1 crap4240.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 4240 OF 2010 The State of Maharashtra ...Applicant VERSUS Bhagwan Gopinath Parhar ...Respondent ..... Smt. Y.M.Kshirsagar, advocate for applicant Shri N.V.Gaware, advocate for respondent sole ..... CORAM : SHRIHARI P.DAVARE, J. DATED : 16 th June, 2011 PER COURT : 1 Heard learned counsel for the parties. 2 This is an application preferred by the applicant/State seeking leave to file appeal against the judgment and order of acquittal, rendered by learned Judicial Magistrate, First Class, Karjat, in R.T.C. No. 69 of 2006, on 22.4.2010, acquitting the 2 crap4240.10 respondent (original accused), for the offences punishable under Sections 324, 504, 506 (I) of the Indian Penal Code. 3 I have perused the impugned judgment and order dated 22.4.2010, as well as perused the record and proceedings, and more particularly, depositions of the witnesses, with the assistance of learned counsel for the parties. 4 The prosecution case unfolded by the complainant Sanjay Sonba Potare is as follows :- On 2.4.2006 at 9.00 a.m. when the complainant was cultivating and levelling his field with the help of tractor of Javed Abbas Shaikh, the accused came there at 12.30 p.m. and asked the complainant that his soil should not come towards his boundary mark and if soil comes towards his boundary mark, then he would lodge prosecution against the complainant. Hence, the complainant stated to the accused that he would make efforts to see that the soil would not come towards the boundary mark of the accused. However, thereafter the accused started abusing to the complainant. Hence, the complainant pushed the accused and the accused caused injury by means of sickle on the wrist of the complainant. Hence, nephew of the complainant, namely Rajendra came there and the 3 crap4240.10 complainant narrated the incident to him. Thereafter, the complainant came along with his nephew and lodged the report at Karjat police station. 5 To substantiate the charges levelled against the accused, the prosecution examined as many as 5 witnesses as follows :- PW1 Satish Kisan Sonmali, Panch to seizure panchanama PW2 Sanjay Sonba Potare, Complainant PW3 Javed Abbas Shaikh, Eye witness PW4 Ramdas Bhau Dalvi, Investigating Officer PW5 Dr. Subhash Bhagwan Shinde, Medical Officer. 6 After scrutinizing the testimony of PW2 Sanjay Potare i.e. the complainant, the learned Trial Judge observed that there are vital omissions, which were duly proved by confronting them to the investigating officer i.e. PW4 Ramdas Dalvi. Moreover, it is also observed by the learned Trial Judge that the complainant admitted in his cross-examination that he was present at the eastern side; whereas the tractor was on the western side of the field. However, the eye witness PW3 Javed Shaikh during his cross-examination admitted that he was present towards the eastern side. Hence, learned Trial Judge observed that the complainant PW2 Sanjay 4 crap4240.10 Potare and PW3 Javed Shaikh testified in respect of the tractor contrary to each other and both are not sure as to where exactly the tractor was at the time of incident. Moreover, the learned Trial Judge also observed that another eye witness Rajendra i.e. nephew of the complainant was present at the time of incident, but prosecution has not examined the said material eye witness for the reasons best known to the prosecution. Consequently, the learned Trial Judge further observed that the presence of eye witness PW3 Javed Shaikh at the place of incident appears to be doubtful and it is further suspicious whether really he has witnessed to the occurrence of the incident and the said observations apparently cannot be faulted with. 7 Moreover, it is also admitted position that there is no recovery of alleged sickle at the instance of the accused under memorandum panchanama under Section 27 of the Indian Evidence Act. Moreover, the seizure of the said sickle, as stated by the investigating officer PW4 Ramdas Dalvi is doubtful, since the said panch is also habitual panch, who acted as panch in various cases, and the observations made by the learned Trial Judge in that respect also are not out of place. 8 Coming to the testimony of PW5 Dr. Subhash Shinde, 5 crap4240.10 who has stated that he examined the complainant Sanjay Potare and found lacerated wound over left forearm lower 1/3 rd side, Palmar aspect, caused by hard and sharp substance and the said injury was caused within 24 hours and was simple injury. Accordingly, he issued the M.L.C. report on 2.4.2006, which is produced at Exh. 30. However, in the cross-examination, he stated that if a person cuts the fodder with the help of axe, then the injury mentioned in Exh. 30 can be possible. 9 Moreover, PW2 Sanjay Potare while depositing before the court stated that the doctor applied stitches to his injury, but Exh. 30 does not show that PW5 doctor applied any stitches. Moreover, PW5 Dr. Subhash Shinde nowhere stated in his deposition that he applied any stitches to the injury of the complainant. 10 Having the comprehensive view of the matter, it is apparent that there are variances in the depositions of prosecution witnesses and it is doubtful whether witness Javed was present at the time of occurrence of the incident and whether really he had witnessed the said incident, and the testimonies of prosecution witnesses do not appear to be reliable and trustworthy, and hence, there is no consistent, legal and incriminating evidence against the accused, and therefore, learned Trial Judge rightly acquitted the 6 crap4240.10 accused and no interference therein is called for in the appellate jurisdiction. 11 In the circumstances, after scrutinizing and appreciating the evidence on record, the view adopted by the learned Trial Judge while acquitting the accused is a possible view and there is no glaring defect therein and the said view does not appear to be perverse and the reasoning given therefor cannot be faulted with, and hence, present application deserves to be rejected. 12 In the result, present application, which is sans merits, stands dismissed. Leave to file appeal is refused. R. and P. be sent back to the concerned court. (SHRIHARI P. DAVARE), JUDGE. dbm/crap4240.10