1 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1393 OF 2010 (FOR LEAVE TO FILE APPEAL) IN CRIMINAL APPEAL NO. OF 2010 The State of Maharashtra ..Applicant [Ori.Complainant] Vs. Rajesh Raju Shettiyar and Ors. ..Respondents [Ori.Accused nos.1 to 5] .... Mr. Rajesh More APP for the Applicant-State .... CORAM : SMT.RANJANA DESAI AND SMT.V.K.TAHILRAMANI, JJ. DATE : 30th MARCH, 2010 P.C. [PER SMT.V.K.TAHILRAMANI,J.]: 1 The applicant-State of Maharashtra has filed this application for leave to file appeal against the judgment and order dated 21.12.2009 passed by the learned Principal Judge, City Civil and Sessions Court, Greater Bombay in Sessions Case No. 887 of 2007. By the said judgment and order, the respondents i.e. accused no.1 Rajesh Raju, Shettiyar, accused no.2 Mohd. Ali Chottu Shaikh, accused no.3 Nasir Amanulla Sayyed, accused no.4 Rahat Kadir Khan and accused no.5 Sushant Kamalkumar Sah came to be acquitted of the offence under 2 Sections 120(B), 302 r.w. 120(B) of IPC and Section 37(1)(b) of Bombay Police Act. 2 The prosecution case briefly stated is that deceased Jafar Rana was carrying on business of courier and clearing agent from his office in Laxminarayan Building, Kalbadevi, Mumbai. He had many enemies due to business rivalry. On two earlier occasions, he was assaulted by deadly weapons. On 23.3.2007 Jafar was in his office. His Manager PW 4 Pappu alias Manoj was with him. It is further the case of the prosecution that respondent no.1 was also in the same business and he had suspicion that Jafar Rana gave some information to the officers of the Customs Department regarding his goods which led to imposition of heavy penalty against him by the Customs and Octroi Department, hence, the respondent nos.1 to 5-original accused nos.1 to 5 had hatched a criminal conspiracy and thereafter, between the night of 23.3.2007 and 24.3.2007, murdered Jafar Rana by stone, chopper and knife. 3 Charge under Sections 120(B), 302 r.w. 120(B) of IPC and under Section 37(1)(b) of the Bombay Police Act came to be framed against the accused persons to which they pleaded not guilty and 3 claimed to be tried. Their defence is that of total denial and false implication. 4 We have heard the learned APP for the applicant-State of Maharashtra. We have perused the judgment and order passed by the learned Sessions Judge. We have also perused the evidence which was produced by the learned APP. After carefully considering the matter, for the reasons stated herein below, we are of the opinion that the judgment and order passed by the learned Sessions Judge does not call for any interference. 5 There is only one eye witness to the incident i.e. PW 4 Manoj. It is pertinent to note that in the court, Manoj has not identified any of the accused persons. Thus, his evidence would not help the prosecution. The FIR in this case was lodged by PW 2 Mohd. Ali Shaikh brother in law of deceased, however, the evidence shows that inspite of detail enquiry by PW 2 Mohd. Ali Shaikh with eye witness PW 4 Manoj, the only information elicited by the complainant was that four unknown persons had assaulted the deceased with weapons like chopper etc. Thus, from the evidence on record specially the FIR, it is seen that PW 4 Manoj did not know the names of any of the assailants and that the 4 assailants were unknown to him at the time of the incident. Moreover, the case of the prosecution appears to be that the accused persons entered into the office of Jafar Rana and assaulted him with choppers and knife, however, PW 4 Manoj gives a different story in his testimony before the Court. The sum and substance of his deposition is that four unknown persons together threw a big stone towards deceased Jafar Rana, because of which, Jafar Rana fell on the ground and sustained severe injuries to his head. Thus, from the evidence of this witness, it appears that the prosecution case itself is full of contradictions. 6 The prosecution is relying on a circumstance of extra judicial confession to PW 3 Naushad Ali, however, this witness does not support the prosecution. 7 Looking to the evidence on record, the view taken by the learned Sessions Judge is a reasonable and possible view. 8 The plenitude of power available to the Court hearing an appeal against acquittal is the same as that available to a court hearing an appeal against an order of conviction, but, however, the court hearing an appeal against acquittal, will not interfere solely because a different 5 plausible view may arise on the evidence. The Supreme Court in the case of C.Anthony Vs. K.G.Raghavan Nair reported in (2003) 1 SCC 1 has observed that while hearing an appeal against an order of acquittal, if two reasonable conclusions can be reached on the basis of evidence on record, the appellate court should not disturb the finding of the trial court. We have already observed that the view taken by the learned Sessions Judge is a reasonable and possible view. Hence, we are not inclined to interfere in the judgment and order of acquittal. In view of the above, leave to file appeal, is refused. Appeal dismissed. [SMT. RANJANA DESAI, J.] [ SMT. V.K.TAHILRAMANI, J.]