1` IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR 1. APPA No. 153/2011 in Criminal Appeal No./---/2011 (The State of Maharashtra through P.S. Walgaon vs. Chhagan Pundlikrao Mundokar). 2. Criminal Appeal No. 57/2011 (Shyam Rameshrao Dahake vs. Chhagan Pundlikrao Mundokar and another) ----------------------------------------------------------------------------------- Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's or directions and Registrar's orders. Orders. Mr. T.A.Mirza, APP for applicant in APPA No. 153/11. Mr. Raj D. Wakode, Advocate for appellant in Cri. Appeal No. 57/2011. Mr. T.A.Mirza, APP for R-2 in Cri. Appeal No.57/2011 CORAM : MRS. V.K.TAHILRAMANI & M.L.TAHALIYANI, JJ DATE : 25.3.2011 The applicant- State of Maharashtra has preferred this application (APPA) No. 153/2011 for leave to file appeal against the Judgment and order dated 3rd December, 2010 passed by the learned Sessions Judge, Amravati in Sessions Trial Case No. 51/2008. By the said Judgment and order, the learned Sessions Judge acquitted the respondent i.e. original accused under section 302 of the Indian Penal Code. The appellant – original 2` complainant Shyam Rameshrao Dahake has preferred Criminal Appeal No. 57/2011 challenging the very same Judgment and order of acquittal. As both these matters are directed against the very same Judgment and order, we are dealing with them together. 2. The prosecution case, briefly stated, is as under: On 26.8.2007 at about 10 to 10.15 p.m. a quarrel took place between deceased Rajendra and accused on account of money. The respondent-accused picked up a stone and assaulted Rajendra on the right hand and head. Rajendra sustained injuries and he died on the spot. FIR came to be lodged by P.W.3 Shyam Dahake. Thereafter, investigation commenced. Charge came to be framed against the respondent – accused under section 302 of the Indian Penal Code. He pleaded not guilty and claimed to be tried. His defence is of total denial and false implication. After going through the evidence adduced by the prosecution, the learned Sessions Judge acquitted the respondent – accused as stated in para no.1 above. 3. We have heard Mr. T.A.Mirza, learned APP for 3` the applicant – State of Maharashtra and Mr. Raj D. Wakode, learned counsel for the appellant- original complainant. We have perused the Judgment and order passed by the learned Sessions Judge as well as the evidence adduced in this case which has been produced by the learned APP. After carefully considering the matter, for the reasons stated hereinbelow, we are of the opinion that these matters deserve to be dismissed. 4. According to the prosecution, there are three eye witnesses to the incident i.e. P.W. 4 Ganpat, P.W.5 Pundlik and P.W.6 Prabhakar. The incident in question has taken place on 26.8.2007. P.W.4 Ganpat has stated that on the day of the incident at about 10 to 10.15. p.m., he went to the cattle shed to provide fodder and water to the cattle. That time accused demanded Rs. 25/- from Rajendra. Rajendra did not give him money. Accused then picked up a stone and hit on the right hand of Rajendra. He then assaulted Rajendra twice on his head by the same stone. It is pertinent to note that incident in question has taken place on 26.8. 2007. However, the statement of the witness was recorded on 3.9.2007. In his cross examination, this witness has admitted that he did not disclose this incident to any one before 3.9.2007. He has also admitted that he did not shout for help nor did he 4` raise any hue and cry. It has also come on record that the houses of the deceased Rajendra and his nephew Shyam Dahake were on the way to his house. However, he did not go to their houses and narrate the incident to them. A specific question was asked to the witness that normally he used to attend cattle shed in the evening at 6 p.m. for providing cattle food, water to the cattle and what was the special reason on the date of incident that at about 10 to 10.15 p.m. he went for providing cattle food to which he answered that there was no special reason. Here it is pertinent to note that the learned counsel has taken efforts to explain to the witness what is meant by special reason, namely; non availability of the fodder, witness may not be available in the evening, he may come late at night, cattle were missing and cattle found late night. After giving specific understanding about it to the witness, the witness has replied that there was no special reason for him to go to cattle shed at 10 to 10.15 p.m., thus, it is clear that there was no special reason for the witness to be present at the spot at that time. The presence of this witness at the spot at the relevant time, does not appear to be natural. Considering testimony of P.W. 4 Ganpat it is pertinent to note that as stated by him in cross examination there was no special reason then question arises as why he went there at that time, no 5` plausible explanation has been given by prosecution in that respect. Moreover, if he had really witnessed the incident, he would have narrated the incident to some one which he has clearly stated that he has not done till 3.8.2007. This conduct on the part of P.W.4 Ganpat raises doubt in the mind about the veracity of this witness. Moreover, there is a delay of about a week in recording the statement of this witness. No plausible explanation has been furnished by the prosecution for the delay in recording his statement. This also causes a serious dent in the prosecution case. 5. According to the prosecution, P.W.5 Pundlik has also witnessed the incident. He has deposed that when he was proceeding home he saw one person lying on the road. Accused was standing near that person with a stone in his hand. Then accused hit a person lying on the road with the stone. According to this witness, he got frightened and hence ran to his house and went to sleep. The statement of this witness was recorded on 30.8.2007. In the cross examination of this witness he has admitted that he was available in the village since 26.8.2007 to 30.8.2007. Again no plausible explanation has come on record as to why even though this witness was very much available in the village his statement was recorded on 6` 30.8.2007. We also find that the conduct of this witness is highly unnatural. He has admitted that he did not go to the house of deceased Rajendra and narrate about the incident which he had witnessed. According to this witness, next day morning Gajanan told him Rajendra had been murdered. Even that time, he did not tell Rajendra or any one else that he had witnessed the incident. This witness claimed that after Gajanan told him that Rajendra had been murdered, he rushed to the dispensary of Dr. Rahate to inform him about the incident. In fact, according to this witness, just before he witnessed the incident, he was sitting with Dr. Rahate. In such case it would have been natural on his part to rush to Dr. Rahate immediately after the incident so that Dr. Rahate could provide some medical aid to Rajendra. However, no such effort was made by the witness and instead he stated that he went home and went to sleep. We have already observed that we find the conduct of this witness to be unnatural and improbable, hence, we find great hesitation in relying on his testimony. 