5. cri apeal 1265-13.doc
RMA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1265 OF 2013
Chandraprabha Vasant Mhaske .. Appellant
Versus
Ganesh Marya Waghe & Ors. .. Respondents
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Appearances
Mr. Pawan P Mali Advocate for the Appellant
Mr. H.J. Dedhia APP for the State
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CORAM : SMT. V.K. TAHILRAMANI &
SANDEEP K. SHINDE, JJ.
DATE : JUNE 13, 2017.
ORAL JUDGMENT [PER SMT. V.K. TAHILRAMANI, J.] :
1. This appeal has been preferred by the appellant - original complainant against the Judgment & Order dated 3.9.2012 passed by the learned Addl. Sessions Judge, Kalyan in Sessions Case No. 267 of 2007. By the said Judgment & Order, the learned Sessions Judge acquitted the respondents
- original accused Nos. 1 to 5 of the offences under Sections 396 and 397 of IPC.
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5. cri apeal 1265-13.doc
2. The prosecution case briefly stated is that on 10.9.2007 at about 10.30 p.m., the complainant i.e PW 1 Chandraprabha was watching television in the house. Her husband Vasant (deceased) was sleeping on the Osari outside the house. At about 10.45 p.m., PW 1 Chandraprabha heard shouts of her husband. She came out and she saw four persons assaulting her husband with wooden sticks. Those persons snatched her ornaments. One of the persons asked her for key of the cupboard. PW 1 Chandraprabha refused to give the key on account of which one blow of sickle was given on her back. The key was forcibly taken away from her and Rs. 2000/- were taken away from the cupboard. Thereafter the persons ran away. Vasant, the husband of PW 1 Chandraprabha was taken to hospital where he expired. It is the prosecution case that respondent Nos. 1 to 5 were the persons who had assaulted the husband of PW 1 Chandraprabha and committed dacoity.
3. PW 1 Chandraprabha is the only eye witness in the jfoanz vkacsjdj 2 of 5 ::: Uploaded on - 14/06/2017 ::: Downloaded on - 15/06/2017 01:11:49 :::
5. cri apeal 1265-13.doc present case. She has only identified respondent Nos. 3 to 5 in test identification parade. Thus, as far as respondent Nos. 1 and 2 are concerned, there is no material to connect these respondents with the incident. As far as identification of respondent Nos. 3 to 5 in test identification parade and in the Court is concerned, PW 1 Chandraprabha has admitted that they were shown to her in the lockup. PW 1 Chandraprabha has categorically admitted in para 7 of her evidence as under:-
"7. It is correct to say that the police pointed out to me the accused in the lock-up when I was called in police station on 17/09. It is correct to say that the police also told me that these are the same persons who assaulted my deceased husband Vasant and took away ornaments and sarees."
It is an admitted fact that the identification parade took place after 17.9.2007. In view of the admissions given by PW 1 Chandraprbaha, the identification of respondent Nos. 3 to 5 by PW 1 Chandraprabha before the Court cannot be relied upon. There is no other cogent and clinching evidence on jfoanz vkacsjdj 3 of 5 ::: Uploaded on - 14/06/2017 ::: Downloaded on - 15/06/2017 01:11:49 :::
5. cri apeal 1265-13.doc record to connect any of the respondents to the crime. Looking to the evidence on record, we find that conclusion arrived at by the learned Sessions Judge is a reasonable and possible view.
4. The plenitude of power available to the Court hearing an appeal against acquittal is the same as that available to a court hearing an appeal against an order of conviction, but, however, there are a plethora or decisions of the Supreme Court which hold that the court hearing an appeal against acquittal, will not interfere solely because a different possible view may arise on the evidence. The Supreme Court in the case of C. Anthony Vs. K.G. Raghavan Nair 1 has observed that while hearing an appeal against an order of acquittal, if two reasonable conclusions can be reached on the basis of evidence on record, the appellate court should not disturb the finding of the trial court. We have already observed that the view taken by the learned Sessions Judge is a reasonable and possible view. In this view of the matter, we are not 1 (2003) 1 SCC 1 jfoanz vkacsjdj 4 of 5 ::: Uploaded on - 14/06/2017 ::: Downloaded on - 15/06/2017 01:11:49 :::
5. cri apeal 1265-13.doc inclined to interfere in the judgment and order of acquittal. In view of the above, the appeal is dismissed.
[ SANDEEP K. SHINDE, J. ] [ SMT. V.K. TAHILRAMANI, J. ]
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