1 Cri.A.5158.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 5158 OF 2010 Jagannath S/o Agaji Kuber, Age 70 years,Occup.:Agril., R/o Kuber Gevrai, Tq.and Dist. Aurangabad. ...APPLICANT. VERSUS 1) Gorakh S/o Namdeo Kuber, Age 30 years,Occup.:Agril., R/o Kuber Gevrai, Tq. and Dist. Aurangabad. And others. ...RESPONDENTS. ... Shri.P.S.Shinde,Advocate holding for Shri.G.S.Shinde, Advocate for Applicant. Smt. Y.M.Kshirsagar, APP for Respondent No.7 ... CORAM: SHRIHARI P.DAVARE, J. DATE : 10TH MARCH, 2011. PER COURT : 1. Heard. 2. This is an application preferred by the applicant(Original complainant), seeking leave to 2 Cri.A.5158.10 file Appeal, challenging the Judgment and order of acquittal, dated 11.10.2010, passed by the learned Judicial Magistrate First Class-5, Aurangabad, in Summary Criminal Case No. 5249 of 2009, thereby acquitting accused Nos. 1 to 6 for the offences punishable under sections 323, 504, 506 read with section 34 of the Indian Penal Code. FACTUAL MATRIX CAN BE SUMMARISED AS FOLLOWS: 3. The case of the complainant is that, daughter-in-law, namely, Shivnanda sold land out of Gut No. 243 situated at Kuber Gevrai to accused Nos.1 and 2, namely, Gorakh Namdeo Kuber and Dnyandeo @ Nandu Janardhan Kuber respectively, and therefore, complainant’s wife has filed suit against them for partition. Therefore, accused Nos.1 and 2 have filed Civil Suit No. 443 of 2009 against complainant for injunction, but application for injunction therein was rejected. Complainant claimed to be in possession of the land in question. Accused No.2 Dnyandeo is son of 3 Cri.A.5158.10 accused No.3, namely, Janardhan Rustum Kuber and accused No.4, namely, Bapurao Pundlik Kuber is near relative of accused Nos. 1 and 2, whereas accused No5, namely, Raghunath Kakasaheb Pathade is brother of accused No.6, namely, Shivnanda Badrinath Kuber. 4. It is alleged that, on 09.09.2009 at about 4.00 to 5.00 p.m., when complainant was grazing cattle in his field, all accused persons entered into land Gut No. 243, and abused complainant in filthy language. Hence, complainant asked them about said abuses. Thereupon, accused No.1 caught hold hands of the complainant, and accused No.2 assaulted him by fist and kick blows. Accused Nos. 3 and 4 also assaulted him by fist blows. Accused No.5 assaulted him by kicks and accused No.6 gave abuses to him in filthy language. Accused Nos. 3, 4 and 5 also stated that, “g;k FksjM;kyk jDr fu?kw u nsrk ekjk-] gk Qkj ektyk vkgsß and threatened to kill him. However, witness Nos. 1 to 3 intervened and relieved complainant. Thereafter, 4 Cri.A.5158.10 complainant went to Police Station and filed complaint. It was recorded as N.C.No. 505 of 2009. 5. To substantiate the charges levelled against accused persons, complainant examined himself and one witness, namely, Punjaram Appa Kuber. The statements of accused were recorded under section 313 of Code of Criminal Procedure. The defence of the accused persons is that of total denial and that false case has been filed against them by the complainant. 6. It is pertinent to note that, testimony of complainant Jagannath does not disclose role of each accused during the occurrence of alleged incident of assault upon him. Moreover, witness Punjaram even has not stated in his deposition, accused persons assaulted complainant, and what he had stated is that accused persons gave abuses to the complainant and there was scuffle between complainant and accused persons, wherein he 5 Cri.A.5158.10 intervened. Accordingly, testimony of Jagannath discloses details of the assault upon him by the accused persons and no specific role has been assigned to each of the accused during the course of assault, and even this witness Punjaram does not speak about assault upon the complainant, therefore, there is inconsistency in the evidence of complainant Jagannath and his witness Punjaram. Hence, it is apparent that testimonies of complainant Jagannath and his witness Punjaram do not take complainant’s case ahead to connect the accused persons to the alleged crime. Hence, the Trial Court rightly acquitted accused from charges levelled against them. 7. Besides that, view adopted by the learned Trial Court, after assessing and analyzing the evidence on record, is a probable view and same can not be construed as perverse, and hence, no interference therein is warranted in the appellate jurisdiction. Therefore, present application seeking leave to file appeal bears no substance, 6 Cri.A.5158.10 and same is devoid of merits and same deserves to be rejected. 8. In the result, present application stands dismissed and leave to file appeal stands refused. 9. Record and Proceedings be sent back to the concerned Court. Sd/- [SHRIHARI P.DAVARE, J.] MTK