((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.4522 OF 2008 Pandharinath Sitaram Patil Applicant versus Sushil Sakharam Patil Respondents Vinod Shinde for applicant. Shrikant V. Gavand for respondents 1 to 4. CORAM : A.S.OKA, J. DATE : 02nd April 2009 PC : 1. Heard learned counsel for the applicant. The applicant is the complainant in a complaint where he has alleged commission of offence under sections 323, 504, 506 read with section 34 of the Indian Penal Code. By the impugned order the accused-respondents 1 to 5 have been acquitted by the learned Magistrate. The learned counsel for the applicant submitted that after the charge was framed, no opportunity has been given by the learned Magistrate to the applicant to adduce further evidence. He pointed out that the finding recorded by the learned Trial Judge in paragraph 13 of the judgement that the case ((-2-)) made out by the prosecution witnesses regarding fist-blow given by the accused Sakharam on the face of the witness Sachin does not find place in the complaint is factually incorrect. He invited my attention to the averments made in the complaint. He submitted that the fact that the injured Sachin Patil was taken to the hospital for medical treatment is admitted. He submitted that once the incident of assault is proved by the prosecution witnesses, the order of acquittal could not have been passed only on the ground that medical certificate was not produced. He submitted that no opportunity was available to the applicant to produce the medical certificate. He has placed reliance on a decision of this Court in State of Maharashtra Vs. Rahat Khan @ Nabhu Khan and other (1984(1)-Bom.C.R-449). He submitted that the ratio of this decision will squarely apply to the facts of this case as the procedure followed by the learned Trial Judge is totally illegal. 2. I have carefully considered the submissions. I have perused the impugned judgement and notes of evidence. There is some substance in the criticism offered by the ((-3-)) learned counsel for the applicant as regards the observation made in paragraph 13 of the judgement. However, what is stated in paragraph 13 of the judgement is not the only ground on which the first to fifth accused have been acquitted. 3. In the complaint filed by the applicant, a case was made out that he was residing at the address disclosed in the complaint alongwith his wife Mrs.Rama and son Sachin. First and fifth respondents are the neighbours of the applicant. The allegation is that the fifth respondent had kept wood and waste material abutting the wall of the house of the applicant and therefore the applicant had applied to the Village Panchayat for seeking removal of the said articles. On the basis of the said complaint, Mr.Vishnu Patil, Mr.Ravikant Patil and Mr. Vithoba Gharat came to the property at 11.00 a.m. on 23rd February 2005. The said persons came as Panchas for resolving the dispute. At that time, the applicant and the accused were present. The applicant’s son Sachin was also present. The aforesaid persons heard both the parties and directed accused no.5 to remove the said articles. According to ((-4-)) the applicant, first to fourth respondents raised a dispute and started arguing with the applicant. They started abusing the applicant. The first respondent threatened the applicant by telling him that if the said articles were touched by the applicant, he would amputate hands and legs of the applicant. The second respondent tried to strangulate the applicant’s son Sachin and gave a fist-blow on the face of the said Sachin. The first respondent picked up wooden stick and threatened to assault the applicant and his son and the fifth respondent took up a broken portion of tile for the same purpose. It is specifically stated that all this happened in presence of the said three respectable persons. The allegation in the complaint is that after the incident, the applicant along with his son visited the Police Station and filed a complaint in writing. The Police directed the applicant to go to Civil Hospital at Alibag. The Police did not take cognizance of the offence but merely initiated chapter proceedings against first to fifth respondents. Therefore, the private complaint was filed. The process was issued under sections 323, 324, 504, 506 read with section 34 of the Indian Penal Code. ((-5-)) 4. The applicant examined himself. The only other witness examined by the applicant is his son Sachin. The version of PW-2 Sachin is that at the time of incident three persons present as Panchas intervened and stopped the accused persons. In fact, that is the precise averment even in the complaint. The said three persons who were independent witnesses have not been examined by the applicant. Moreover, the applicant admitted that his wife contested the election of the Village Panchayat against the mother of first respondent. He admitted that his wife lost the election and since then, he was not on talking terms with the first to firth respondents. Thus, admittedly there was prior enmity between the applicant and first to fifth respondents. In this context the failure to examine three independent persons who were admittedly present at the time of incident becomes very relevant. 5. The case of the applicant is that the Police directed him to take his son to the Civil Hospital. The case made out by PW-2 Sachin is that one of the accused tried to strangulate him and gave a fist blow on his ((-6-)) face. It is his own case that he was taken by is father to the Civil Hospital, Alibag. The applicant in his cross examination admitted that the applicant was in civil hospital for two to three hours. The applicant admitted that he had disclosed to the doctor at the civil hospital that PW-2 has been assaulted by the accused. Admittedly, the medical certificate of the injuries sustained by the applicant is not produced. The medical officer has not been examined. 6. The learned advocate for the applicant has made criticism of the procedure adopted by the learned Trial Judge. A perusal of the deposition of PW-1 shows that he was examined before the charge and was cross examined by the advocate for the accused. On 22nd November 2006, the cross examination was adjourned till the framing of the charge. After the charge was framed, PW-1 was further cross examined by the advocate for the accused on 26th August 2008. On the same day PW-2 has been examined as a witness. The very fact that the applicant was permitted to examine PW-2 after framing of charge shows that there is no merit in the submission of the advocate for the applicant ((-7-)) that no opportunity was granted by the Trial Court to the applicant to adduce the evidence after framing of charge. It is not the case of the applicant that any attempt was made by him to apply for the witness summons to the medical officer. In fact, the procedure followed by the learned Trial Judge after framing charge is consistent with the provisions of section 246 of the Code of Criminal Procedure, 1973. 7. The finding of the learned Trial Judge that the guilt of first to fifth accused is not established is certainly a possible finding born out from the evidence on record. Hence, no case is made out for grant of leave. The application is rejected. (A.S.OKA, J.)