1 (APPLN-776-11) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.776 OF 2011 (For leave to file Appeal) The State of Maharashtra ..... Applicant. V/s Kishor Dattatraya Awad ..... Respondent. Smt. V.R. Bhosale, APP for the appellant-State. None for the Respondent. CORAM: V. M. KANADE & A.M. THIPSAY, JJ DATE : 4TH OCTOBER, 2011 P.C.:- 1. The State has filed this criminal application for leave to file appeal being aggrieved by the judgment and order of acquittal passed by the Ad-hoc Additional Sessions Judge, Solapur dated 24/1/2011 in Sessions Case No.77 of 2010. 2. Prosecution case, in brief, is that the deceased Suresh Chandane was residing at Barshi alongwith family members. On many occasions, deceased was in a habit of sleeping in shopping complex known as Chatrapati Shivaji Sankul which 2 (APPLN-776-11) was situated in front of his house. According to the prosecution, the accused had taken objection to the applicant sleeping in the said complex. 3. The incident in question took place on 3/12/2009 and the prosecution case is that since the deceased Suresh did not come home by 10.30 P.M., his sons viz Sidheshwar and Someshwar alongwith their cousin Akash and their friend Yogesh went near the shopping complex in search of the deceased. At that time, they noticed that there was a quarrel going on between the accused and his wife. According to the prosecution, deceased Suresh tried to pacify the accused and asked him not to quarrel with his wife and being annoyed by the intervention of the deceased, the accused caught hold of his neck and lifted him and banged his head on the staircase in front of his grocery shop. The complainant and other witnesses took the accused to the hospital and after he was given treatment, he was brought back to the house in the morning at about 5 a.m. On the next day, family members of the deceased noticed that the deceased was not making any movement and, therefore, he was taken to the hospital where he was declared to be dead. A complaint was filed and the accused was arrested. Charge Sheet was filed. Trial Court acquitted the accused of the offence with which he was charged. 4. Prosecution examined in all 9 witnesses. P.W. 5 - Yogesh and P.W. 3 – Someshwar are two alleged eye 3 (APPLN-776-11) witnesses. Trial Court has disbelieved these two witnesses and held that charge against the accused has not been proved beyond the reasonable doubt. We have gone through the judgment and order of the Trial Court and we have also perused the evidence which is adduced by the prosecution since the notes of evidence are annexed to the leave application. In our view, Trial Court has rightly held that there are several inconsistencies in the statement of P.W.3 and P.W.5 and it has, therefore, rightly discarded the evidence of both these witnesses. Trial Court has observed that there is delay in recording the FIR and no explanation had been given by the prosecution for delay caused in filing the FIR. Trial Court has noted that P.W. 3 – Someshwar had deposed before the Court that he had seen the entire incident. However, evidence of P.W. 5 – Yogesh discloses that P.W.3 was not the eye witness to the said incident. Trial Court has also observed that P.W. 2 – Sidheshwar could not have seen the accused lifting the deceased Suresh since P.W. 3 – Someshwar told him that the deceased was assaulted by the accused. Trial Court has considered the entire evidence on record and has given cogent reasons why it was not possible to rely on the statement of the witnesses or on the material on which reliance was placed by the prosecution. 5. In our view, it is a well settled position in law that High Court, while exercising its powers under section 378 of the Criminal Procedure Code, is not expected to take a different 4 (APPLN-776-11) view and substitute its own view to the view taken by the Trial Court if the finding of the Trial Court is not perverse and if there is no material error committed by the Trial Court in appreciating the evidence on record. In view of this settled legal position, it will not be possible to interfere with the judgment and order passed by the Trial Court. Leave is therefore refused. Appeal does not survive. 6. Application is disposed of. (A.M.THIPSAY, J.) (V.M. KANADE, J.)