1 Criminal Appl.No.5245 of 2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.5245 OF 2010 The State of Maharashtra APPLICANT VERSUS Dinesh Santosh Patil and others RESPONDENTS Mr.S.K.Tambe, learned A.P.P. for the applicant. Mr.R.N.Dhorde, learned counsel for the respondents. (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 10/06/2011 PER COURT : (Per A.V.Potdar,J.) 1. By the present application u/s. 378(1(3)(b) of The Cr.P.C., the State/Prosecution seeks leave to prefer an appeal against the order of acquittal passed by the Additional Sessions Judge, Dhule in Sessions Case No.100/2008, acquitting the respondents for an offence punishable u/s.307, 323, 504, 506 r/w. 34 of The IPC vide its judgment and order dated 31/07/2010. 2. We have heard learned A.P.P. for State. Perused the documents on record. 3. The trial arises out of the private complaint lodged by the complainant Arvind Chaudhary before learned J.M.F.C. Shirpur on 09/08/2005, for the offences punishable u/s. 307, 323, 504, 506 2 Criminal Appl.No.5245 of 2010 r/w. 34 of The IPC about the alleged incident dated 19/06/2005. It is alleged that Grampanchayat elections of village Kalamsare, Tal.Shirpur, Dist. Dhule were scheduled on 19/06/2005. The said election was contested by the brother of complainant namely Ravindra. Voting in the said election commenced around 8 to 8.30 a.m. It is alleged that the respondents were campaigning to vote Mukesh Vijay, which was objected by the complainant Arvind. Due to these objections, respondent no.1 assaulted him with kick blows on his waist, due to which complainant fell down. Respondents no.2 to 4 rushed towards the complainant and assaulted with fists and kick blows on his chest. Complainant was abused in filthy language. Respondent no.1 Dinesh who, at the material time was serving as a J.M.F.C. Bhusawal, tried to strangulate neck of the complainant with wire rope and attempted to kill him, but was rescued by P.W.No.3 Tumdusing, father of the complainant and Yashwant P.W.No.4, who rushed to the spot and separated the complainant. It is alleged that the complainant lodged the report of the incident in the police station and requested to register the offence, but the police registered non cognizanble case no.211/2005 for an offence punishable u/s. 323, 504, 506 r/w. 34 of The IPC, but not taken further action. Hence private complaint came to be lodged before J.M.F.C. on 09/08/2005. On committal of the case to the Court of Sessions, charge was framed at Exh.14 and the parties were directed to lead the evidence. On appreciation of the evidence laid by the complainant, learned Lower Court pleased to acquit all the respondents, against which State has 3 Criminal Appl.No.5245 of 2010 approached this Court seeking leave to file appeal against acquittal. 4. Perusal of the record of the Lower Court indicates that the judgment of acquittal was passed on the grounds that in the private complaint lodged before the learned J.M.F.C. on 09/08/2005, there is delay of about 2 months in filing the complaint about the incident dated 19/06/2005, which is not explained at all in the complaint before learned J.M.F.C. except mentioning that police failed to take appropriate action against the respondents herein. Learned Trial Court has also taken a note that complainant had not produced the report lodged by him in the police station, of which cognizance was not taken by the police and recorded non cognizabgle case against the respondents. Secondly, it is observed by the learned Trial Court that the report lodgedd by the complainant, which was not produced by him, was produced by the respondents herein and is at Exh.33, and learned Trial Court drew the presumption u/s. 114(g) of The Evidence Act that the report was not favourable to the complainant. It is specifically observed by the learned Trial Court that perusal of that report, clearly shows that names of respondent no.2 and respondent no.5 were not appeared in the said report, which is in consistent with the facts disclosed in the private complaint. It is further observed by the learned Trial Court that the report Exh.33 do not disclose that witness Tumdusing P.W.No.3 and Yashwant P.W.No. 4 separated the quarrel and rescued the complainant, on the contrary, even their names do not appear in the report at Exh.33 4 Criminal Appl.No.5245 of 2010 which is in consistent with the facts pleaded in the private complaint. It is further observed by the learned Trial Court that perusal of the said report do not disclose the way and manner in which the incident had occurred as the report is silent on the point that accused no.1 Dinesh attempted to strangulate the neck with wire, which is an improvement and possible manipulation in the private complaint. It is further observed by the learned Trial Court that the copy of the chapter case was produced by the respondents at Exh.34 about the alleged incident wherein name of respondent no.1 Dinesh and respondent no.5 Rohidas did not appear. This chapter case is in respect of the incident occurred on 19/06/2005. Considering these aspects, learned Lower Court pleased to acquit the respondents from the charges framed against them. 5. On perusal of the record and reasoning recorded by the learned Trial Court while acquitting the accused, we do not find any perversity or illegality in the conclusion which require any interference at the hands of this Court. We are of the considered opinion that the view taken by the Trial Court is the only probable and possible view to be taken on the basis of evidence before the learned Trial Court. In view of this, we are of the considered opinion that the application sans any merit, hence summarily dismissed. (A.V.POTDAR, J.) (P.V.HARDAS, J.) khs/JUNE 2011/cri.appl.5245-10