-:1:- IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPLICATION NO. 153 OF 2007 APPLICATION NO. 153 OF 2007 APPLICATION NO. 153 OF 2007 WITH WITH WITH CRIMINAL CRIMINAL CRIMINAL APPLICATION NO. 818 OF 2007 APPLICATION NO. 818 OF 2007 APPLICATION NO. 818 OF 2007 The State of Maharashtra. ... Applicant. V/s. Rajkumar Chandrakant Mhatre & Ors. ... Respondents. Mr. P.S. Hingorani, A.P.P. for the State. Mr. S.D. Dharmadhikari for Respondents 3 and 4. Mr. Ganesh Gole for Respondents 8 to 11. Mr. Nitin Sejpal and Ms. Pooja Bhojane for Respondents 13 and 14. CORAM CORAM CORAM : F.I. REBELLO & : F.I. REBELLO & : F.I. REBELLO & K.U. K.U. K.U. CHANDIWAL,JJ. CHANDIWAL,JJ. CHANDIWAL,JJ. DATE DATE DATE : 04TH JUNE, 2008. : 04TH JUNE, 2008. : 04TH JUNE, 2008. P.C. P.C. P.C. : : : . Criminal Application No.150 of 2007 is an application for condonation of delay. We have heard the application alongwith the application for leave to appeal. 2. The State is in appeal against the judgment of the learned Additional Sessions Judge, Raigad, Alibag in Sessions Case Nos.179/03, 87/04 and 17/05 against the acquittal of all the Respondents except Respondent No.2 whose case was to be tried separately. 3. The case of the prosecution was that there was a dispute between Hirabai, the mother of the deceased -:2:- and Pratibha and Sunita, the sisters of the deceased on the one hand and the deceased and his wife on the other. The deceased and his wife are staying separately. The prosecution case is that in the night between 12.4.2003 and 13.4.2003, some persons came to the house of the deceased who are the officials of Thane Crime Branch and wanted the deceased Sanjay to accompany them. Sanjay asked his wife Smita to call Bhagwan Bhoir and Baban Bhoir. By the times Smita returned, the visitors took Sanjay to the car which was waiting on the street. They saw the visitors forcibly pushing Sanjay into the car and having succeeded, drove him away towards MIDC. In the meantime, Baban Bhoir also arrived. The prosecution case is that Smita, Bhagwan and Baban saw the four persons. Bhagwan Bhoir thereafter went to Taloja Police Station and was informed by officials from the Police Station that no Police Officers had gone to the house of Sanjay. They have searched for Sanjay but could not find him. Smita filed complaint on 14.3.2003. The dead body of Sanjay was found some time thereafter. On 22.4.2003, the Police arrested five persons who are Respondent No. 2, Respondent No.3, Respondent No. 6, Respondent No.7 and Respondent No. 8 in this application. 4. From the evidence on record what emerges is that Smita identified Jitu Nishad, Respondent No. 2 -:3:- and Jitendra Jagtap, Respondent No. 4 at the identification parade which was held on 3.7.2003. Baban Bhoir identified Respondent No. 3 and Bhagwan Bhoir identified Respondent No. 2 and Respondent No. 3. At the outset, it must be pointed out that in so far as these Respondents are concerned, no recovery was made either of the dead body or any of the weapons used to commit the offence at their instance. 5. The case of the prosecution is that Respondent No.1 agreed to show to the Police the dead body of the deceased Sanjay. The case of the prosecution is that the statement was recorded on 2.5.2003. This was based on interrogation made on 1.5.203 wherein Rajkumar agreed to show the spot where the body was exhumed the next day. The learned Judge after considering the evidence of PW-4 Subhash Mhatre recorded a finding that the Police were already aware on 1.5.2003 as to where the body was buried as they had addressed a letter to the Tahsildar Subhash Mhatre on 1.5.2003 itself to remain present at the place wherefrom the body is to be exhumed. The Court noted that Mhatre was not willing to disclose this fact. On the further cross examination, the letter was placed on record. In other words, the Police were fully aware on 1.5.2003 itself as to where the body was buried. The submission on behalf of the Respondents has been that in these circumstance, the evidence of -:4:- purported recovery of the body must be rejected. The learned Judge considering the same aspect has not considered that evidence. This view of the learned Judge is supported by the Judgment of the Supreme Court in Virender V/s. State of Delhi (1997) 6 Virender V/s. State of Delhi (1997) 6 Virender V/s. State of Delhi (1997) 6 Supreme Supreme Supreme Court cases (171) Court cases (171) Court cases (171). The Supreme Court has noted that the statement related to the fact which has already been discovered is not admissible. 6. We have considered the evidence of the recovery made at the instance of Prabhudas, of a chopper, statement of Jaidas leading the discovery of a knife and statement of Rajkumar leading to the discovery of chopper. Rajkumar is Respondent No.1, Prabhudas is Respondent No.13 and Jaidas is Respondent No.14. These are therefore persons totally unconnected with the earlier Respondent Nos. 2,3,6,7 and 8 who are the prosecution alleged to have abducted the deceased. The learned Judge, after assuming that the recoveries are good at law however considering the chemical analysers report, held that it was not possible to hold that these weapons were connected with the incident and of the death of Sanjay. We have no reasons in the absence of any material to the contrary to take a view different from the view taken by the learned Judge. -:5:- 7. In so far as identification parade is concerned, we find that though the incident is of 12/13th April 2003 and the arrest was on 22nd April 2003 the identification parade was held only on 3.7.2003. There is explanation whatsoever from the prosecution explaining the delay in holding the identification parade. In a similar case, case of the Supreme Court in Satrughana Parida & Ors. V/s. State Satrughana Parida & Ors. V/s. State Satrughana Parida & Ors. V/s. State of of of Orissa (1994) Supreme Court Cases (Cri.) 1424 Orissa (1994) Supreme Court Cases (Cri.) 1424 Orissa (1994) Supreme Court Cases (Cri.) 1424 held that in the absence of explaining delay in holding the parade for a long time, the said evidence should not be accepted. Apart from that we find that in so far as Smita is concerned, she identified one of the persons in Court who are different from the person identified in the identification parade. We agree with the learned Judge on his findings on this point also. 8. Considering the above, in our opinion there is no case to grant application for leave to Appeal. Accordingly, the application for condonation of delay and leave to appeal are dismissed. (F.I. (F.I. (F.I. REBELLO, J.) REBELLO, J.) REBELLO, J.) (K.U. (K.U. (K.U. CHANDIWAL,J.) CHANDIWAL,J.) CHANDIWAL,J.)