(-#-) MGN IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, CRIMINAL JURISDICTION CRIMINAL APPLICATION NO.1762 OF 2007 The State of Maharashtra )..Appellant Versus 1.Jafar Amir Khan & Ors. ...Respondents. Mr. P.S. Hingorani, APP for State. Mr. C.K. Pendse with Ms. Jyoti Chavan, for Respondent Nos.4. CORAM: F.I. CORAM: F.I. CORAM: F.I. REBELLO REBELLO REBELLO & K.U.CHANDIWAL, JJ. K.U.CHANDIWAL, JJ. K.U.CHANDIWAL, JJ. DATED: 22nd April,2008 DATED: 22nd April,2008 DATED: 22nd April,2008 P.C. P.C. P.C. . This is an application for leave to Appeal against the order of 8th Ad hoc Additional Sessions Judge, City Civil Court, Sewree, Mumbai, dated 13th March, 2007. The respondents herein were acquitted of the offence punishable under Section 302 read with 34 and Section 201 read with 34 of the Indian Penal Code. As the respondent No.2 could not be served the learned A.P.P. did not press the application against the respondent No.2. 2. The learned Judge considering the evidence on record gave benefit of doubt to all the respondents. The evidence on behalf of the prosecution apart from evidence of P.W.1, P.W.9, P.W.12 who had seen the deceased leaving the house is of P.W.2-Ramesh and P.W.5-Yunus. 3. In so far as these witnesses P.W.2 and P.W.5 are concerned regarding identification parade, the learned Judge noted that the incident in question is of 14th April, 2006. The Accused Nos. 1 and 2 were arrested on 14th April, 2006 and Accused Nos. 3 and 4 were arrested on 17th April, 2006. The identification parade was only held on 11th July, 2006. The learned Judge also noted that the prosecution evidence regarding recovery shows that the accused were taken outside the police station on 17th April, 2006, 18th April, 2006, 20th April, 2006 and 21st April, 2006. Apart from that from the evidence of P.W.5 it was clear that he was knowing Accused No.1-Jafer as well as deceased Abidali. The learned Judge wondered why in these circumstances P.W.5 was also an identifying witness for accused No.1-Jafer. Considering the evidence the Court held that the reliance could not be placed on the identification done by these witnesses. In our opinion this was the view possible and as such we cannot fault the reasoning of the learned Judge. 5. In so far as the recovery evidence is concerned, the learned Judge noted that the accused Nos. 1 and 2 were arrested on 16th April, 2006 and the alleged common disclosure was on 17th April, 2006 and the recovery was made in the house of Accused No.1-Jafer only. Recovery at the instance of Accused No.4-Rais was on 20th April, 2006, for which reliance is placed on evidence of P.W.10-Kadirwel and P.W.15 I.O. Borse. The Court noted that accused No.4 was arrested on 17th April, 2006 and the recovery of clothes is on 20th April, 2006 and the C.A. Report Exhibit 54 was not helpful. In so far as Accused No.3 is concerned, the Court noted that the allegation that he alleged to have pointed out the handcart from where he purchased two suras which were the weapons used for assault is supported by the evidence of P.W.8 and P.W.10 I.O. Borse. Owner of the Handcart was not examined as to whether the two suras recovered at the instance of Accused No.2 are the same or not. There was no corroborative evidence. The Court held that the recovery no-way connects Accused No.3-Shankar in any manner. 6. The Court then dealt with recovery of suras at the instance of accused No.2-Yogesh. The Court noted that the accused No.2 was arrested on 16th April, 2006 and when interrogated expressed his willingness to produce the clothes on 17th April, 2006. However, said nothing about the suras which the Court found improbable and unnatural. The learned Judge observed that if the accused was willing to show the clothes there seems to be no reason why the weapons of assault were not referred to when the accused was interrogated. The Court, therefore, held that no reliance can be placed on the recovery in question at the instance of accused No.2-Yogesh under Exhibits 26 and 27. 7. In so far as the C.A. Report is concerned the Court noted that the clothes were attached between 17th April, 2006 and 20th April, 2006. The clothes of the deceased were seized on 15th April, 2006 and the articles were sent to Forensic Science Laboratory by letter dated 28th June, 2006. The inordinate delay the Court noted was not explained. The C.A. Report shows that the blood group of deceased Abidali inconclusive. But the blood stains of "O" group on the clothes of the deceased Abidali. The Court held that the evidence of P.W.2 and P.W.5 on the basis of last seen is a weak piece of evidence and considering the recoveries itself could not be relied upon and the unexplained delay had affected the evidentiary value of the C.A. Report. 8. The injuries were found on accused No.2-Yogesh and the evidence of P.W.6 Dr. Ganesh was sought to be relied upon. The Court noted that in cross examination it had come that there was already a bandage over the index finger injury of accused No.2-Yogesh. The Court then noted that the Accused No.2 was arrested on 16th April, 2006 and arrest panchanama prepared. If there were injuries on the person of accused No.2-Yogesh it ought to have been mentioned in the arrest panchanama. That has not been brought on record and considering that the Court held that no reliance can be placed on the certificate of injuries. . For the various reasons the Court held that though the prosecution had proved the ingredients of Section 302 of I.P.C. it has failed to prove beyond reasonable doubt that the accused Nos. 1 to 4 were responsible for committing the same. 9. After considering the evidence and findings recorded by the learned trial Judge we are of the opinion that considering the evidence the prosecution was unable to establish beyond reasonable doubt the guilt of the accused. In the light of the above, in our opinion, no case is made out for grant of leave to Appeal and consequently Application rejected. (K.U.CHANDIWAL, J.) (K.U.CHANDIWAL, J.) (K.U.CHANDIWAL, J.) (F.I.REBELLO, J.) (F.I.REBELLO, J.) (F.I.REBELLO, J.)