Cri.Appeal No.204 of 2011 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO.204 OF 2011 Shaikh Aftab Hussain .. Appellant Versus Dnyaneshwar Maharu Patil (Pawar) and ors. .. Respondents Mrs S.T.Kazi, Advocate for appellant Mr S.K.Tambe, A.P.P. for respondent No.12 - State CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 13th June 2011 PER COURT 1. This is an appeal filed by the complainant challenging the acquittal of the respondents-accused of offence punishable under Sections 143, 147, 148, 395, 435, 336 and 427 of the Indian Penal Code and under Section 135 of the Bombay Police Act. 2. According to the prosecution, on the day of the incident the accused were members of the unlawful assembly and had accordingly stolen certain articles belonging to the complainant, which were in the poultry farm. The entire prosecution case revolves round the evidence of P.W.6 Bhiva More. P.W.6 Bhiva More was examined as a witness on behalf of the prosecution. In his examination-in-chief he had stated that he had not seen as to who had pelted stones and could not state whether Cri.Appeal No.204 of 2011 2 the accused persons were pelting the stones as there was darkness. P.W.6 Bhiva was declared hostile by the prosecution and was cross- examined. In cross-examination he had denied to portion marked “A”, “B” and “C“ from his previous statement recorded during investigation. The prosecution has proved the contradictions at portion marked “A”, “B” and “C” by examining the Investigating Officer, who had recorded the aforesaid statement. Apart from the evidence of P.W.6 Bhiva, the prosecution also relied upon certain discoveries being made by the accused under Section 27 of the Indian Evidence Act, which pertain to the stolen property at the poultry farm. 3. The trial Court in its judgment has observed that no reliance could be placed on the evidence of P.W.6 Bhiva as he had not supported the prosecution and nothing was elicited in his cross-examination, which would in any manner assist the prosecution. The trial Court also found that the stolen property had not been identified and mere recovery of the property under Section 27 of the Indian Evidence Act cannot sustain the conviction. 4. We have heard Mrs Kazi, learned Counsel for the appellant, who has urged before us that in the light of the fact that the prosecution has proved portion marked “A”, “B” and “C”, the prosecution clearly indicated that P.W.6 Bhiva was not a witness of truth and was not speaking the Cri.Appeal No.204 of 2011 3 whole truth in respect of the participation of the accused. The learned Counsel for the appellant has also urged before us that in the light of the corroborative evidence relating to the discovery of stolen property, the trial Court ought to have convicted the respondents. 5. With the assistance of the learned Counsel for the appellant and the learned Assistant Public Prosecutor for the State we have perused the record and proceedings. The record and proceedings indicate that P.W.6 Bhiva had not supported the prosecution and was declared hostile. Merely proving portions from the statement of a witness recorded during investigation does not amount to substantive evidence. In his substantive evidence, P.W.6 Bhiva had clearly stated that he could not see as to who had pelted stones and that he could not state if the accused were the persons who had pelted the stones. In such circumstances, since there is no substantive evidence in respect of the participation of the accused in the crime, the acquittal of the accused cannot be interfered with. Mere recovery of the property without it being identified as the stolen property would not aid the prosecution in establishing the offence. Since there is no identification of the stolen property, according to us there is no merit in the present appeal. Cri.Appeal No.204 of 2011 4 6. Accordingly, the present appeal is dismissed summarily confirming the acquittal of the respondents. ( A.V. POTDAR, J. ) ( P.V. HARDAS, J. ) (vvr/204.11criapeal)