1` IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application No. 1718/2009 in Criminal Appeal No. 281/2009 State of Maharashtra, through Police Station Officer, Police Station, Salekasa, Tah.Salekasa, Distt. Gondia vs. Shankar Bajirao Mendhe and others. ----------------------------------------------------------------------------------- Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's or directions and Registrar's orders. Orders. CORAM : A.P.Lavande & Prasanna B.Varale,JJ DATE : 07.11.2009 Heard Mr. A.G. Mujumdar, learned A.P.P. for the appellant. 2. By this application the appellant seeks leave to appeal against acquittal from the Judgment and order dated 17.1.2009 passed by the Additional Sessions Judge, Gondia in Sessions Trial No. 59/2005 acquitting the respondents for the offences punishable under Sections 302, 201 read with Section 34 of the Indian Penal Code. The respondents were charged for having committed murder of Madhukar Mendhe and Vinod Mendhe. 3. The learned Additional Sessions Judge recorded findings of acquittal on the basis of the following infirmities. 1. Delay in lodging complaint against accused no. 1 2` to 4; 2. Absence of proof of motive; 3. Non-examiantion of Investigating Officer; and 4. Inconsistency in the evidence of eye witness and the medical evidence. 4. Mr. Mujumdar, learned A.P.P. for the appellant submitted that there is absolutely no delay in lodging the first information report inasmuch as no sooner the dead bodies of the deceased were found in the well the first information report was recorded and, therefore, first infirmity pointed out by the learned Judge is contrary to the evidence. Insofar as second infirmity is concerned, Mr. Mujumdar submitted that the evidence of P.W.1 Parbatabi - wife of deceased Madhukar clealry established the motive for the commission of the murder by the accused. Mr. Mujumdar further submitted that investigating officer could not be examined since he was seriously ill. According to Mr. Mujumdar, the reasons given by the learned Judge for acquitting the respondents are contrary to the evidence on record and acquittal of the respondents is liable to be set aside. 5. We have considered the contentions made by the learned A.P.P. and perused the record. 6. The prosecution relied upon P.W.3 3` Kuwarlal who claimed to be an eye witness to the incident. The incident in question occurred during the intervening night of 7th and 8th June, 2005. Admittedly, the statemnt of Kuwarlal was recorded on 7.7.2005 and for the period of one month he did not disclose the incident to anybody. Theefore, the conduct of Kuwarlal is suspicious and the learned trial court was absolutely justified in not placing reliance upon his testimony. Insofar as the two prosecution witnesses P.W.4 Vishwanath Mohankar and P.W.6 Krushnaraj Hattimare are cocnerned, they claimed that they had seen the accused coming from the property of the deceased on the intervening night of 7th and 8th June, 2005. Their statements also were recorded on 7.7.2005. There is absolutely no reason for them to keep quite for such a long period and, therefore, the learned trial court was justified in not placing reliance upon their testimonies. The trial court also held that there is inconsistency between the evidence of the alleged eye witness and medical evidence inasmuch as the weapons viz. Sticks recovered at the instance of the accused had no sharp edges and the post mortem report disclosed that incised injuries on the bodies of the deceased. There is absolutely no illegality inthe said finding recorded by the trial court. 7. It is settled that motive by itself cannot be the foundation for convicting the accused. 4` Morevoer, the prosecution did not examine the investigating officer thereby depriving the accused of valuable right to bring on record the contradictions and omissions onrecord. 8. From the perusal of the Judgment and record, we are of the considered opinion that it cannot be said that the findings recorded by the learned trial court are perverse warranting interference in appeal against acquittal. It is settled law that in appeal from acquittal the appellate court should not interfere unless the findings given by the trial court are absolutely perverse or contrary to the evidence on record. 9. For the reasons aforesaid, we find no merit in the present application. Hence, the application is rejected. Criminal Appeal No. 281/2009; (State of Maharashtra vs. Shankar Bajirao Mendhe and others.) In view of the rejection of the criminal application no. 1718/2009, Criminal Appeal No. 281/2009 is dismissed. Consequently Criminal Appeal stands dismissed. JUDGE JUDGE patle 5`