1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPLICATION NO.3945 OF 2009 The State of Maharashtra. APPLICANT V E R S U S Udhav s/o Vishwanath Marde and others. RESPONDENTS Mr. Shaikh, learned A. P. P. for the applicant. CORAM : S. B. DESHMUKH & S. S. SHINDE, JJ. DATE : 27TH APRIL, 2010. PER COURT :- 1. We heard learned A. P. P. Mr. Shaikh for the applicant. By way of this application applicant-state seeks leave of this Court to file appeal under section 378 (1) (b) of the Code of Criminal Procedure. 2. From the record, it has been revealed that criminal application No.3946/2009 was filed on behalf of the State seeking condonation of around two days delay occurred in filing Criminal Application No.3945/2009 for leave to appeal. This Court heard learned A. P. P. in Cri. Appln No.3946/2009 and condoned delay of two days. Respondents in that application were not heard. 3. Present criminal application as noticed by us in foregoing paragraph is for leave to appeal filed on behalf of the State. Record is 2 available. Learned A. P. P. took us through judgment of the learned trial court. According to him, there is ample material on record for conviction of the respondents. Indisputably, First Information Report in the case on hand was lodged by claimant Ramrao Bapurao Kidile somewhere on May 29, 2007. Based on the First Information Report Crime No.105/2007 was registered at Chakur Police Station for offence under section 147, 148, 149, 324, 336, 452, 436, 427, 323 and 504. Among these offences, offence under section 436 i.e. mischief by fire or explosive substance with intent to destroy dwelling house, is cognizable, non-bailable, non-compoundable and triable by Court of Sessions. Offence under section 452 is house tress pass, after preparation for hurt, assault for wrongful restrain. It is also cognizable, non-bailable, non- compoundable however triable by Judicial Magistrate First Class. We have considered nature of other offences registered against respondents at the instance of complainant Ramrao. According to complainant, alleged incidence has taken place on May 28, 2007 around 07.30 p.m. The complainant along with his son Sanju, wife Lalita, daughter-in-law Shakuntala, sister Gurbas and children were very well present at his house. All of them heard shouts of quarrel near Mahadev Temple of the village of the complainant Ramrao, rushed to the Mahadev Temple. He found accused Uddhav, Sanju, Pandu, Laxman, Vitthal, Ishwar, Suryabhan, Pandu, Anant, Venkat, Rajkumar and Shesherao who were pelting stones towards Mahadev Temple. They were pelting stones from the house of one Pandu Gazile. The complainant inquired as to why respondents/accused were pelting stones. According to 3 complainant one of the respondent Uddhav threw a stone which hit on knee of the left leg of the complainant. Complainant was also assaulted by Uddhav. 4. To bring home the guilt, on behalf of the prosecution, around 7 witnesses were examined. Among these seven witnesses, P.W.1 Dr. Sudhir Chavan Exh.62 is Medical Officer. Evidence of P.W.3 Bhimrao, P.W.5 Ishwar Exh.80 and P.W.6 Mahadev is relevant. Informant P.W.4 Ramrao is also examined at Exh.78. Thus P.W.3 Bhimrao, P.W.4 Ramrao, P.W.5 Ishwar and P.W. 6 Mahadev are material. 5. Trial Court appreciated the evidence of these star witnesses i.e. P.W.3, 4, 5 and 6. Trial Court has also taken a note of the fact that counter case had been registered against the complainant Ramrao and others from his group. Such counter case was investigated, charge sheet was filed. It being case triable by Sessions Court. Said case was committed to the Court of Sessions. It was Sessions Case No.116/2007. From the judgment of the trial Court, it appears that trial court has taken a note of the fact that P.W.3 Bhimrao was accused in that case along with other accused persons. Same is the case with P.W.4 Ramrao-informant. P.W.5 examined on behalf of the prosecution is Ishwar. P.W. 5 Ishwar seems to be not arrayed as accused in the counter case. However, evidence has been appreciated by the trial court. We find such discussion in paragraph No.13. His evidence is not accepted by the trial court . Trial court observed that his evidence does not inspire confidence. 4 According to trial court, evidence of P.W.5 is not in consonance with medical certificate placed on record on behalf of the prosecution. Trial Court found that oral testimony of P.W.5 Ishwar is not being supported by the medical evidence. According to trial court, evidence of PW 5 Ishwar does not help the prosecution. 6. While appreciating evidence of P.W.6 Mahadev, trial court has observed that evidence of said witness P.W.6 cannot be sufficient to record a finding that respondents/accused persons have formed unlawful assembly. 7. Evidence of PW 4 Ramrao-informant is not accepted by the trial court for lack of corroboration. Trial court has observed in relation to PW 3 Bhimrao, that family members of Bhimrao have not been examined on behalf of the prosecution. Thus evidence of PW 3 and PW 4 is has not accepted by the trial court for valid reasons. 8. Mr. Shaikh, learned APP fairly concedes that Sessions Case No. 126/2007 has been ended in acquittal. It was counter case. Said acquittal was also challenged on behalf of the applicant-State before this Court. It was criminal application No.3978/2009. After hearing learned APP that application came to be dismissed by this court on 11.02.2010. 9. In our view, view taken by the trial court,is based on the material 5 brought on record. Reasoning of the trial court cannot be said to be perverse. We do not find substance in the criminal application for leave to appeal. 10. Criminal application accordingly stands dismissed. No order as to costs. ( S. S. SHINDE ) (S. B. DESHMUKH ) JUDGE JUDGE --- aaa/3945.09