[-1-] IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLN.NO.2014 OF 2007 IN CRI.APPEAL NO. OF 2007 The State of Maharashtra ..Applicant Vs. Appasaheb Sampat More and Anr. ..Respondents ... Mr.V.B.Konde-Deshmukh APP for Applicant-State Mr.Sachin V.Dhakephalkar for Respondent Nos.1 & 2 ... CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. DATE : APRIL 17, 2008 DATE : APRIL 17, 2008 DATE : APRIL 17, 2008 P.C. P.C. P.C. 1. The Applicant-State has preferred this application for leave to appeal against the acquittal of the Respondents-accused. 2. By judgment and order dated 15.5.2006 passed in RCC No. 47 of 2003, the learned Judicial Magistrate, F.C.Mohol has acquitted the Respondents-accused of the offences under Sections 325, 323, 504, 506 r.w. 34 of IPC. 3. I have heard the learned APP for the State. I have perused the evidence which has been produced by him as well as the impugned judgment and order. [-2-] 4. It is the prosecution case that there was a dispute between the complainant and the accused persons in respect of taking water from the well. The case of the complainant is that when she went to take water from well, the accused persons abused and threatened her and then they assaulted her by means of fist and kick blows, due to which, she sustained fracture injury to the middle finger of right hand. 5. As far as the offence under Sections 504 and 506 of IPC is concerned, the complainant has stated in her complaint that she was abused by the accused. However, in her deposition before the Court, the complainant was totally silent on this aspect of accused persons giving abuses to her. As far as giving threat is concerned, neither in the FIR nor before the Court any mention has been made by the complainant that she was threatened by the accused persons. In this view of the matter, I am of the opinion that the learned Magistrate has rightly acquitted the respondents-accused of the offence under Sections 504 and 506 read with Section 34 of IPC. [-3-] 6. It is the prosecution case that only one person was injured in the incident i.e. complainant. In the complaint, the complainant has not stated anything about sustaining any grievous injuries. For the first time, she deposed in the Court that her right middle finger was broken and thus, she had sustained fracture injuries. In this regard, Medical Officer P.W.4 Dr.Jayashri Dhavale deposed that on 25.2.2003 she was working as Medical Officer and by that time, she examined complainant and found the injury of contusion as mentioned in the certificate Exh.27 issued by her in this regard. She deposed that patient was advised by her to take X-ray photograph. But, since this facility was not available in the rural hospital, the patient was advised to take x-ray from outside and accordingly, she had taken x-ray at one private hospital. Dr.Dhavale deposed that thereafter, patient came to her with the report of x-ray and on perusal of the report, she certified that patient had sustained fracture injuries to her right hand middle finger. Thus, it appears that the certificate issued by the P.W.4 was based upon the x-ray photograph taken by the Private Medical [-4-] Practitioner. Admittedly prosecution has not examined the private Practitioner who has taken x-ray photograph of the complainant. Thus, in absence of his evidence, the opinion of P.W.4 based on the x-ray report cannot be accepted. In such case, the prosecution has also failed to bring home the guilt of the accused for the offence under Section 325 read with Section 34 of IPC. The complainant and the accused persons are relatives. There was long standing dispute between them in respect of taking water from well. It appears that complainant had motive to falsely implicate the accused persons. The complaint was initially registered as N.C. Case No. 235 of 2003 and thereafter after complainant produced the medical certificate showing fracture, the FIR came to be registered. Looking to the evidence on record, the learned Magistrate acquitted the Respondents-accused persons. In my view, the view taken by the learned Magistrate is a reasonable and possible view, hence, no interference is called for. 7. In this view of the matter, application for leave to appeal is rejected. [-5-] [SMT.V.K.TAHILRAMANI, J.] [SMT.V.K.TAHILRAMANI, J.] [SMT.V.K.TAHILRAMANI, J.]