1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application (APPA) No. 38 of 2011 in Criminal Appeal No. of 2011 State of Mahrashtra, through P.S.O., P.S., Pimpalgaon Raja, Tah. Khamgaon, Dist. Buldhana ..VERSUS.. Sampat Hari Suryawanshi and 5 others. Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. T. A. Mirza, A.P.P. for the applicant/State CORAM : Mrs.V.K.Tahilramani and Prasanna B. Varale, JJ. DATED : 18 th March , 2011 . This application for grant of leave to file appeal is directed against the judgment and order dated 27th October, 2010, passed by the learned Additional Sessions Judge, Khamgaon in Sessions Case No. 03/2010. By the said judgment and order, the learned Addl. Sessions Judge, Khamgaon acquitted the respondents/original accused nos.1 to 6 of the offence punishable under Sections 143, 147, 148 and 302 read with section 149 of Indian Penal Code. 2. The prosecution case briefly stated is that accused no.1 Sampat Hari Suryawanshi had taken water tank situated at Hiwra budruk on contract basis for fishing. The deceased Anil was found fishing in the said tank, hence, all the accused persons assaulted him. Due to the assault, Anil died. 3. We have heard Mr. T.A.Mirza, learned APP for the applicant/ 2 State at length. We have perused the judgment and order passed by the learned Additional Sessions Judge, Khamgaon and the evidence which has been produced by the learned APP. After carefully considering the material and for the reasons stated hereinbelow, we are of the opinion that there is no merit in this appeal. 4. According to the prosecution, there are two eye-witnesses to the incident i.e. P.W.2 Dhananjay Kashiram Sapkal and P.W.4 Ravindra Shamrao Suryawanshi. P.W.2 Dhananjay is the real brother of victim Anil. P.W.2 Dhananjay has stated that on 05/10/2009 in the evening, he and his brother could not catch fish in the river, hence, they gone to the tank of accused no.1 Sampat at about 11.00 p.m. At about 12.30 a.m. accused nos.1 to 6 came to the tank. they caught hold of Anil and started beating him. He has stated that accused no.6 Sachin was having Scythe with him while accused no.2 Pawan was having stick with him. This witness has stated that thereafter he did not know what happened. 5. On perusal of the cross-examination of P.W.2 Dhananjay, it is noticed that he has stated that he came to know about the incident through Ravi Suryawanshi (PW4) and after getting knowledge of the incident in question, he thought of lodging the report against the accused persons as per the facts narrated by Ravi Suryawanshi. These admissions in the cross-examination of P.W.2 Dhananjay show that this witness was not present at the spot of the incident and he came to know about it through Ravi (PW4) and thereafter he lodged this First Information Report. Moreover, it is noticed that the F.I.R. was lodged on the next day i.e. on 06/10/2010 at 9.34 a.m. If at all this witness had witnessed the incident which occurred at mid-night of 05/10/2009, he would have immediately rushed to the police station 3 or he would have gone back to see as to what had happened to his brother, however, he has not done so. This delay in lodging the F.I.R. and conduct of this witness also raises serious doubt about the genuineness of the prosecution case. 6. The second eye-witness is P.W.4 Ravindra Suryawanshi. He is the nephew of deceased Anil. He has stated that accused no.1 Sampat along with accused nos.2 to 6 had come to him and told him that they would go to the tank. Hence, they called one auto rikshaw driver and then all of them went to the tank. According to this witness, accused no.2 Pawan and accused no.5 Raju went to the tank. They saw Anil running from there. Accused Pawan and Raju caught Anil and started assaulting him. He deposed that Anil asked him for water, however, in the cross-examination, P.W.4 Ravindra has deposed that he came running back to Anil as Anil was saying that accused persons would kill him. Thereafter, the accused persons started walking away. He called accused Pawan and Raju and asked them to carry Anil to hospital. According to the prosecution, P.W.2 Dhananjay and his brother Anil came to fish at the tank, however, though P.W.4 Ravindra is the nephew of P.W.2 Dhananjay as well as Anil, he has not stated a single word about the presence of P.W.2 Dhananjay at the spot. So also, P.W.2 Dhananjay has not even made a whisper that P.W.4 Ravindra had come to the tank. P.W.2 Dhananjay and P.W.4 Ravindra are closely related. This lapse on the part of these witnesses, creates doubt in the mind as to whether P.W.2 Dhananjay or P.W.4 Ravindra or both were present at the spot. 7. The prosecution has also placed reliance on the evidence of P.W.7 Bhimrao Samadhan Tayade, who is Minidoor driver. According to him, he had taken accused persons in his Minidoor vehicle to the 4 tank and again from tank to police station and hospital. This witness has stated that the person sitting along with him in the vehicle was saying that he had told injured Anil not to commit theft of the fish from his tank and from this, he came to know that name of injured was Anil. However, all the prosecution witnesses have stated about auto rikshaw, whereas this witness has stated about minidoor vehicle. There is huge difference between auto rikshaw and minidoor vehicle. Moreover, it is noticed that the accused persons were not known to P.W.7 Bhimrao prior to the incident. In such case, it was essential that an identification parade ought to have been held. In the present case, it is an admitted fact that no identification parade was held. In such case, identification of the accused persons by P.W.7 Bhimrao for the first time in the Court, cannot be relied upon. 8. The prosecution has also relied on the evidence of recovery of weapons at the instance of accused no.2 Pawan and accused no.6 Sachin i.e. stick and scythe, respectively. As far as weapons are concerned, it is seen from the evidence of P.W.6 Dr. Rajendra Chavan that there was no seal on the said weapons. The weapons were shown to the Doctor. The Doctor has categorically stated in his cross- examination that when the weapons were produced before him for inspection, at that time, there was no seal on the said weapons nor were seals put on the weapons after he inspected the weapons. Thus, there is no evidence to show that the weapons were sealed immediately after they were seized. Non-sealing of the weapons on the spot is a serious infirmity because, the possibility of tampering of weapons cannot be ruled out. In such case, no importance can be given to the circumstance of recovery of weapons at the instance of both these accused persons. 5 9. The learned Additional Sessions Judge, Khamgaon has taken into consideration these facts as well as the other facts of the present case and thereafter he has acquitted the respondents/accused. The Supreme Court in the case of C. Anthony .vs. K.G.Raghvan 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 against acquittal 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 conclusions can be reached on the basis of the evidence on record, the appellate court should not disturb the findings of the trial Court. So also, the Supreme Court in the case of State of Uttar Pradesh .vs. Dinesh, reported in (2009)3 Scale 345, has observed 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. 10. Looking to the evidence on record, we find that the view taken by the learned Additional Sessions Judge, Khamgaon is a reasonable and possible view, hence, no case is made out for interference. 11. Leave to file appeal is rejected. Consequently the appeal is dismissed. JUDGE JUDGE Diwale