1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.2066/2010 THE STATE OF MAHARASHTRA APPLICANT. V E R S U S BALAJI S/O BRAHMAJI GUNDE AND OTHERS. RESPONDENTS. Shri B.J. SONWANE, A.P.P. Advocate for the applicant. Shri A.M. Gaikwad, Advocate for the respondents. CORAM : SHRIHARI P. DAVARE, J. DATE : 16TH AUGUST, 2010. PER COURT : 1. Heard learned respective counsel for the parties. 2. This is an application preferred by the applicant-state, seeking leave to file appeal against the judgment and order of acquittal dated 8.2.2010, passed by learned Additional Sessions Judge, Kandhar in Special (Attro) Case No.2/2007 acquitting the respondents/original accused for the offence p/u/s 3 (i) (1) (x) of SC/ST ( Prevention of 2 Atrocities ) Act and also acquitting him for the offence p/u/s 323, 504, 506 (ii) of Indian Penal Code. 3. I have perused impugned judgment and order of acquittal dated 8.2.2010 with the assistance of learned counsel for the parties. 4. Respondents i.e accused nos. 1 to 3 faced trial in Special (Attro) case No. 2/2007 for the aforesaid charges in respect of the incident allegedly occurred on 3.1.2007. 5. To substantiate said charges, levelled against the accused, prosecution has examined in as much as seven witness es i.e. PW 1 Sow. Dhondyabai Sopan Gore - complainant, PW 2 Shivaji Sopan Gore son of the complainant, PW 3 Ananda Sopan Gore - another son of the complainant, PW 4 Dr. Damodhar Vayegaonkar – Medical Officer, PW 5 Kondiba Kamaji Ambate spot panch, PW 6 Raghunath PSI who recorded complaint and registered First Information Report and PW 7 DY S.P. Milind Bhise, investigating officer. 3 6. Admittedly, the prosecution has not produced the caste certificate of the complainant namely Dhondyabai on record since it was not available, but produced certificate of her husband and therefore, apparently in view of said lacuna, provisions of SC/ST act would not be attracted in respect of the alleged occurrence of the incident. 7. Moreover, as regards alleged offence of the incident, learned trial judge has observed that PW 2 Shivaji son of the complainant, who came at the place of incident later on and therefore, it is clear that he himself has not heard the alleged abuses. Hence, said evidence of PW 2 Shivaji cannot be of any use to the case of prosecution. As regards PW 3 Ananda, another son of the complainant it is admitted that he is not eye witness to the occurrence of the incident, since he was not present at the place of incident. As regards, panchnama, learned trial judge has observed that prosecution has not examined Dharoba Padmaji Gundhe. The evidence of PW 7 Mr. Bhise about recording of panchnama has not been corroborated by the evidence of PW 5 Kondiba Kamaji Ambate. 4 8. As regards, the medical evidence, it has come in the evidence that in medical examination of the complainant, PW 4 Dr. Damodhar Vayegaonkar found abrasion on the front side of the forehead admeasuring 1 x 1 x 1cm and also found abrasion on right forearm admeasuring 2 x 2 x 3 cms. Hence, learned trial judge observed that evidence of Dhondyabai complainant about injury to the shoulder and back has not been corroborated by oral evidence of PW 4 Dr. Damodhar and medical certificate Exh.22. PW 4 Dr. Damodhar also admitted in the cross examination that medical certificate did not bear the time of the medical examination as well as he has not mentioned that injuries were caused within 24 hours. Hence, learned trial judge has observed that there is no oral and documentary evidence about time of medical examination and ultimately learned trial judge has not believed medical certificate Exh.22. 9. Accordingly, after scrutinizing and appreciating the evidence on record, learned trial judge arrived to the conclusion that accused persons are not guilty in respect of the charges levelled against them, in view of lacunae, infirmities and inconsistency in the prosecution evidence, and consequently, acquitted accused persons 5 and hence, the view adopted by the learned trial judge is a possible view to be adopted, after considering the evidence on record and no perversity is found therein. Moreover, the reasoning given by the learned trial judge for acquitting the accused persons, also appears to be proper and same cannot be faulted with, and hence, present application deserves to be rejected. 10. In the result, present application being sans merit, stands rejected and leave to file appeal stands refused. 11. Record and proceedings be sent back to the concerned court. ( SHRIHARI P. DAVARE, J. ) ..... aaa/2066.10