1 APPLN.5736-2010 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 5736 OF 2010 The State of Maharashtra ....Applicant. Vs. Razi Laik Khan & Ors. ....Respondents. ---- Mrs. M.M. Deshmukh, APP for the State/Applicant. ---- CORAM: B. H. MARLAPALLE & U. D. SALVI, JJ. JANUARY 12, 2011. P.C.:- Heard Mrs. M.M. Deshmukh, the learned APP for the State. 2. This Application has been moved by the State of Maharashtra for seeking leave to appeal under Section 378(3) of the Cr. PC against the order of acquittal dated 31.8.2010, passed by the learned Sessions Judge, Sindhudurg at Oros in Sessions Case No.29 of 2009. 2 APPLN.5736-2010 3. The prosecution examined in all 16 witnesses, including the Medical Officer(PW-8) so as to prove its case that the three accused, in furtherance of their common intention, had committed homicidal death of Fahim- son of Saveer Ahmad Shaikh Farukhi, by strangulating him by means of a rope in ‘Shree Glass Works’ situated at Udyamnagar, Kudal. 4. On examination of the medical evidence and the post mortem report at Exh.’40’ which was proved during the deposition of PW-8-Dr. Gauri Parulekar- the Medical Officer, it recorded finding that Fahim died of homicidal death, and there was no possibility of an accidental death or suicidal death. 5. The prosecution, so as to prove the complicity of the accused persons in causing homicidal death of Fahim, relied upon the evidence of PW-1- Umesh, PW-9 Prakash, PW-10 Kallappa and PW-2 Prakash who were the room boys working in Durvankur Motel situated at Udyamnagar, Kudal, PW-14 Hajare the Investigating Officer, PW-11 Bhagwan Sawant- Tahasildar who had conducted Test Identification Parades, PW-5 Vijay 3 APPLN.5736-2010 Tupat the panch witness and PW-15 Sachin Bhadange, a Nodal Officer from Vodafone Company, were some of the witnesses. 6. As per the prosecution, PW-2 Prakash has seen Fahim and two unknown persons entering Shree Glass Works while he was on duty at Durvankur Motel situated in Omkar Deluxe Hotel. PW-14 Hajare the Investigating Officer in his cross examination admitted that Shree Glass Works was not seen from Omkar Deluxe Hotel. TI parades was held on two different occasion and PW-2 Prakash, who as per the prosecution, did not identify the said three accused. If Fahim was seen with two unknown persons, the third person was intruder which was not known in second TI parade which was held at Sawantwadi District Prison and not in Sindhudurg District. The learned Trial Court Judge while justifying reasoning has discarded TI parades, and in addition he also noted that PW-2 Prakash did not identify the accused no.1 in the Kudal court while the substantive evidence was being recorded during the trial. The Trial Court also dealt with alleged recovery of Nokia Mobile hand-set (Article-12), the rope (Article-13) and the SIM card (Article-14). 4 APPLN.5736-2010 7. The evidence of PW-12Samil Ulla and PW-5 Vijay was considered by the Trial Court and it held that the evidence created doubt about its veracity and including evidence of PW-6-Vedesh and PW-14 Hajare the Investigating Officer. It was under these circumstances, the Trial Court also noted that the evidence of the Medical Officer PW-8 who had clarified in her cross examination that she did not notice weak mark of a rope around the neck of the deceased Fahim when she had conducted postmortem report. Even the rope (Article-13) was not shown to the Medical Officer when the evidence was recorded so as to confirm whether the found discontinuous linear contusions found on neck of the dead body of Fahim were possible by that rope. Even about the time of alleged death there was no clear medical evidence. As per the deposition of the Medical Officer, the death of Fahim could have occurred 12 hours before postmortem which was conducted between 5.00 p.m. and 7.00 p.m. on 29.1.2009. 8. In our view, the learned Trial Judge has meticulously sifted the evidence of the prosecution, and he rightly held that the prosecution failed 5 APPLN.5736-2010 to prove the complicity of any of the accused persons in causing the homicidal death of Faim. Hence, there is no case made out for reconsideration of the evidence in this application, and the application for leave to appeal is hereby rejected. (U. D. SALVI,J.) (B. H. MARLAPALLE,J.)