:1: 4.appln.555.11 ata IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.555 of 2011 The State of Maharashtra ..Applicant Vs. Shabana Nafis Shaikh and Ors ..Respondents Dr. F. R. Shaikh, APP for State. CORAM :- V. M. KANADE & A. M. THIPSAY, JJ. DATE :- SEPTEMBER 13, 2011. P.C.: This is an application filed by the State of Maharashtra, seeking leave under Section 378(3) of the Code of Criminal Procedure, to file appeal against the judgment and order of acquittal passed by the Additional Sessions Judge,Thane, in Sessions Case No.17 of 2008 before him. The respondents who were the accused in the said case, were prosecuted on the charge of having committed offences punishable under Sections 120B IPC, 302 IPC, 364 IPC, 404 IPC, & 201 IPC r/w 34 of Indian Penal Code. 2 We have heard Mr. Shaikh, learned APP for State. We have gone through the grounds, on which the leave is sought. We have been taken through the copies of notes of evidence, that are annexed to the :2: 4.appln.555.11 application, and we have also been taken through the impugned judgment and order. 3 The prosecution case before the Trial Court was that one Mr. Mohammod Asad and one Shadab, who were maternal uncle and uncle of the first informant Nadim Shaikh, respectively, did not return back to their house on 22.01.2007. The missing report in that regard was lodged by the said Nadim Shaikh on 23.01.2007. On 25.01.2007, again, report was lodged with the Mumbra Police-station. The missing case bearing No. 18 of 2007 was registered at the said Police-station. Enquiries were made by the first informant for tracing the said Asad and Shadab. As a result of the enquiries made by the first informant, he suspected the Respondent No.2-Guddu and others, and on his statements made before the Police, a case in respect of an offence punishable under Section 363 of the Indian Penal Code was registered. In the course of investigation, it was revealed that there had been a criminal conspiracy to commit murder of the said Asad and Shadab. Two dead bodies, which were said to be of the said Asad and Shadad, were found during the investigation. The respondents were believed to be the culprits. As such, they were arrested and prosecuted as aforesaid. 4 During the trial, prosecution examined 27 witnesses. The learned Additional Sessions Judge came to the conclusion that the prosecution :3: 4.appln.555.11 had failed to prove the guilt of the accused persons and acquitted them of the said offence. 5 As per the case of the prosecution, there was one eye witness- Gungya, who was deaf and dumb. He was, however,not examined as a witness during the trial. 6 Additionally, the prosecution had relied on certain circumstances, which the learned Additional Sessions Judge held to be not proved. 7 The substance of the reasoning of the learned Additional Sessions Judge is found in paras 41, 42, 43 and 44 of the impugned judgment. The learned Additional Sessions Judge observed that the said Gungya was not examined and the expert who knew the language of the deaf and dumb and who could ascertain, what a deaf and dumb person wanted to convey, was also not examined though his assistance had been taken by the investigating agency during the investigation. The learned Judge also observed that the investigating agencies had taken video shooting in respect of the demonstrations given by the said Gungya with the help of the expert, as well as when the bodies supposed to be of the Asad and Shadab were exhumed, but the relevant cassettes were not produced before the Court. 8 The learned Judge also observed that the wives of the deceased persons, who could have been best witnesses to depose in respect of the :4: 4.appln.555.11 alleged enmity between deceased and applicant-accused, were not examined. 9 The learned Judge also observed that in fact, the identification of the dead bodies itself could not be relied upon and that the identity thereof had not been proved. It was observed that the dead bodies were highly discomposed and the limbs of the dead bodies were separated. 10 It was also observed that, that the death was homicidal was also not satisfactorily established. 11 The learned APP did not attempt to controvert these observations and could not point out as to how they were factually and legally incorrect. 12 Upon considering the impugned judgment and evidence adduced before the Trial Court, it is not possible to hold that the judgment and order passed by the Additional Sessions Judge suffers from any factual or legal infirmity, requiring reassessment or reevaluation of the evidence, by us. At any rate, the view of the matter, as taken by the Trial Court , is a possible view. 13 Leave is, therefore, refused. The application is rejected. ( A. M. THIPSAY, J ) ( V. M. KANADE, J.)