1 A-5001-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPLICATION NO. 5001 OF 2010 The State of Maharashtra .. Applicant versus Prakash Ganpat Pachkude & Ors. ..Respondents Mrs. M. H. Mhatre – Additional Public Prosecutor for Applicant / State. CORAM : D. D. SINHA AND SMT. V. K. TAHILRAMANI, JJ. DATED : NOVEMBER 30, 2010. P.C. : 1. Heard the learned Additional Public Prosecutor for the Applicant / State. 2. Criminal Application for leave to file appeal is directed against the judgment and order of acquittal dated 13th July, 2010 passed by the Additional Sessions Judge, Ratnagiri, whereby all the respondents came to be acquitted for the offence punishable under Sections 143, 147, 341 r.w. 34, 323 r.w. 34, 395 and 506 r.w. 34 of the Indian Penal Code. The learned Additional Public Prosecutor has submitted that in order to bring home the guilt of the respondents, the prosecution has examined four eye witnesses i.e. P.W. 1, P.W. 2, P.W. 3 and P.W. 4, out of which P.W. 3 did not support 2 A-5001-10 the prosecution in the Court and therefore was declared hostile. It is contended that in the instant case P.W. 1 complainant was assaulted by the respondents on 11th October 2008 and sustained injuries on his person. The learned Additional Public Prosecutor further contended that immediately after the assault, complainant went to the police station and lodged the first information report disclosing the incident in detail. It is contended that the evidence of complainant corroborates the prosecution case stated by him in the first information report. It is further submitted that other two eye witnesses also corroborated the material particulars of the prosecution case. It is therefore contended that inspite of the positive evidence available on record, the trial court failed to appreciate the same and recorded the finding of acquittal, which is unsustainable in law. 3. After considering the contentions canvassed by the learned Additional Public Prosecutor, we have also perused the impugned judgment and order passed by the trial court. It shows that the incident of assault had taken place on 11th October 2008 and though it is the case of the prosecution that the complainant immediately thereafter went to the police station and lodged the first information report, however the first information report which was produced on record by the prosecution is dated 12th October 2008. It is the case of the prosecution that after the assault, complainant became 3 A-5001-10 unconscious and referred to the Civil Hospital, Ratnagiri. This part of the evidence of the prosecution if it is accepted then it is difficult to reconcile as to how the complainant after assault would go to the police station for lodging the report. In the instant case it is not in dispute that the first information report alleged to have been lodged by the complainant dated 10th October 2008 is not placed on record by the prosecution and the first information report, Exhibit 28. which is placed on record is dated 12th October 2008. This is, in our view, is the material infirmity which creates doubt about the authenticity of the case of the prosecution. 4. So far as evidence of eye witnesses P.W. 2 and P.W. 4 is concerned, they have more or less stated in their respective testimonies the story of the prosecution similar to one stated by the complainant in his evidence. For the same reason, it is difficult for us to place reliance on the testimony of these two eye witnesses. 5. For the reasons stated herein above, the impugned order is just and proper, needs no interference. Leave refused. Application dismissed. (D. D. SINHA, J.) (SMT. V. K. TAHILRAMANI, J.)