecution for establishing the case against the respondents. Even the evidence of Dr. Dixit PW8 who had performed the post mortem, is also not helpful to the prosecution for establishing nexus of the respondents with the offences committed. The same is the case regarding the evidence of PW9 who produced the blood sample from the hospital which was seized by the investigating officer. Even the case regarding the evidence of PI Shri Gopnarayan PW10 is not 4 different as his evidence relates to the investigation effected by him and about deceased API Govinde having arrested the respondents and respondent no.1 having produced cricket bat, jercy and full-pant. Now considering the reasons given by the learned trial Judge for not accepting the evidence of PW1, his wife Pramila PW2 and his son Nitesh, after taking into consideration the answers given by them in the cross-examination the same cannot be said to be either perverse or erroneous or not based upon the record. The reasoning recorded in paragraph nos.41 to 46 of the judgment reveals that the learned trial Judge found that evidence of the said witnesses was full of contradictions, omissions and improvements. He has duly taken into consideration the fact of PW1 having not lodged report of the incident for 5 days against any of the accused in spite of Rajendra being admitted in the hospital immediately after the incident. Nobody else has also lodged the report of the incident with the Police. The prosecution did not bring on record the case papers from CRIMS Hospital. Even the Medical Officers either at Yeotmal or from Nagpur had also not sent any intimation to the Police in spite of Rajendra was brought to the Hospital with injuries on his person. Thus investigation did not commence up-till 15.11.2007. The trial Judge has also taken into 5 consideration of PW1 having claimed of having seen bat lying on the spot and the ultimately some bat being seized by the Police on 19.11.2007. All three witnesses stated that there was no enmity in between them and the accused. There was delay of 19 days in recording the statements of witnesses. Thus considering the evidence adduced by the prosecution , the view taken by the learned trial Judge is a probable view. In view of the same, we are of the considered opinion of no case being made out for granting leave to prefer an appeal as sought by the appellant/State. Hence, we dismiss the application and consequently the appeal. JUDGE JUDGE Gulande