1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO.1567 OF 2009 The State of Maharashtra ... APPLICANT VERSUS Ankush s/o Rambhau Mandlik & anr. ... RESPONDENTS ..... Mrs. R.R. Mane, A.P.P. for the applicant/State ..... CORAM : NARESH H. PATIL AND SHRIHARI P. DAVARE, JJ. DATED : 27TH AUGUST, 2009. Date of reserving order : 20/8/2009 Date of pronouncing order : 27/8/2009 ORAL ORDER (PER DAVARE, J.): 1. Perused. Heard learned A.P.P. for the applicant. 2. By the present application, the applicant/State has prayed for leave under Section 378(4) of the Code of Criminal Procedure to file appeal appeal against the judgment and order of acquittal, passed by learned Sessions Judge, Beed in Sessions Case No.44/2008 on 31.1.2009, acquitting the accused Nos.1 and 2 therein for the charges under Sections 364, 302, 201 and 120-B 2 read with Section 34 of the Indian Penal Code levelled against them. 3. The case put forth by the prosecution in nutshell is that deceased Vilas @ Raju was having illicit relations with the sister of accused No.1, who was divorcee and the said relations were not approved by the family members of the said girl. Hence, relations between the said two families were strained, but same were settled by the private negotiations through the villagers. However, the accused No.1 hatched a conspiracy to eliminate said Vilas on account of the said relations with his sister. Accordingly, on 22.12.2007 when deceased along with P.W.2 and P.W.3 was taking food in the evening time, the accused No.1 along with his associaties arrived there and dragged him into Maruti Van forcibly and thereafter fled away. P.W.2 and P.W.3 tried to obstruct, but they could not succeed and they simply noticed the registration number of the said vehicle as MH-12/0471. However, they reported the incident to the parents of deceased. Hence, preliminary enquiries were made and complaint was filed with Georai Police Station, involving accused No.1 as the abductor along with his associates and Police personnel regitered the F.I.R. on 23.12.2007 as C.R. No. 234/2007 under Section 364 read with Section 34 of the Indian penal Code. 3 4. During the course of investigation, accused No.1 was arrested on 25.12.2007 at Pune and while he was being brought to Georai Police Station, he allegedly made confessional statement to show the dead body of deceased Vilas and accordingly, dead body of said victim was recovered from village Karanjwan. Same was in decomposed state with head injury. P.W.1 identified the said body. Doctor was called to the spot, who performed the post mortem. Accordingly, the offence was converted into Section 302 of the Indian Penal Code. 5. Thereafter on 26.12.2007 a wooden log was recovered at the instance of accused No.1. The Clothes of accused No.1 were also seized as well as the vehicle allegedly used in commission of the offence was also recovered, which bore a dent on the rear side window thereof. Despite efforts, the other aforesaid accused were not traced out. Hence, charge sheet was filed against accused Nos.1 and 2 after completion of the investigation. The accused Nos.1 and 2 were charged for the offences under Sections 302, 201, 364 and 120-B read with Section 34 of the Indian Penal Code and they were tried thereunder, but the learned Sessions Judge, Beed acquitted them in Sessions Case No.44/2008 by judgment and order dated 31.1.2009. Being dissatisfied and aggrieved by the said judgment and order, the applicant/State has preferred the present 4 application seeking leave under Section 378(4) of the Code of Criminal Procedure to file the appeal. 6. We have perused the oral, documentary and medical evidence as well as perused the judgment and order dated 31.1.2009 passed by the learned Sessions Judge, Beed. Moreover, we have gone through the record and proceedings which was made available to us. To substantiate the charges levelled against the accused Nos.1 and 2 herein, the prosecution has examined inasmuch as 10 witnesses. However, since there was no iota of evidence against accused No.2, the learned trial Judge rightly dispensed with recording of statement under Section 313 of the Code of Criminal Procedure and acquitted him from the charges levelled against him and no interference therein is called for. 7. As regards the case of prosecution against accused No.1, it is based on circumstantial evidence. The evidence of P.W. 2 was claimed to be eye witness account and he was subjected to cross-examination, but even he was not able to give the exact description of the glass of the vehicle from where he allegedly saw accused No.1 sitting inside the van and, therefore, his testimony comes under the cloud of suspicion and the learned trial Judge has rightly discarded the same. 5 8. Besides, as regards the recovery/ discovery of the wooden log, the observations made by learned trial Judge that statement of accused No.1 under Section 27 of the Evidence Act was not recorded in writing and discovery of wooden log at the instance of accused No.1 is not credible, are not out of place. Moreover, the theory of prosecution that accused No.1 showed the dead body of deceased and it was recovered at the instance of accused No.1 was not accepted by the learned trial Judge and infirmities and discrepancies therein as discussed by learned trial Judge apparently diminishes the credibility of the said theory. 9. Apart from that, there was delay in sending the articles to C.A. and prosecution failed to explain the said delay and the C.A. report (Exhs.72 & 73) also come under the doldrums and observations made in that respect by learned trial Judge that suspicion is created to connect the accused No.1 with the alleged crime, do not warrant any interference. 10. In the circumstances, the leaned trial Judge has rightly acquitted the accused Nos.1 and 2 from the charges levelled against them under Sections 364, 302, 201 and 120-B read with Section 34 of the Indian Penal Code in Sessions Case No. 44/2008 by the judgment and order dated 30.1.2009 and no 6 interference therein is called for at the appellate stage and, therefore, leave to appeal against the judgment and order of acquittal sought by the applicant/State under Section 378(4) of the Code of Criminal Procedure stands refused. (SHRIHARI P. DAVARE, J.) (NARESH H. PATIL, J.) fmp/cri1567.09