{1} Cri. Application No.2279/2011 drp IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.2152 OF 2011 The State of Maharashtra APPLICANT VERSUS Vasant Shivbahadur Shrivas RESPONDENT ....... Mrs.S.D.Shelke, APP for applicant State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 2 nd AUGUST 2011 ORAL ORDER (PER A.V.POTDAR, J.) : 1. By the present application, u/s 378 (1) (b) of the Criminal Procedure Code, the applicant-State seeks leave to file appeal challenging the judgment dated 01.03.2011 passed by Sessions Judge, Jalna, in Sessions Case No.107/2008 thereby acquitting the respondent-accused from the offence punishable u/s 302 of the Indian Penal Code. 2. Prosecution story, in short, is that the respondent- accused and deceased Suresh are the real brothers, and were working as SRPF Barbers at Jalna. On 06.06.2008 at 23.30 hours, on hearing shouts of the deceased, the prosecution witnesses had rushed there and witnessed that neck of the deceased was slit and blood was oozing from the injury. Thereafter, he was shifted to the hospital, however, the medical officer declared him dead. On the {2} Cri. Application No.2279/2011 basis of the statements of the witnesses an offence came to be registered against the respondent-accused at Crime No.117/2007 for an offence punishable u/s 302 of the Indian Penal Code and accordingly he was put under arrest and clothes on his person, which were stained with blood, came to be seized. 4. Prosecution case, rests on circumstantial evidence, as there is no eye witness to the incident. Prosecution, in support of its case, examined in all 12 witnesses. After appreciation of the evidence on record, the trial court acquitted the respondent- accused of the offence with which he was charged. 5. Trial court found that the first circumstance of oral dying declaration, which crept up in the evidence of PW-5 Shantaram Shinde, cannot sustain against the respondent- accused in view of the recitals of the complaint to the effect that somebody had slit the throat of the deceased and also in view of the evidence of Prosecution Witness Raju Sampal, who had immediately rushed after hearing cries of the deceased and who had called PW-5 at the spot. Prosecution witness Raju states that the deceased had only uttered the words “Save Save” and nothing more than that, which evidence falsifies the circumstance of oral dying declaration. The trial court further found that the second circumstance of accused last seen together with the deceased, as crept up in the evidence of PW-3 Vilas, also cannot sustain against respondent accused, in view of the fact that though PW-3 Vilas {3} Cri. Application No.2279/2011 claims that he had seen the accused and deceased taking meal together at the relevant time, however he did not disclose the incident to anybody till his statement was recorded by the police after three months of the incident. Therefore, the trial court found that the prosecution could not establish even the circumstance of accused last seen together in the company of the deceased. Trial court further found that the circumstance of finding of blood on the clothes of the accused also would not be of any avail to the prosecution as the prosecution witnesses themselves have deposed that when the deceased was being shifted to hospital, the accused had also lifted him to take into an ambulance and accompanied the deceased in the ambulance and in that process the blood of the deceased had fallen on the clothes of the accused and hence the trial court found that the circumstance of finding of blood on the clothes of the accused cannot incriminate the accused. Additionally, in the cases of circumstantial evidence, motive plays a very important role, however, the trial court found that the prosecution could not establish the motive behind the alleged crime. The trial court found that PW-2 Ramkali, wife of the deceased had stated that the relations between the accused and deceased were cordial even on the day of the incident and hence trial court found that there is no evidence to show as to what led the accused to slit the throat of his brother i.e. deceased. Thus, even on the point of motive, the trial court negatived the prosecution case. Further the trial court found that though Finger Print Expert was called at the spot, yet neither was he examined {4} Cri. Application No.2279/2011 before the trial court nor the expert report was tendered on record. Though dog squad was summoned, yet the report of the dog squad is also not produced on record. Considering the above aspects, the trial court found that the prosecution has utterly failed to establish the offence against the respondent-accused beyond reasonable doubt and hence acquitted the respondent-accused of the charge of murder. 6. We have heard learned APP for applicant State. We have also perused the impugned judgment so also the record and proceedings received from the trial court. Upon such perusal, according to us, the view taken by the trial court is a possible view to be taken on the basis of evidence on record. We do not find any fault, much less perversity in the findings arrived at by the trial court while acquitting the respondent-accused of the charge of offence punishable u/s 302 of the Indian Penal Code. The prosecution has failed to establish the charge of murder against the respondent-accused. 5. On careful consideration of the evidence on record, according to us, this application is devoid of any merit. Consequently, the present application, being sans merits, stands dismissed. Leave refused. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/B11/criapln2152-11