6. According to the prosecution, P.W. 6 Prabhakar had also witnessed the incident. It is noticed that even as far as the statement of Prabhakar is concerned, his statement has been recorded on 30.8.2007. The learned 7` counsel for the appellant submitted that there is a delay in recording the statement of Prabhakar because he was not available in the village. However, from the cross examination of this witness it is noticed that he was out of station since the evening of 27.8.2007 till 3.00 p.m. on 28.8.2007. From this it is clear that he was in the village on the next date till evening. Then again he was available in the village on 28.8.2007. However, his statement was recorded only on 30.8.2007. The evidence of this witness shows that he did not react on seeing the incident nor has he narrated the incident to any one including family members of the deceased till 30.8.2007. On carefully considering his evidence, we find his evidence is not worthy of reliance. 7. The learned APP as well as the learned counsel for the appellant- original complainant submitted that besides the evidence of eye witnesses there is a circumstance of extra judicial confession against the accused. This extra judicial confession has been made by the accused to P.W.7 Ranjit Arvind Bonde. It is noticed that Ranjit Bonde is the Police Patil of the said village. In this connection we may refer to the evidence of P.W.10 Police Head Constable Mankar. P.H.C., Mankar has deposed that P.W.3 Shyam Dahake came to the Police Station at 11 to 8` 11.30 p.m. and informed about the incident. Hence, he rushed to the spot for inspection. This witness has stated that at that time P.W.7 Ranjit Bonde – Police Patil was present in the village. P.H.C.,Mankar made inquiry with police patil. From the evidence of this witness it is seen that when P.H.C., Mankar made inquiry with P.W. 7 Ranjit Bonde, at that time, he did not inform P.H.C., Mankar about the extra judicial confession made by the accused to him. In fact, P.W. 7 Ranjit Bonde – police patil has admitted in his cross examination that for the first time, he has stated before the police on 29.8.2007 that accused had made an extra judicial confession to him. The learned counsel for the complainant as well the learned APP submitted that there is a delay in recording the statement of this witness because he was out of the village on 27th and 28th August, 2007. However, it is noticed that when P.W. 10 P.H.C., Mankar went to the village, he made inquiry with P.W.7 Ranjit Bonde at that time, nothing was stated about the extra judicial confession by P.W. 7 Ranjit Bonde to P.H.C.,, Mankar. In fact when inquest panchanama was carried out at that time also P.W.7 Ranji Bonde- Police Patil was very much present. This is clear from the cross examination of P.W.7 Ranjit Bonde wherein he has stated that it is true that on 27.8.2007 at about 3.00 p.m. Police prepared inquest panchanma of the dead 9` body of the deceased, at that time he was present there. In such case looking to the fact that P.W.7 Ranjit Bonde is the Police Patil of the village and not a lay person, he would know his duties, therefore, if the accused had really made an extra judicial confession to this witness, this witness would have definitely informed the police about it first in point of time i.e. on 26.8.2007 itself. This silence on his part raises a dark cloud of doubt about the truthfulness of this witness. 8. The learned APP as well as the learned counsel for the appellant- original complainant submitted that the evidence of P.W. 7 Ranjit Bonde is corroborated by the evidence of P.W. 2 Madhukar who was present when extra judicial confession was made by the accused to P.W.7 Ranjit Bonde. However, as far as the evidence of P.W. 2 is concerned, there is a delay in recording the statement of this witness also. His statement was also recorded on 30.8.2007. No plausible explanation has been brought on record in relation to the delay in recording the statement. In such case, we find it unsafe to rely on the testimony of this witness. 9. Thereafter, reliance was placed on the fact that there is recovery of the stone at the instance of the 10` accused. As far as this recovery is concerned, it is noticed that pancha witness has not been examined. Looking to the other evidence on record, we are of the opinion that the learned Sessions Judge was right in not relying on the circumstance of recovery of stone. 10. The learned Sessions Judge has taken into consideration all the above aspects as well as other aspects in this case and thereafter he has acquitted the respondent – accused. 11. We may make useful reference to the decision of the Supreme Court in State of Uttar Pradesh vs. Dinesh (2009)3 Scale, 345 wherein in a case of appeal against acquittal it was held that if two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court. The Supreme Court in C. Anthony vs. K.G. Raghavan Nair reported in (2003) 1 SCC 1 has observed that when two views are possible and when the view taken by the trial Court is a reasonable and possible view, the High Court cannot in an appeal substitute its findings merely because another contrary opinion was possible on the basis of the material on record. It is further observed that if two reasonable 11` conclusions can be reached on the basis of the evidence on record, appellate court should not disturb the findings of the trial court. Looking to the evidence on record, we are of the opinion that the view taken by the learned Sessions Judge is a reasonable and possible view, hence no case is made out for interference. 12. For the aforesaid reason, the application for leave to file appeal preferred by the appellant State is rejected. Consequently, appeal is dismissed. For the same reasons, the appeal preferred by the original complainant is also dismissed. JUDGE JUDGE patle 12`