1 crap423.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 423 OF 2011 The State of Maharashtra ...Applicant VERSUS Pralhad Tryambak Vishal ...Respondent ..... Shri B.V.Wagh, A.P.P.for applicant Shri S.T.Ghute, advocate for respondent ..... 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, challenging the judgment and order of acquittal, dated 16.10.2010, passed by the learned Special Judge, Osmanabad, in Spl. (Atro) Case No. 6 of 2010, thereby acquitting the respondent (original accused) for the offences punishable under Section 3 (1) (x) of the Scheduled Castes and Scheduled Tribes 2 crap423.11 (Prevention of Atrocities) Act, and under Sections 323, 504, 506 of the Indian Penal Code. 3 I have perused the impugned judgment and order, dated 16.10.2010 as well as perused the R. and P. with the assistance of the learned counsel for the parties. 4 Briefly stated, the facts of the case are that the complainant Ramraje Ganpatrao Pawar is by caste Pardhi and residing at Bharni Building, House No. 1/13, Police Colony, Osmanabad and was serving as Clerk in the office of the Superintendent of Police, Osmanabad. Moreover, the accused also was reportedly working as Office Superintendent in the office of the Superintendent of Police, Osmanabad at the relevant time. It is also alleged that on 23.3.2008 at 11.00 a.m., the complainant with his wife Nanibai and his son Sachin had gone to weekly market at Osmanabad for purchasing vegetables. At that time, the accused, namely Pralhad Vishal also visited the weekly market. Accordingly, the complainant asked the accused why he had sanctioned his leave without pay and has taken a note in his service book, which resulted into damage and the complainant told the accused that he should not behave in such a fashion. Thereupon the accused Vishal got annoyed and abused the complainant on his caste, like, “Pardhada 3 crap423.11 jast maju nakos, tula rastyawar jivant jalun marin, pardhya aplya payrine raha jast udya maru nakos”. Accordingly, the accused abused the complainant in presence of many persons and thereby he was insulted. Hence, the complainant asked the accused not to abuse, but the accused again abused him in filthy language and caught the collar of his shirt and gave one slap on his face and thereby he sustained injury over his face and his clothes were torn. It is also alleged that during the occurrence of the said incident, the complainant, his wife Nanibai, his son Sachin and one Mahaling Dhumal were also present at the said place and they tried to intervene and separated the complainant from the clutches of the accused. Thereafter, the complainant approached the police station and lodged the complaint and same was registered under C.R. No. 23 of 2008. 5 To substantiate the charges levelled against the accused, the complainant examined as many as 7 witnesses as mentioned below :- PW1 Santosh Kokate, Panch PW2 Dr. Jyotsana Dhaware, Medical Officer PW3 Ramraje Pawar, Complainant PW4 Nanibai Pawar, wife of the complainant 4 crap423.11 PW5 Mahaling Dhumal, Eye witness PW6 A.S.I. Mahadeo Garad, who recorded the F.I.R. PW7 Dy.S.P. Sunil Lokhande, Investigating Officer 6 Considering the testimony of PW3 Ramraje Pawar i.e. the complainant, he admitted that on 3.3.2007 he left the office without any permission, as well as he admitted that inquiry was made with him, and therefore, on 5.3.2007 he gave an application of 3.3.2007. He also admitted that he received a letter from the office signed by the accused asking explanation from him regarding his absence without permission and ultimately his leave was sanctioned without any pay and entry to that effect was taken in his service book. He also admitted that he preferred an appeal against the said order before the I.G. Police, but same also was dismissed and punishment was confirmed. Moreover, he also admitted in the cross- examination that he was unable to state the exact spot of the incident and even he does not know whether the police were available in the weekly market. 7 Considering the testimony of PW3 Ramraje Pawar the complainant, the learned Trial Judge observed that from the scrutiny of the entire evidence of the complainant and the admissions given by him, it can be safely inferred that his leave was sanctioned without 5 crap423.11 pay, and therefore, he preferred an appeal, which also was dismissed, and hence, he was having the grievance against the accused, since he was of the opinion that cause of his leave without pay was the accused. It is also observed by the learned Trial Judge that from the evidence of the said witness it appears that he was in the habit of filing false case under the Atrocities Act. 8 Learned Trial Judge further observed that taking into consideration the entire evidence of this witness, it appears that in order to take revenge against the accused, the said witness has filed the complaint against him, which is after thought and pre-planned and his evidence does not inspire confidence of truthfulness, more particularly, considering the number of admissions and contradictions in his testimony, and therefore, evidence of the said witness is not cogent, reliable and consistent, and hence, same cannot be accepted. The said observations made by the learned Trial Judge do not appear to be out of place. 9 Coming to the evidence of PW2 Dr. Jyotsana Dhaware, she stated that injured Ramraje Pawar came to the Civil Hospital, Osmanabad on 24.3.2008 and she examined him at 11.00 a.m. on the said date and she found one injury i.e. abrasion on right thumb 1 x 1.5 cm. caused due to hard and blunt object and said injury was 6 crap423.11 simple injury caused within 24 hours. She issued injury certificate Exh. 18 in that respect. However, the said witness admitted in the cross-examination that if collar is caught and the slap is given to the person, then injury mentioned in the certificate Exh. 18 is not possible. Accordingly, there is no correlation between the injury sustained by the complainant on his right thumb and the alleged assault as contended by the complainant, which was the slap on the face and the evidence of said witness clarifies the said position and diminishes the credibility of the prosecution case. 10 Turning to the deposition of PW4 Nanibai Pawar, who is wife of the complainant, her testimony appears to be interested and considering the admissions and contradictions therein, the learned Trial Judge was not inclined to accept the same and the reasoning given therefor cannot be faulted with. 11 Coming to the deposition of PW5 Mahaling Dhumal, alleged eye witness, the learned Trial Judge, after considering his testimony observed that his evidence appears to be afterthought and false, because this witness is a resident of Hasegaon, as well as complainant was also resident of Hasegaon. He also admitted that he was unable to state in the shop of which vendor the incident took place, as well as he was unable to state for what purpose he had 7 crap423.11 gone to Osmanabad, he was also unable to give the name of vegetable vendor where incident took place, nor he disclosed the said incident to anybody. Moreover, the learned Trial Judge observed that there is variance in his testimony and the testimony of the complainant in respect of uttering of the caste, and ultimately, the learned Trial Court disbelieved the said witness and there is no flaw in the said observations. 12 Accordingly, learned Trial Judge observed that the defence taken by the accused appears to be cogent and probable and the complainant filed the complaint against the accused to take revenge and interested witnesses were examined after filing the false complaint by him, and there is no cogent, reliable and consistent evidence against him, and consequently, the observations made and reasoning given by the learned Trial Judge cannot be faulted with. 13 Having the comprehensive view of the matter, after scrutinizing and appreciating the evidence on record, the view adopted by the learned Trial Judge is a possible view and same does not appear to be perverse, and therefore, no interference therein is called for in the appellate jurisdiction, and hence, present application deserves to be rejected. 8 crap423.11 14 In the result, present application bears no substance and same is devoid of any merits and same stands dismissed. Leave to file appeal is refused. Present application stands disposed of accordingly. R. and P. be sent back to the concerned court. (SHRIHARI P. DAVARE), JUDGE. dbm/crap423.11