1 cria252.94 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 252 OF 1994 The State of Maharashtra ..APPELLANT -VERSUS- 1. Natha Pandhari Raut, Aged : 60 years, Occ : Agriculture, R/o Kanadi-Mali, Tq. Kaij, Dist. Beed. 2. Youraj Pandhari Raut Aged : 50 years, Occ : Agriculture, R/o Kanadi-Mali, Tq. Kaij, Dist. Beed. 3. Mahadeo Natha Raut Aged : 36 years, Occ : Agriculture, R/o Kanadi-Mali, Tq. Kaij, Dist. Beed. 4. Laxman Youraj Raut Aged : 25 years, Occ : Agriculture, R/o Kanadi-Mali, Tq. Kaij, Dist. Beed. 5. Ashruba Dhondiba Raut, Aged : 32 years, Occ : Agriculture, R/o Kanadi-Mali, Tq. Kaij, Dist. Beed. 6. Arun Annasaheb Raut Aged : 25 years, Occ : Agriculture, R/o Kanadi-Mali, Tq. Kaij, Dist. Beed. 7. Machindra Maruti Raut Aged : 27 years, Occ : Agriculture, R/o Kanadi-Mali, Tq. Kaij, Dist. Beed. 8. Annasaheb Pandhari Raut Aged : 55 years, Occ : Agriculture, R/o Kanadi-Mali, Tq. Kaij, Dist. Beed. 9. Ashruba Satwa Birkad Aged : 30 years, Occ : Agriculture, R/o Kanadi-Mali, Tq. Kaij, Dist. Beed. 2 cria252.94 10. Haribhau Achyut Raut Aged : 25 years, Occ : Agriculture, R/o Kanadi-Mali, Tq. Kaij, Dist. Beed. 11. Kalyanrao Kedari Raut Aged : 38 years, Occ : Agriculture, R/o Kanadi-Mali, Tq. Kaij, Dist. Beed. 12. Kisan Dagdu Raut Aged : 25 years, Occ : Agriculture, R/o Kanadi-Mali, Tq. Kaij, Dist. Beed. 13. Shrimant Narsuba Raut Aged : 28 years, Occ : Agriculture, R/o Kanadi-Mali, Tq. Kaij, Dist. Beed. (Appeal abated as against respondent nos. 2 and 10 by order dated 05.12.2006) ..RESPONDENTS ..... Shri V.D. Godbharale, A.P.P. for the appellant. Shri M.M. Patil Beedkar and Shri S.P. Katneshwarkar, Advocates for respondent nos. 1, 3 to 9, 11 to 13- Absent. Appeal abated as against respondent nos. 2 and 10. ..... CORAM : A.H. JOSHI AND A.M. THIPSAY , JJ. DATE : 8th November, 2011 JUDGMENT : (PER A. M. THIPSAY, J) 1. This is an appeal filed by the State of Maharashtra against the judgment and order passed by the Additional Sessions Judge, Ambajogai, in Sessions Case No. 23 of 1989 before him, whereby he acquitted the respondents, who were accused in the said case. The allegation against the respondents was that they ha d committed the offences punishable under Sections 143, 148, 302 read with Section 149 of the Indian Penal Code. 2. The prosecution case before the trial Court was that the respondents 3 cria252.94 (Hereinafter referred to as "the accused") were the residents of village Kandi- Mali. Suresh Ashruba Raut (deceased) was also a resident of the same village. He used to reside with his brothers and parents. The family of Suresh Raut was holding some agricultural land in the said village and Suresh Raut had also set-up a tea stall near the S.T. stand of the said village. That, the accused no. 6-Arun Raut was owing some amount to Santosh Raut for tea and other articles purchased by him on credit from stall of Suresh Raut. Because of non- payment of dues, a quarrel had taken place between Suresh Raut and accused no.6-Arun Raut. The accused persons had, therefore, threatened Suresh Raut. That, in the early morning of 5th January, 1989, Suresh Raut had gone to the bazar at Salegaon. The accused persons had gone there and brought him to Kandi-Mali. Suresh Raut was taken to the flour-mill of accused no.8- Annasaheb Raut-and there he was assaulted by weapons like axe, knives and sticks etc., as a result of which, he sustained serious bleeding injuries. He was kept in a bullock cart and carried to the Chavdi of the village. On hearing the news of assault on him, the family members of Suresh came to the Chavdi. Suresh was lying there and was offered water. Ashruba Raut, the father of Suresh Raut, took him to the Police Station and lodged a report. Suresh Raut was sent to the Primary Health Center, Kaij for treatment, but on examination, the Medical Officer declared him to be dead. On the same day at about 19.30 hours, the First Information Report was lodged at Kaij Police Station in respect of the incident. Thereafter, investigation commenced. Inquest panchanama, spot panchanama, etc were drawn. The accused persons were arrested and on completion of investigation, charge sheet was filed, pursuant to which, the accused were tried and acquitted. 