1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR CRIMINAL APPLICATION (APPA) NO.229 OF 2011 IN CRIMINAL APPEAL NO. OF 2011. ( STATE OF MAHARASHTRA THR. PSO, P.S. KURHA, DIST. AMRAVATI..VS..RAMRAO NARAYAN SAUTKAR & ANR.) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Ms. S.S. Jachak, A.P.P. for Applicant/Appellant. CORAM : MRS. V.K. TAHILRAMANI AND M.L.TAHALIYANI, JJ. DATE : JUNE 15, 2011. Heard learned Additional Public Prosecutor for applicant-State. The State has moved this Court for grant of leave to file appeal against the judgment and order dated January 07, 2011, passed by learned Additional Sessions Judge, Amravati in Sessions Case No.55 of 2009. By the impugned judgment and order the learned Additional Sessions Judge has acquitted respondents No.1 and 2 of the charge for the offences punishable under Sections 302 read with 34 and 201 read with 34 of the Indian Penal Code. Respondents No.1 and 2 were prosecuted by Kurha Police Station of District : Amravati for the said offences for allegedly having committed murder of deceased Prakash @ Bandu. The alleged murder was committed near brick kiln where accused-respondents Nos.1 and 2 were working as labourers. The deceased was allegedly beaten by 2 accused No.2 in furtherance of common intention of both the accused. It appears that the prosecution had alleged that around 65 injuries were caused to the deceased. The prosecution case is that minor burn injuries were inflicted at various organs of body of the deceased. The total number of injuries are around 65. One of the injuries is head injury which is described as large bleeding under the scalp in both parietal region and occipital region. The condition of the brain was found to be oedematous. Blood clot was seen on the surface of brain in right parietal region posteriorly. Size of the blood clot was 4 x 4 cms. Doctor had opined that the death was due to head injury associated with thermal burns. As such the deceased had died mainly due to the head injury. The whole case of the prosecution was based on the evidence of P.W. 3 Diwakar. Diwakar had gone to his field around 10.30 p.m. to put off the motor of water pump. It is stated by him in his evidence that he had been called by accused Nos. 1 and 2 near their brick kiln. He had seen the deceased in naked condition with burn injuries. His bicycle was demanded by the accused for carrying the dead body to the main road. He had voluntarily given his bicycle. His bicycle was returned to him by the respondent-accused and he was threatened that he should not disclose as to what he had seen on that night. It is because of this reason that P.W. 3 did not disclose the fact to anybody else till his statement was recorded. The conduct of P.W.3 was found to be questionable by the trial Judge. In the opinion of the trial Judge that P.W. 3 was a got up witness. The trial Judge has noted that the deceased was very well known to P.W. 3. In 3 fact, P.W. 3 should have questioned respondents No.1 and 2 on the spot itself as to what had happened to the deceased. This he had not done. On the contrary, he had extended help to respondents No.1 and 2. He thereafter left the spot quietly on the bicycle when his bicycle was returned to him. P.W. 3 did not report the matter on the same day or even on the next day. He had disclosed names of respondents No.1 and 2 to the police only after registration of the offence. The offence was registered on the complaint made by the brother of the deceased who is examined as P.W. 1 Deelip. It is seen from the evidence that even P.W. 1 was also not informed by P.W. 3. It was suggested to P.W. 3 in his cross- examination that he had stated names of respondents No.1 and 2 in his statement at the instance of Constable Suresh Bhosale. At this stage it is necessary to be stated here that Constable Suresh Bhosale was initially arrested in this case and was remanded to police custody. He was arrested on the basis of the statement made by Mrs. Vandana wife of the deceased. The brick kiln, where the deceased was allegedly killed, belonged to Constable Suresh Bhosale. It is stated by Mrs. Vandana, who has been examined as P.W. 2, that her husband deceased was taken from his residence by Constable Suresh Bhosale as there was urgent work at the brick kiln. Thereafter he had not returned home. His dead body was found. As such on the basis of last seen theory offence was registered against Suresh Bhosale and he was arrested. It is noted by us that Suresh Bhosale was discharged by Magistrate on the application made by police under Section 169 of the Code of Criminal Procedure on the ground that there was no sufficient evidence against him. However, the 4 prosecution has not gone back from its story that the deceased was taken from his residential house by Suresh Bhosale. Brick kiln belonged to Suresh Bhosale. Clothes which have been seized by police during investigation allegedly at the instance of respondents No.1 and 2 were collected by the deceased from his house to go to brick kiln at the urgent call of Suresh Bhosale. The prosecution was, therefore, under obligation to explain these facts during the course of trial of respondents No.1 and 2. The role of police in the whole episode is highly questionable. The possibility of some sabotage on the part of the police and false implication of respondents No.1 and 2 cannot be ruled out. In fact evidence of P.W. 3 is in the nature of evidence of an accomplice. Hence, corroboration was necessary. There is no material evidence except the evidence of P.W. 3. For the reasons stated by us herein above it is obvious that the evidence of P.W. 3 is highly questionable and it was highly risky on the part of the learned trial Court to record judgment of conviction on the basis of such evidence of doubtful character. We do not think that the learned trial Court could have taken any other view of the matter. Hence, we are not inclined to grant leave to the State for filing appeal against the said judgment and order. The application is, therefore, rejected. The appeal be registered and be shown dismissed for statistical purposes. JUDGE JUDGE RR..