1 rma IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1871 OF 2010 IN CRIMINAL APPEAL NO. OF 2009 The State of Maharashtra .. Applicant Vs Baban Balu Kople and Ors .. Respondents Mrs. M.M. Deshmukh, APP for the State CORAM : SMT. RANJANA DESAI & SMT. V.K. TAHILRAMANI, JJ. DATE : 13th APRIL, 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 24.03.2009 passed by the learned Additional Sessions Judge, Satara in Sessions Case No. 78 of 2007. By the said judgment and order, the respondents-original accused nos. 1 to 4 came to be acquitted of the offence under sections 302, 201, 120 B read with section 34 of the IPC. 2. The prosecution case briefly stated is that deceased Kundalik Thombare gave an amount of Rs. 45000/- to accused no. 1 Baban. The deceased was demanding the amount back from Baban. There also were some other disputes between Baban and the deceased. Hence, on 05.12.2006, accused Baban brought 7.appln1871­10 2 the deceased to his house. Thereafter, Kundlik was murdered by the respondents - original accused nos. 1 to 4 in the house of Baban. His body was dragged from the house of Baban and thrown in dung pit near the house. 3. Charge under sections 302, 201, 120 B read with 34 of IPC came to be framed against the accused persons to which they pleaded not guilty and 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 leave is to be granted to file appeal against respondent no. 1 - original accused no. 1 only. 5. There is no eye witness in the present case and the case is based solely on the circumstantial evidence. The circumstantial evidence consists mainly of "last seen". PW4 Manisha Dagade has stated that on 06.12.2006 at about 6.00 pm, she had seen respondent no. 1 Baban and deceased going together. From the house of respondent no. 1, she heard 7.appln1871­10 3 sound of deceased and respondent no. 1 quarreling. On the next day, body of the deceased was found near the dung-pit, opposite the house of of respondent no. 1. The evidence on record further shows that there were marks of dragging from the house of respondent no. 1 to the dung-pit. 6. As far as respondent nos. 2 to 4 i.e original accused nos. 2 to 4 are concerned, no incriminating circumstance had been brought on record so as to connect them with the crime. No witness has stated that respondent nos. 2 to 4 were last seen with the deceased. Nor has any witness stated that respondent nos. 2 to 4 were present in the house of Baban on the night of the incident or that they saw any of these accused dragging the body of Kundalik to the dung pit. 7. In view of the above facts, we are not inclined to grant leave to file appeal against acquittal as far as respondent nos. 2 to 4 are concerned. However,as far as respondent no. 1 Baban is concerned, we are inclined to grant leave to file appeal against acquittal in view of the circumstances enumerated by us. Leave is granted only as far as respondent no. 1 is concerned and leave to file appeal is rejected as far as respondent nos. 2 to 4 are concerned. Application is disposed of. 7.appln1871­10 4 8. Appeal be admitted only in respect of respondent no. 1 Baban Balu Kople. 9. Action under section 390 of Cr.P.C. be initiated in respect of respondent no. 1. [SMT. RANJANA DESAI, J.] [SMT. V.K. TAHILRAMANI, J.] 7.appln1871­10