3. The prosecution examined 15 witnesses during the trial. Out of them, Changunabai Bankar (PW-11), Raghunath Raut (PW-4), Lahu Raut (PW-8) are 4 cria252.94 said to be the eye witnesses to the incident. Changunabai (PW-11) did not support the case of the prosecution and was declared to be hostile. Nothing which would favour the prosecution could be elicited from her. 4. The trial Court did not believe the other eye witnesses. As regards Ragunath Raut (PW-4), trial Court observed, that though he claimed to be the eye witness, he had not disclosed this fact to the police till his statement was recorded-i.e. till 10th January, 1989. Trial Court observed that the same witness had acted as panch in respect of the seizure of note book (Exhibit-30), and that, this seizure had taken place on 6th January, 1989. Trial Court observed, that at the time of this recovery, Raghunath had all the opportunity to tell the fact of his being an eye witness to P.S.I. Ramrao Patil, who had effected the said recovery/seizure, under a panchanama. Trial Court also observed that he had given evasive and irrelevant answers, when he was subjected to the cross examination on the relevant aspects. 5. As regards Lahu Raut (PW-8), trial Court observed that his claim was that he had seen the actual assault on Suresh and that, the assault had continued even after Suresh had become unconscious and fallen down on the ground. The witness also claimed, that he had told the same to the father of Suresh Raut. His statement was, however, recorded by the Police on 10th January, 1989. As this witness had stated that while the incident of assault was going on, he had shouted by calling names of the accused persons and telling them not to beat Suresh, the trial Court observed, that when he had so much courage, there was no impediment in his way to report the matter to the Police when they had come in the village on the next day i.e. 6th January, 1989. 6. Thus, in short, primarily because of delayed disclosure to the 5 cria252.94 Investigating Agency of their having seen the incident, these two supposed eye-witnesses were not believed by the trial Court. 7. We have gone through the entire judgment delivered by the learned Additional Sessions Judge. The learned Judge took into consideration all the evidence, that was adduced before him. He was of the opinion that the eye witnesses could not be termed as reliable and that, there were several infirmities in the prosecution case, rendering it unworthy of belief. He found that even the copy of the First Information Report was forwarded to the Judicial Magistrate, First Class on 9th January, 1989 i.e. after four days. This delay was also not explained. 8. There was certain other evidence in the form of seizure of incriminating articles, such as blood stains cloths, handle of axe etc., but the learned Additional Sessions Judge observed that, that evidence was not convincing, and further that, when direct evidence was found to be unreliable, the evidence of recoveries of weapon and articles could not be relied upon. 9. The learned Judge concluded that the prosecution has failed to prove the case beyond reasonable doubt, and passed the order of acquittal. 10. Mr. Godbharale, learned Additional Public Prosecutor was unable to submit before the Court, as to how the appreciation of evidence as done by the learned Additional Sessions Judge, is improper or suffering from any error, or was not in accordance with law. 11. It is well settled that while dealing with appeals against acquittal, even where two views in respect of the evidence are possible, the Appellate Court 6 cria252.94 should not interfere with the view taken by the trial Court, unless the same would appear to be manifestly incorrect. It is well settled that if the view taken by the trial Court is based upon consideration of the entire evidence adduced before it and is a possible view of the matter, then the Appellate Court should not interfere with the order of acquittal even if a different view of the evidence would have been possible. 12. We have considered the evidence adduced during the trial. We have considered the reasons which have weighed with the trial Court, in disbelieving the supposed eye witnesses, and other evidence. In our opinion, the view of the matter, as taken by the trial Court and the appreciation of evidence as done by it, can not be said to be suffering from any error or infirmity. In any case, the view taken by the trial Court is a possible view of the matter. 13. In the circumstances, no case for interfering with the order of acquittal, is made out. 14. Appeal is dismissed. (A.M. THIPSAY, J.) ( A.H. JOSHI, J.) ga s/cria252.94