1 cri-appln-5847-10 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 5847 OF 2010 The State of Maharashtra (Through Jejuri Police Station) .. Applicant Vs. 1. Vitthal Chandrakant Bhagat 2. Nathu Baban Bhagat .. Respondents (Org. Accd.Nos.1 and 2) Mrs. A. S. Pai, APP for applicant-State. CORAM: B. H. MARLAPALLE & U. D. SALVI, JJ. RESERVED ON : JANJUARY 14, 2011 PRONOUNCED ON : JANUARY 18, 2011 P.C. 1. Heard Mrs. Pai, the learned APP for the applicant – State. 2. The State of Maharashtra has filed this application for seeking 2 cri-appln-5847-10 leave to appeal under Section 378 (3) of Cr. P. C. against the order of acquittal dated 18/6/2009 passed by the learned Additional Sessions Judge at Pune in Sessions Case No. 324 of 2008. Both the accused came to be tried for the offence punishable under Section 302 read with Section 34 of IPC and the trial court held that the prosecution could not prove its case beyond reasonable doubt against the accused. 3. As per the prosecution, Sukhdeo Bhagat, the husband of PW 2 – Kamal, had left home at about 5 p.m. on 17/1/2008 with PW 6 – Raghunath Gaikwad for village Pise. They reached village Pise and met PW 5 – Rajnikant Mulik and consumed liquor by the side of the house of PW 5. Both the accused reached the spot and took Sukhdeo with them under the pretext of an invitation for dinner at village Supa. Sukhdeo and the accused left on a motorbike which was driven by accused no.2. On the next day, the dead body of Sukhdeo was found in the land of Prakash Mulik (PW 1), who lodged his report at Exh. 36. He had noticed that the dead body was crushed with stones. The prosecution examined in all 13 witnesses and its case was based purely on circumstantial evidence. The accused no. 1 was arrested on 19/1/2008, whereas accused no.2 was arrested on 20/1/2008. The clothes of the accused were sent for chemical 3 cri-appln-5847-10 analysis and the identification of blood group remained inconclusive. PW 9 – Rajendra Thorat, who was the panch witness for the recovery of vehicle at the instance of accused no.2, turned hostile and the clothes recovered from the person of accused no.2 did not have any blood stains. The only ground that was advanced by the prosecution in support of its case was last seen together and in support of that, it relied upon the evidence of PW 5 – Rajnikant Mulik and PW 6 – Raghunath Gaikwad. Coming to the evidence of PW 6 – Raghunath Gaikwad, it was revealed that his statement was recorded by the police for the first time on 20/1/2008, despite the fact that he was available at the spot, where the dead body was found on 18/1/2008 and his statement was shown to have been recorded on 18/1/2008 itself. Initially, PW 6 was detained by the police as a suspected accused and he was kept in custody from 18/1/2008 to 20/1/2008. These circumstances created a doubt about the statement recorded by the police on 20/1/2008 and claimed to have been recorded on 18/1/2008. The IO could not explain as to why the statement was recorded on 20/1/2008 when the witness was in custody for three days and at the same time, why it was shown to have been recorded on 18/1/2008. PW 5 – Rajnikant Mulik was another witness, who claimed that the accused had 4 cri-appln-5847-10 taken the deceased on their motorbike to have meals at village Supa. However, in his examination before the court, he contradicted PW 6 – Raghunath Gaikwad on the point that both of them were together when the accused had taken away the deceased. Even if it was the case of the prosecution that the accused had taken the deceased on their motorbike on the night of 17/1/2008 to village Supa, there was nothing further found to connect the accused with the homicidal death of Sukhdeo. There was no motive which would connect the accused in causing the death of Sukhdeo. PW 2 – Kamal, in her depositions before the court, stated that the accused were friends of the deceased and they used to often visit her house. There was no enmity or any dispute between the accused and the deceased. The next circumstance relied upon by the prosecution was the injury sustained by accused no.2 on his hand. As per the prosecution, six stones were recovered from the place of offence and which were alleged to be used in committing the crime. These stones were of the size which could be held in the palm and, therefore, hitting by these stones to the deceased would not cause any injury to the accused if they were really involved in the crime, more so, when PW 2 – Kamal consistently maintained that she had no suspicion against the accused. 5 cri-appln-5847-10 4. The prosecution case based on the circumstantial evidence was further sought to be proved by the evidence of PW 8 – Dagadu Chavan and more particularly on the ground that he had claimed to have seen the accused and the deceased fighting on the road. At the request of Mrs. Pai, we called the R & P from the trial court and we have gone through the oral depositions of the said witness. He claimed that he was 80 years of age and resident of Rajuri, Taluka – Purandar. He knew the deceased as well as the accused as being the residents of the same village. He stated that on the date of the incident, he had left for village Supa on the vehicle of Gangadhar Bhagat and at about 7 to 7.30 p.m., after purchasing some articles from the Bazar, he was returning to his village from Supa. When he came near village Pise, he had noticed a quarrel going on between the accused and deceased – Sukhdeo. All the three were seen by him in the headlights of vehicle. He, therefore, went near the quarreling party and noticed that accused – Nathu was holding stone in his hands and he was threatened not to wait there. Thereafter, he went away and in the morning he came to know that Sukhdeo was murdered. He admitted in his cross- examination that police recorded his statement for the first time on 26/1/2008 and he knew PW 6 – Raghunath Gaikwad. He had attended the funeral of Sukhdeo and did not notice that accused Vitthal was not present 6 cri-appln-5847-10 for the funeral. When he had reached the spot, where the dead body was found, police were present but he did not inform them that he had seen the deceased in the company of the accused and that they were quarreling with each other. He admitted that during the 8 days when he did not make any statement, the police were visiting the village to enquire about the incident and he had not supplied any information to the police. He stated in his cross-examination that on 25/1/2008 he received a call from the police station and, therefore, he went to the police station on 26/1/2008, when his statement was recorded. He admitted that he was working as a part of Suraksha Dal formed by the police station and he used to often visit the police station. In his cross-examination he further admitted that on 17/1/2008 it was not a Bazar day of village Supa. He also admitted that there used to be traffic till 9.30 p.m. on Supa – Rajuri Road. In view of his close association with the police station and the fact that he did not give any information to the police during the intervening one week, the trial court discarded PW 8 as unreliable witness and labelled him as a got up witness at the instance of the police. He admitted in his cross examination that as a member of the Suraksha Dal, he used to talk to the police on day to day basis and if that be so there was no reason as to why he did not disclose to the police, for a period of one week, that he had seen the 7 cri-appln-5847-10 deceased quarreling with the accused in the night of 17/1/2008. We have no doubt in our mind that the trial court was justified in discarding the evidence of this witness. Thus the prosecution could not complete the chain of its circumstantial evidence and failed to prove its case beyond reasonable doubt against the accused so as to hold that they had committed the murder of Sukhdeo. 5. Hence, leave to appeal is refused and the application is rejected. (U. D. SALVI,J.) (B. H. MARLAPALLE, J.)