1 Cr. Appln. No.1557/2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Criminal Application No.1557 Of 2010 The State of Maharashtra Through Suman Namdeo Parihar. .. Applicant. Versus Bhagubai Mahadeo Gatkul And Others. .. Respondents. -------- Smt. Y.M. Kshirsagar, Additional Public Prosecutor, for applicant. Shri. A.S. More, Advocate, for respondent Nos.1 to 4. -------- CORAM: SHRIHARI P DAVARE, J. DATE: 15th JUNE 2011 PER COURT : 1) Heard Smt. Kshirsagar, learned Additional Public Prosecutor for the applicant and Mr. More, learned counsel for the respondents. 2 Cr. Appln. No.1557/2010 2) This is an application preferred by the applicant - State seeking leave to file appeal challenging the judgment and order dated 13-10-2010 rendered by the learned Ad-hoc Special Judge, Osmanabad in Special (Atrocity) Case No.5 of 2009 thereby acquitting the respondents - original accused Nos.1 to 4 for an offence punishable under section 3(1)(x)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and under sections 323, 504, 506 read with section 34 of Indian Penal Code. 3) I have perused the impugned judgment and order dated 13-10-2010 also the Record and Proceedings with the assistance of the learned counsel for the parties. 4) The factual matrix of the case is as follows :-- 5) It is alleged that on 14-12-2007 at about 8 to 10 a.m. when the complainant Suman Namdeo Parihar was proceeding from in front of Zilla Parishad School Khanapur, accused No.2 - Babu Janardhan Gatkul, accused No.3 Mahadeo Baliram Gatkul, accused No.4 Ashok Mahadeo 3 Cr. Appln. No.1557/2010 Gatkul and accused No.1 Bhagubai Mahadeo Gatkul were standing in front of the school, and hence, she rushed towards accused No.3 Mahadeo and asked him why he sold out the land to others when she had given earnest amount for purchasing the said land. Thereupon, the accused No.3 Mahadeo abused her on caste like - "Kashachi tuzi jamin maharge, tuzyakade baghawe lagel, laie majlis ka?". 6) The complainant further alleged that all the four accused above named abused her on her caste. Accused No.2 - Babu and accused No.3 - Mahadeo caught hold of her both hands and gave slaps on her chick. Accused No.4 Ashok had assaulted her by means of fists and kick blows. Accused No.1 Bhagubai had caught her hair, pulled her hair and pushed her on the ground thereby her sari and blouse were torn. Accused No.3 Mahadeo and accused No. 2 Babu caught her from her behind with bad intention and tried to outrage her modesty. The complainant started shouting. Thereafter villagers Kisan Thite, Sukracharya Wadekar, Baliram Parihar and Jagannath Gatkul rushed to the spot and intervened and separated the complainant from the clutches of accused. Thereafter the complainant 4 Cr. Appln. No.1557/2010 approached the police station and lodged a report. Offence was registered against the accused persons under the aforesaid sections under CR No.139/2007. 7) To substantiate the aforesaid charges levelled against the accused, the prosecution has examined as many as six witnesses as mentioned below :-- (1) PW 1 - Suman Parihar i.e. complainant; (2) PW 2 - Sukracharya Wadekar - eye witness; (3) PW 3 - Jagannath Gatkul - eye witness; (4) PW 4 - Abhiman Iname - Panch witness; (5) PW 5 - Police Inspector Sambhaji Dhumale, who recorded the First Information Report; and (6) PW 6 - Deputy Superintendent of Police Ajitkumar Ranade, Investigating Officer. 8) At the outset, although the incident took place on 14th December 2007, the first information report came to be lodged on 30th December 2007 i.e. after lapse of about 16 days and prosecution has failed to give any plausible and convincing explanation therefor, and hence, the learned trial Court has rightly observed that such 5 Cr. Appln. No.1557/2010 unexplained delay is fatal to the case of the prosecution. 9) Moreover, the deposition of PW 1 Suman i.e. the complainant appears to be sketchy. She admitted in the cross-examination that accused Nos.1 and 2 are adjacent to each other therefore accused No.2 had purchased the land. She denied that accused No.3 sold his land to accused No.2 and therefore she got annoyed. Hence the learned trial Court has observed that her evidence appears to be doubtful and not cogent on the ground that she had stated that all accused abused her on her caste like - "Maharde laie majlis ka, tuzyakade baghave lagel". It is highly improbable and impracticable how all accused persons at one and same time would abuse similar words to the complainant. If really accused persons had abused her then definitely there is variance and difference in the abuses given by accused Nos.1 to 4 to her. But she has at random stated that all accused abused her on her caste and same abuses stated before Court, and therefore, her evidence appears to be afterthought. Considering the testimony of PW 1 Suman the observations made by the learned trial Court do not appear to be out of place. 6 Cr. Appln. No.1557/2010 10) Moreover, the testimony of eye witness Sukracharya also does not appear to be reliable since there are vital omissions therein. Same is the position with the deposition of PW 3 Jagannath, another eye witness since the said testimony also suffers from vital omissions and contradictions. Accordingly, due to vital omissions and contradictions and discrepancies, the credibility of testimonies of said two eye witnesses diminishes. 11) The learned trial Court has rightly assessed the prosecution evidence and held that there is contradictory evidence in respect of abuses given by the accused persons to PW 1 Suman and other two eye witnesses on the point of specific abuses given by the accused persons, and therefore, the findings recorded by the trial Court cannot be faulted with. 12) It is further observed by the trial Court that, the evidence of PW 1 Suman is not supported or corroborated by medical evidence though she claimed that she was assaulted and sustained injuries, and therefore also, the prosecution case fails. Hence apparently, there is no flaw in 7 Cr. Appln. No.1557/2010 the said observations made by the learned trial Court. 13) In the circumstances, after scrutinising and appreciating the evidence on record, the view adopted by the trial Court while acquitting the accused is a possible view and same does not appear to be perverse, and hence, no interference therein is warranted. Therefore, the present application deserves to be rejected. 14) In the result, criminal application, which is sans merit, stands dismissed. Leave to file appeal is refused. Record and proceedings be sent back to the concerned Court. Sd/- (SHRIHARI P DAVARE, J .) rsl