1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application (APPA) No.206/2010 [State of Maharashtra .vrs. Prabhakar Arjun Khandalkar and ors. ] ................................................................................................................................................................... Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ................................................................................................................................................................... CORAM : A.P. LAVANDE & P.D. KODE, JJ. DATE OF RESERVING THE ORDR : 06.08.2010 DATE OF PRONOUNCING THE ORDER : 11.08.2010 Heard Mrs. K.S. Joshi, learned APP for the appellant/State. The appellant/State seeks leave for preferring an appeal against judgment and order of acquittal dated 30.12.2009 passed by learned Ad-hoc Additional Sessions Judge, Pandharkawada in Sessions Trial No.82/2003 acquitting respondent nos.1 to 9 for offences under Sections 147, 148, 307 r/w Sec. 149 and Section 324 r/w Sec. 149 of the Indian Penal Code. All the respondents were charge sheeted by Maregaon Police Station for commission of such offences as a result of investigation of Crime No. 58 of 2003 registered upon the information given by Pravin 2 PW1 regarding incident of assault upon his father Madhavrao Balki PW7 in the courtyard of their house on 24.09.2003 in between 4 and 4.15 p.m. by means of stick. It was the prosecution case that Madhavrao Balki PW7 is leader of one of group of Congress Party, while respondent no.1 Prabhakar is leader of another group of Congress Party in village Lakhapur, taluka Maregaon, district Yavatmal. On 24.09.2003 for visarjan of Lord Ganesh, a procession of Navyuvak Ganesh Mandal of respondents was going on. At that time, respondent no.3 was breaking crackers in hand. He was suggested to break the same on the ground. On the same day at about 4 to 4.15 p.m. respondents holding sticks entered in the house of Madhaorao Balki PW7. They dragged PW7 in courtyard and started assaulting him with sticks on head and other parts of his body. PW7 sustained grievous bleeding injuries and become unconscious. Many villagers, PW1 and his brothers rushed to the spot and upon seeing them , respondents went away. The injured PW7 was referred to Rural Hospital, Maregaon and was examined by Dr. Birthariya PW8. PW7 was admitted at the said hospital for 8 days. Meanwhile, PW1 has lodged information about the incident upon which the crime was registered and 3 investigation was taken up by H.C. Kanake. Respondent nos. 1 to 5 and 7 sent to Maregaon Hospital, were examined by Dr. Birthariya PW8. At the completion of the investigation, respondents were charge sheeted by Maregaon Police Station for commission of offences under sections, 147, 148, 149 read with Section 307 and 149 read with Section 324 of IPC. The perusal of the record reveals that prosecution had examined in all 9 witnesses in support of the prosecution case. The defence of the respondents was that due to political rivalry, they were falsely implicated in the case. The same reveals that the trial Court came to the conclusion that the prosecution had failed to prove that respondents nos. 1 to 9 were members of unlawful assembly and were armed with sticks and in prosecution of common object of unlawful assembly had attempted to commit the murder of Madhaorao Balki PW7 and/or voluntarily caused hurt to PW7 by means of weapon. The same reveals that the trial Court reached to such a conclusion after duly assessing the evidence of Pravin PW1, his brother Jagdish PW2, Rajesh PW3, Mahadeo PW4 and Madhaorao PW7. The trial Court had assessed the evidence in light of the evidence of the investigating personnel H.C. Kanake and API 4 Tripathi PW9. The trial Court has also taken into consideration the evidence of Dr. Birthariya PW8. The trial Court came to the conclusion that statement of Madhaorao PW7 was not recorded during the investigation. API PW9 has stated that he had not recorded the same as H.C. Kanake had already recorded statement of the said witness. He also admitted that he did not receive the said statement. H.C. Kanake did not state that he recorded the statement of PW7. It reveals that the trial Court took into consideration the disparity of account of assault deposed by PW1, PW2, PW3 and PW7. It reveals that PW7 has given specific account that respondent no.1 had caught hold of his collar while respondent nos.2 and 4 caught hold of his hand and dragged him in front of his house, the villagers and his sons gathered at the said place due to hue and cry. Respondent no.1 beat him with a stick on head and he became unconscious. PW1 gave general account of assault by stating that all the respondents assaulted his father by means of sticks. The account of assault deposed by PW2 being in nature of improvement, was brought on the record. The version of Rajesh PW3 that 20 to 25 persons had gathered in the courtyard of PW7 was belied by his evidence that there is accommodation for 6 to 7 persons in the said 5 courtyard. It reveals that detail reasons are recorded by the trial Court in paragraph no. 13 of the judgment impugned for not accepting the evidence of the prosecution witnesses on the count of variance occurring therein. Thus considering the evidence adduced by the prosecution and the reasoning given thereon by the trial Court, the view taken cannot be said to be perverse or contrary to the record. The same appears to be a probable view. In view of the same, we are of the considered opinion of no case being made out for granting leave to prefer an appeal as sought by the appellant/State. Hence, we dismiss the application. JUDGE JUDGE halwai