IN THE HIGH COURT OF JUDICATURE AT BOMBAY. CRIMINAL APPEALLTE JURISDICTION. CRIMINAL APPEAL NO. 698 OF 1997 The State of Maharashtra ..... .... Appellant. (Orig.complt.) V/s 1. Abraham Anthony Fernandis & Ors... .... Respondents. (Orig.Accd.Nos.1 to 3.) Mr.A.M. Shringarpure, APP for the State. None for the respondents. CORAM: V.G. PALSHIKAR AND R.C. CHAVAN, JJ. 10 th August, 2005. ORAL JUDGMENT: (Per Palshikar, J.) Being aggrieved by the judgment and order of acquittal passed by the learned III Additional Sessions Judge, Thane, in Sessions Case No.589 of 1996 on 7.7.1997 the State-appellant has preferred this appeal on the grounds mentioned in the memo of appeal as also verbally canvassed before us. 2. With the assistance of the learned Public Prosecutor for the State we have scrutinized the entire evidence on record and reappreciated the same. 3. The prosecution case stated briefly is that the accused persons and 1 the victim knew each other as accused No.1 Abraham Fernandis had a liquor den and the accused along with others and the victim used to visit that den for consumption of liquor. There were several quarrels between them and the victim admits to previous enmity. 4. In the night of 9.5.1995 victim Ram Tatale had gone from the house of Pushpa for urination besides the Nala abutting `Kathada'. The present accused persons were present there. Accused No.1 had a stick and a battery in his hand. Accused No.3 had a sword and accused No.2 iron bar and also a stick and absconding accused No.4 also iron bar and stick. Apprehending beating at the hands of the accused Ram tried to flee from that place, but the accused chased him and were successful in having Ram's hold in front of Pushpa's house. There they severally assaulted on all parts of Ram by means of weapons in their hands. P.W.4 Pushpa had seen her sister's husband being assaulted by 4/5 persons including accused No.1 who declared that Ram be lifted and thrown on railway track. Accordingly, Ram was actually lifted by the assailants, who took him towards side of railway track. Neither Pushpa nor anybody from her family went out of the house of the fear. In the next morning at about 6.00 a.m. Pushpa's younger sister viz. Soni Mohan More had gone to bring milk and saw for himself that Ram was lying besides the railway track. She told this to her sister Sugandha (Ram's wife) who met her near Pushpa's house when both the sisters were coming to Pushpa's house. The three sisters and their family members went on the side and saw that some portion of Ram's left leg, from below the palm was cut. There was also incised wound on head. Sugandha immediately called out her mother 2 Yashodabai and then railway police and two porter reached there. They brought Ram on stretcher in a train to Thane where from Ram was shifted in Civil hospital. 5. At about 10.00 a.m. Sugandha came to the house of Pushpa with police and enquired with her about the incident who (Pushpa) narrated it as about and also had shown the place of the incident. The railway police carried Pushpa to Wagle Estate Police Station where her above stated version was reduced into writing. Upon the basis of that, C.R.No.I-99/95 for offence punishable u/ss.307, 147, 148 came to be registered by lady PSI Smt.G.G.Pail (Exh.45). 6. On the basis of above information investigation was conducted, accused persons were arrested, one of them was absconding therefore three remaining were prosecuted under section 307 read with sections 148 and 149. The prosecution examined 10 witnesses to prove its case and the learned trial Judge on appreciation of this entire evidence came to the conclusion that the prosecution has failed to prove its case that it was an assault by the accused persons which was responsible for the injuries on the person of the victim. The learned trial Judge proceeded to acquit the accused persons as aforesaid. It is this order which is impugn;ed in this appeal on the grounds mentioned in the memo of appeal as also verbally canvassed before us. In nut shell main contention of the learned public prosecutor is that the evidence of victim Ram was corroborated on all material particulars by Pushpa and his wife Sugandha and though they were not eye witnesses they were present at the scene of offence immediately 3 after the assault and therefore mere corroboration was enough to accept the solitary eye witness account of the victim. However P.W.1-Pushpa, sister- in- law of the victim had seen the assault but has not named any one. The wife of the victim came on the scene of offence when body was thrown on railway track. There testimony cannot therefore be of any use either in contradiction or for corroboration as it does not reveal anything substantial. 7. The learned trial Judge appreciated the entire evidence and after analysis of the evidence of P.W.3-Ram Tatale victim has come to the conclusion that it is very unsafe to rely upon the testimony of this witness. He is a solitary witness and admittedly in the deposition of this witness he has stated that several other persons were present and awake when the assault went on for 40/45 minutes. The witness has given description of the weapons held by each of the accused. If those weapons were used in relation to physical assault it is impossible that a person would survive after thrashing of 45 minutes. The witness has stated that accused Mohan Rathod was armed with sword but the medical evidence does not disclose any sword injury on the person of victim. 8. The prosecution could have examined the neighboring persons who must have witnessed the occasion. The possibility of others who were inimical towards the victim is candidly admitted by the victim. Beating him and throwing him near the railway track is not eliminated. The possibility of victim having been assaulted near the railway track is also not disputed. The victim admits in his deposition that he ran away merely on the apprehension of assault by the accused persons. He alleges that he fell in front of the 4 house of Pushpa his sister- in-law and then he was thrashed. At the same time he also admits that there were several people around and yet none is examined probably because the incident did not occur at that place. 9. The victim admits to criminal record, he admits to have been in jail on 3/4 occasions, he admits of the enmity with others than the accused persons. The prosecution has failed to lead any evidence to eliminate the possibility of the assault having taken place by persons other than accused named and prosecuted. The circumstantial evidence as led by the prosecution in the circumstances is grossly inadequate. 10. The learned trial Judge has well marshaled the evidence on record and has given cogent reasons for coming to the conclusion that the accused were not guilty. His findings are based on solid evidence and we have no hesitation in affirming the same. We have given our reasons for upholding the acquittal. We have also affirmed the findings recorded by the learned trial Judge. In the circumstances no further elaboration is necessary. In the result the appeal fails and is dismissed. Accused persons are already on bail. Their bail bonds stand canceled. 5