1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL REVISION APPLICATION NO.167/2008 Sunil s/o Jankiram Solanke Petitioner. V E R S U S Bankat s/o Babasaheb Solanke and others. Respondents. Shri D.R. Markad, Advocate for the petitioner. Shri B.J. Sonwane, A.P.P. for Respondent No.3. CORAM : S. B. DESHMUKH, J. DATE : 15TH APRIL, 2010. PER COURT :- 1. Heard learned counsel for the parties. 2. This Criminal Revision Application is filed by the original complainant in RCC No.215/2000, which was heard and disposed of by learned Judicial Magistrate First Class, Partur District Jalna. The respondents No.1 and 2 were accused nos. 1 and 2 in RCC No.215/2000. Respondents were charged for the offence punishable under section 324, 323 r/w 34 of Indian Penal Code. According to the petitioner, date of occurrence is July 29, 2000 at about 11.00 a.m. The petitioner/complainant was irrigating crop in his agricultural land. At that 2 time both accused came near common bandh between them and tried to cause damage to the common bandh. Petitioner Sunil requested them not to cause damage to the common bandh. He also pointed out that dispute in the civil court is pending, if civil court decide issue or case against the petitioner, the petitioner may not have any grievance. According to the petitioner, accused Bankat gave an axe blow from its rare side (blunt side). Blow was given on the head of the petitioner. Petitioner sustained bleeding injury. Accused No.2 Babasaheb allegedly slapped petitioner and beat him with fists. Prosecution witness Dilip, Vishnu intervened and rescued. There after petitioner lodged a report to Ashti Police Station. Crime was registered as Crime No.47/2000 under section 324, 323, 504 r/w 34 of I.P.C. After investigation, charge sheet was filed. Accused were charged by the trial court by framing charge at Exh.14. Charge was read over to accused. They denied, accused pleaded not guilty and claimed to be tried. 3. On behalf of the prosecution, six witnesses were examined. P.W.1 himself was examined. Petitioner claimed that there were two eye witnesses. They were also examined. Medical Officer Dr. Maske as P.W.5 is also examined. Trial court recorded statement of accused under section 313 of Cr.P.C. On appreciation of the evidence and after hearing the parties, trial court came to the conclusion that accused persons have committed offence under section 323, 324 rw 34 of Indian Penal Code 3 and accordingly convicted them by judgment and conviction order dated 10.07.2006. 4. Order passed by the trial court in RCC No.215/2000 was challenged by the respondents No.1 and 2 by filing criminal Appeal No. 35/2006 before learned Sessions Judge, Jalna. Said appeal was heard and allowed. Conviction recorded by the trial court is quashed and set aside. Accused persons have been acquitted for the offense punishable under section 324, 323 r.w. 34 of Indian Penal Code. 5. Counsel appearing for the petitioner submitted that order passed by the trial court is legal, proper and ought not to have been quashed and set aside by the appellate Court. I have also heard learned APP on behalf of the state Respondent No.3. I have considered the order passed by the trial court and more specifically order passed by the appellate court quashing and setting aside the conviction and declaring acquittal of the respondents. The appellate court found that alleged weapon i.e. axe has not been seized or recovered by the investigating machinery. Case of the petitioner that he was assaulted with axe, is not being supported by the eye witnesses. On behalf of the prosecution, two eye witnesses have been examined. In paragraph No.15 of the judgment, appellate Court has considered evidence of eye witnesses and came to the conclusion that evidence of the eye witnesses is 4 contradictory. Appellate Court did not find any credibility in the evidence of the eye witnesses. Appellate court rejected the evidence of eye witness. Appellate court has clarified that alibi was not defence raised by the accused persons. On appreciation of evidence/material on record, appellate court came to conclusion that offence under section 324, 323 r/w 34 of I.P.C is not established. That is how appellate court quashed and set aside the conviction and acquitted the accused. 6. This revision application is filed by the original complainant under section 401 of Criminal Procedure Code. Having considered the submission of the counsel for the petitioner, in my view no case for converting acquittal to conviction is established. In my view, this revision application sans merit and requires to be dismissed. 7. Criminal Revision Application stands dismissed. No order as to costs. ( S.B.DESHMUKH ) JUDGE. aaa/167.08 ...