SSM 1 905.appln.1463.09.doc IN THE HIGH COURT OF JUDICATURE OF BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1463 OF 2009 The State of Maharashtra ....Applicant Versus Ajit Pradip Patil and others ....Respondents ____________ Mr. J. P. Kharge, APP for Applicant. Mr. Ajit Modi with Darshan Modi i/b M/s Udaipuri & Co. for the Respondent no. 1. CORAM: A. R. JOSHI, J. DATED : 7 TH APRIL, 2011. P.C.: Heard learned APP for State in this application for leave to file Appeal against the acquittal. order of acquittal was passed on 1 st December, 2008 by Additional Sessions Judge, Palghar, District- Thane. Initially, three accused persons faced the trial for the offence punishable under Section 399 of the Indian Penal Code. All the three accused were acquitted for the said offence. Said order of acquittal is challenged by State. 2. During the pendency of the present Leave Petition, it is a factual position that original accused no. 2-present Respondent No. 2 died in police encounter. It is also factual position that SSM 2 905.appln.1463.09.doc original Accused No. 3-Respondent No. 3 is presently not available as absconding and could not be served though notices were issued against him. As such, only Accused No. 1- present Respondent No. 1 is represented by learned Advocate. 3. Admittedly, except the charge punishable under Section 399 of the Indian Penal Code i.e. for making preparation of dacoity, no other charge was attracted. It is also factual position that on the spot on specific secret information when Surveillance Watch was kept on 29 th May, 2007 some of the accused persons arrived there on motorcycle and after some time one motor car also arrived. There were about 5-6 persons gathered and had some talk. During such talk among the accused persons the raiding party members charged ahead and surrounded them. In the said commotion, Accused No. 1- present Respondent No. 1 could be apprehended, and other accused flee away. Subsequently, Accused Nos. 2 and 3 i.e. Respondent Nos. 2 and 3 were found earlier arrested by Vikroli Police Station and they were shown arrested in SSM 3 905.appln.1463.09.doc the present matter on 03.07. 2007 i.e. after a period of 1 month and 4 days after the date of incident. It is also admitted position that nothing incriminating was found against the Accused Nos. 2 and 3 as they were subsequently arrested. However, admittedly one Chopper and one Mobile were found with present Respondent- Accused No. 1. 4. In order to substantiate the charge against the Accused Nos. 1 to 3 who where put on trial, prosecution examined 7 witnesses. Except P. W. Nos. 2 and 3 who were Panch witnesses, all other witnesses are Police Officials and alleged raiding party members. P. W. 2- Panch did not support the case of prosecution as he could not identify Respondent No. 1-Accused No. 1 during the trial, also he could not identify the Mobile and Weapon allegedly seized by the police on the spot from the custody of the said apprehended accused. It is, specifically, mentioned by said Panch that what was found by the police with the apprehended accused person is that mobile and knife. He do not speak about the SSM 4 905.appln.1463.09.doc chopper. Sofar as another Panch P.W.3 is concerned, he also speak the weapon as knife found with the apprehended person. Apparently, this was the evidence of independent witness available before the Trial Court. Considering the substantive evidence of prosecution witnesses, learned Trial Court came to the conclusion that the charge punishable under Section 399 of the Indian Penal Code was not established beyond reasonable doubt and as such order of acquittal was passed which is challenged in the present matter. 5. Considering the above factual position and available material before the learned Trial Court and considering the import of evidence of mainly the Panch witnesses, there is nothing to allow the present Application for leave to file an Appeal and hence, consequently the present application is disposed off with following order: “Criminal Application No. 1463 of 2009 stands rejected.” (A. R. JOSHI J.)