Chandraprabha Vasant Mhaske vs Ganesh Marya Waghe And Ors
2017 Latest Caselaw 3113 Bom

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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

                                                  ...................
            Appearances
            Mr. Pawan P Mali Advocate for the Appellant
            Mr. H.J. Dedhia  APP for the State
                                                  ...................



                              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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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

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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

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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

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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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