(-1-) MGN IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, CRIMINAL JURISDICTION CRIMINAL APPLICATION NO.513 OF 2008 IN CRIMINAL APPEAL NO. OF 2008 The State of Maharashtra ..Applicant Vs. Jaya Yuvraj Dabhade & Anr ...Respondents Ms. Usha Kejariwal, APP for the Applicant State. CORAM: F.I. CORAM: F.I. CORAM: F.I. REBELLO REBELLO REBELLO & R.Y. GANOO, JJ. R.Y. GANOO, JJ. R.Y. GANOO, JJ. DATED: 25TH JULY 2008 DATED: 25TH JULY 2008 DATED: 25TH JULY 2008 P.C.: P.C.: P.C.: . State has come in Appeal against the order of the 1st Ad hoc Additional Sessions Judge, Kolhapur who by his judgment dated 15th November, 2007 acquitted the accused of the offence punishable under Section 302, 301 read with Section 34 of the I.P.C. 2. On behalf of the State learned A.P.P. submitted that the evidence of the child witness P.W.7-Nakusha Yuvraj Dabhade could not have been rejected by the learned Court. We have perused the evidence of the said child witness. The questions put in examination in chief read as under:- Question 40: What you did thereafter? Answer : I was told some thing by (-2-) prosecutor Smt. M.B. Patil. Question 41: What was told to you? Answer : I was told that my mother committed murder of my father. . There was no cross examination. 3. The law is now well settled that if the statement of the witnesses recorded under Section 161 of Cr.P.C.are read to them or the witness are explained to the contents of their statement before the witness deposes in the Court such evidence should not be considered. In our opinion, however, there is nothing on record from the evidence of P.W.7 to show that the statement of the child witness was read to her. At the highest all that can emerge from this evidence is that the child witness was informed before she had come to depose that her mother had committed murder of her father. The child was aged 11 years. We, therefore, do not agree with the learned Judge that this evidence ought to have been rejected for the reason given by the learned Judge. 2. We, have ourselves considered the evidence. From the evidence of P.W.7 what has come on record is that the presence of only the accused No.1 and (-3-) that the death was occasioned on account of the object being hit by accused No.1 on the deceased. The presence of the accused No.2 at the time of offence or when the body was dragged to the well and thrown in the well has not been deposed to by this witness. This witness stated that she followed her mother to the well. If this be considered then the purported eye-witness has not deposed to the presence of accused No.2 at the time of offence or at the time of disposal of the body. . The learned Judge has noted that the accused is a physically frail and having a feeble body. Deceased weighed 70 Kgs. The body was put in gunny bag and a stone tied of 30 Kgs. to 40 Kgs. and the gunny bag was dragged to the well and then threw in the well. The learned Judge held on considering the evidence that it is improbable that the accused No.1 could have dropped the body in the well to destroy the evidence. 3. Can the evidence of the child witness P.W.7 be relied upon. It is in this context though we have rejected the reasoning given by the learned Judge for rejecting the evidence of P.W.7 in our opinion it would not be safe to convict the accused No.1 solely based on the evidence of this witness. The prosecution was fully aware of the statement recorded of this witness under Section 161 of the (-4-) Cr.P.C. Nevertheless they pressed for a charge against both accused No.1 and accused No.2. 4. The witness has not deposed against accused No.2 and considering the disposal of the body and the conclusions by the learned Judge it will not be possible to accept the evidence of the witness. 5. If the evidence of the child witness is not accepted, then the other evidence is circumstantial evidence. The prosecution has been unable to establish the chain. Firstly, motive has not been proved nor the purported illicit relationship between the accused No.2 and accused No.1. In so far as Accused No.2 is concerned, apart from the seizure of clothes there is no evidence. The blood group of the accused No.2 was not established. Even otherwise his presence on that day is relevant considering the evidence of P.W.7. In so far is Accused No.1 is concerned the learned Judge has held that the evidence of Prakash Chougule, the Panch as doubtful. P.W.10 Dr. Nanavare who conducted the Post-mortem has stated that he did not find any blood on the shirt of the deceased. This considering the evidence of P.W.7 of the deceased being hit by heavy object. 6. In our opinion, therefore, the ultimate conclusion arrived at by the learned Judge cannot be (-5-) faulted. Even otherwise this is an application seeking leave to appeal. While considering the grant of an application for leave to appeal this Court must consider the material on record and the judgment of the trial Court. If the Court comes to the conclusion that the judgment otherwise cannot be faulted and merely because this Court may take a different view by itself cannot be a ground to grant leave to appeal. 6. Considering the evidence, in our opinion no case is made out to grant leave to appeal. Hence application rejected. (R.Y.GANOO, J.) (R.Y.GANOO, J.) (R.Y.GANOO, J.) (F.I.REBELLO, (F.I.REBELLO, (F.I.REBELLO, J.) J.) J.)