* 1 * Cri.Appeal-670/1991 14.9.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 670 OF 1991 The State of Maharashtra .......Appellant V/S. 1. Bhaga Pandu Modak Age : 30 years 2. Kanu Parshuram Modak Age : 35 years 3. Valku Hari Modak Age: 42 years All r/o. Savala, Tal.Karjat District-Raigad .........Respondents (Orig.accused nos.1,3 and 4 resp.) * * * * * * Mr. Y.M. Nakhawa, APP for the appellant-State. Mr. S.U. Dhakephalkar h/f. Mr. P.K. Dhakephalkar, Advocate for respondents. Coram : Smt. R.P. SondurBaldota, J. 14 September, 2010. JUDGMENT : 1. This is an appeal against acquittal filed by the State * 2 * Cri.Appeal-670/1991 14.9.2010 challenging acquittal of the respondents from the charges under Sections 325, 336, 427, 504 read with Section 34 Indian Penal Code. The case against the original accused no.2 had abated on account of his death. 2. The respondents and the complainant resided in the same village, ie. Savala. They have been on cross-terms with each other since some time. It is the prosecution’s case that on 18th March 1987 at about 2.45 p.m. the respondents and the deceased accused abused and assaulted the complainant by pelting stones. Accused no.1 threw a stone at P.W.1, which hit him on his face and he lost ten teeths. The stones hurled by the other accused persons caused damage to the roof of the house of P.W.1. The first informant in respect of the alleged incident of abuse and assault, was the Police Patil. The police registered offences punishable under Sections, 325, 336, 427 and 504 read with Section 34 Indian Penal Code against all the accused. 3. The prosecution examined in all six witnesses, out of which P.W.1 is the complainant and P.W.2, P.W.4, P.W.5 are the relatives of the complainant. P.W.3 is the Medical Officer who examined P.W.1 * 3 * Cri.Appeal-670/1991 14.9.2010 and P.W.6 is the Investigation Officer. On the complaint of P.W.1 of loss of ten teeth in the alleged incident of assault, the Medical Officer-P.W.3 has given Certificate of injury for loss of twelve teeth. The prosecution relies upon panchanama of the place of incident in which twelve teeth came to be recovered from the site. This panchanama was drawn on the next day after the incident. It specifically mentions that the ground surface of the spot had been cleaned and hence no blood stains were found on the ground. If that is so, one wonders how did the teeth remained at the site unless the same had been collected and preserved by P.W.1. The learned Trial Judge found that the eye witnesses i.e. P.W.2, P.W.4 and P.W.5 who are close relatives of P.W.1 had curiously merely witnessed the incident of assault without even as so much as making an attempt to help P.W.1. 4. The learned Trial Judge at paragraphs-10 and 11 has given his additional reasons for rejecting the prosecution evidence. The same read as follows :- 10. Thus taking into consideration all above evidence on “ record, it indicates that testimony of the witnesses contradicts each other by way of eliminating process. The P.W.1 has * 4 * Cri.Appeal-670/1991 14.9.2010 substantially improved his version before Court, mainly on the figures of the teets which were failed although it is not found placed in his own complaint. There is really no explanation rendered by the prosecution as to why the police did not take the statements of independent witnesses although they were present to see the incident as per the complainant’s evidence. There is also no reasonable explanation rendered by the prosecution that why the police did not take the statement of the police patil even after he informed about the incident to the police according to the complainant’s evidence. 11. Thus taking into consideration all the above evidence on record, it is very well seen that the alleged eye witnesses are the relatives of the complainant and the prosecution has not examined any other independent witnesses as stated above, therefore, in my opinion the facts and circumstances on record, the accused persons are entitled only for benefit of doubt.” 5. These observations by the learned Judge are seen to be completely borne out by the record. The prosecution’s case is seen to be a fanciful case which the learned Judge has also found to be not “ practically possible”. Hence, the Appeal is dismissed. * 5 * Cri.Appeal-670/1991 14.9.2010 [Smt. R.P. SondurBaldota, J]