1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPLICATION NO.2059 /2010 The State of Maharashtra Applicant. V E R S U S Radhakishan Mansingh Baniya Respondents. Mr. S.D. Kdlate, Learned APP for Applicant - State. CORAM : SHRIHARI P. DAVARE, J. DATE : 9TH JUNE, 2010. PER COURT :- 1. Heard learned Assistant Public Prosecutor for the applicant-state. 2- The applicant has preferred present application seeking leave to file appeal against judgment and order of acquittal dated 22nd February, 2010 rendered by Chief Judicial Magistrate, Aurangabad in RCC No.961/2006 acquitting the respondents (original accused nos. 1 and 2) for the offences punishable under section 324, 504, 506 read with section 34 of Indian Penal Code. 2 3- I have perused impugned judgment dated 22nd February, 2010 with the assistance of learned APP. It appears that accused No.1 Radhakishan Baniya is the brother of complainant namely Shila Mansing Baniya where as accused No.2 Smt. Madhuri is wife of accused No.1. The alleged incident of assault upon the complainant by the accused persons occurred on 6th April, 2006. It is alleged that accused persons abused the complainant and assaulted her by iron rod and thereby she sustained injuries on her hand and accused also threatened her for life on 6.4.2006. Accordingly, complaint came to be lodged by the complainant and consequently CR No.96/2006 was registered against the accused persons under section 324, 323, 504, 506 r/w section 34 of Indian Penal Code. Investigation was carried out. Charge sheet came to be filed. Accordingly charge was framed against accused persons at Exh.6 and 10 in RCC No.961/2010 for the offence punishable under section 324, 504, 506 r.w. Section 34 of Indian Penal Code and accused persons i.e. respondents herein faced trial for the aforesaid charges. To substantiate the charges prosecution has examined in as much as four witnesses i.e. complainant Shila d/o Mansingh Baniya PW 1, PW 2 Shaikh Kadir, panch of the spot panchnama, PW 3 Dr. Baburao Sapkal Medical Officer and PW 4 PSI Dilip Ingle. 4- After scrutinizing evidence on record and after considering the submissions advanced by learned APP and learned counsel for the accused persons, learned trial judge acquitted the accused persons i.e. respondents 3 herein by way of judgment and order dated 22nd February, 2010 from the aforesaid charges. Being aggrieved and dissatisfied by the judgment and order the applicant-state has preferred present application seeking leave to file appeal against said judgment and order of acquittal. 5- However, it appears that evidence of complainant Shila has not been corroborated by any independent witness and even as regards alleged weapon i.e. iron rod the complainant stated that iron rod which was produced for her identification was not the weapon by which she was assaulted and she stated that iron rod by which she was assaulted was bigger one. In substance, iron rod which was seized and produced on record is not iron rod by which the complainant was allegedly assaulted. Besides that, the complainant stated in her deposition that during the incident of assault she failed on the ground and sustained head injury but pertinently contents of complaint are silent in respect of head injury. Moreover, medical certificate Exh.24 also does not disclose that complainant sustained any head injury and such certificate is silent about head injury. So also Medical Officer PW 3 Baburao Sapkal has not stated in his evidence on which hand the complainant allegedly sustained injury. Pertinently, the Medical Officer stated in his deposition that injury No.1 sustained by complainant is chromatic injury on nose and injury No.2 is a blunt trymatic injury on the back but deposition of complainant is silent about said two injuries. Accordingly, there is variance between the ocular evidence of PW 1 complainant and medical evidence in respect of the injuries allegedly 4 sustained by PW 1 complainant. Moreover, there is no eye witness to the occurrence of the alleged incident and even one Mr. Suslade was not called as witness and his statement also has not been filed on record. 6- Thus there are discrepancies, infirmities and deformities in the prosecution case and therefore view adopted by the learned trial court acquitting the accused Nos. 1 and 2 from the charges leveled against them after scrutinizing and appreciating the evidence cannot be faulted with and same does not appear to be perverse. Moreover, view adopted by learned trial judge acquitting the accused persons after assessing the evidence is a possible view and therefore no interference therein is warranted. In the result, present application bears no substance, same is devoid of merit and stands dismissed and leave to file appeal stands refused. ( SHRIHARI P. DAVARE, J. ) .... aaa/2059.10