-:1:- IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPLICATION NO.294 OF 2008 APPLICATION NO.294 OF 2008 APPLICATION NO.294 OF 2008 IN IN IN CRIMINAL CRIMINAL CRIMINAL APPLICATION NO.1600 OF 2008 APPLICATION NO.1600 OF 2008 APPLICATION NO.1600 OF 2008 The State of Maharashtra. ... Applicant. V/s. Mahesh Shivram Pawar. ... Respondent. Mrs. V.R. Bhosale, A.P.P. for the State. None for the Respondent. CORAM CORAM CORAM : F.I. REBELLO & : F.I. REBELLO & : F.I. REBELLO & K.U. K.U. K.U. CHANDIWAL,JJ. CHANDIWAL,JJ. CHANDIWAL,JJ. DATE DATE DATE : 25TH JUNE, 2008. : 25TH JUNE, 2008. : 25TH JUNE, 2008. P.C. P.C. P.C. : : : . Both the applications are being disposed of by this common order. 2. The Respondent was charged for an offence punishable under Section 302, as also 201 and 404 of the Indian Penal Code. He has been acquitted of the charges and consequently the State is in appeal. 3. The entire case of the prosecution is based solely on a purported recovery made at the instance of the applicant of a mobile phone and a purse. In the first instance nothing has come on record which would indicate that the mobile phone was being used by the deceased. The evidence on record is that the mobile phone was in the name of the brother of the deceased. -:2:- The Investigating Officer through his evidence had sought to point out that he had got information from B.S.N.L. and they were able to find out the user of the mobile phone. The learned Judge, however, noted that no Officer of B.S.N.L. was examined to confirm the said fact. 4. Secondly, a wooden stick purported to have been recovered at the instance of the Accused, did not contain any blood stain, as per the report of the C.A. The learned Judge also has noted that in so far as mobile phone is concerned, PW-7 who was one of the purchasers of the mobile phone has deposed that he had taken the said mobile instrument to one shopkeeper at Rajapur as it was not working and it was revealed that a lot of expenditure would be required to repair the said mobile handset. From the evidence of PW-9 on the contrary it has come on record that he could use the said mobile phone by inserting a SIM Card and as such there is no requirement of repairing of the said mobile. The learned Judge has also pointed out the inconsistencies in the evidence. In paragraph 12 of the Judgment, the learned Judge also noted in respect of the recovery of the articles that there is nothing on record to indicate that the memorandum was drawn at Police Station and a voluntary statement was made by the accused to produce the articles. -:3:- 5. Considering these aspects and as the chain of circumstantial evidence has not been established, the learned Judge gave the benefit of doubt in favour of the Accused. 6. After considering the Judgment and the evidence on record, in our opinion, it would be difficult to differ from the view taken by the learned Judge in an appeal against acquittal. Once the Judgment can be supported for the reasons available on record, it would not be open for this Court because it may have a contrary view, to grant leave. 7. In the light of above, both the applications are disposed of accordingly. (F.I. (F.I. (F.I. REBELLO, J.) REBELLO, J.) REBELLO, J.) (K.U. (K.U. (K.U. CHANDIWAL,J.) CHANDIWAL,J.) CHANDIWAL,J.)