1 crap3359.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 3359 OF 2011 The State of Maharashtra ...Applicant [Orig.Complainant] VERSUS Maheboob Raheman Shaikh & 2 ors. ...Respondents [Orig.Accused] ..... Shri S.N.Kendre, A.P.P. for applicant Shri N.V.Gavare, advocate for the respondents ..... CORAM : SHRIHARI P.DAVARE, J. DATED : 29 th November, 2011 PER COURT : 1 Heard respective learned counsel for the parties. 2 This is an application preferred by the applicant (original complainant), seeking leave to file appeal, challenging the judgment and order, dated 19.4.2011, rendered by the learned Judicial Magistrate, First Class, Karjat, in R.T.C. No. 185 of 2007, thereby 2 crap3359.11 acquitting respondent nos. 1 to 3 (original accused) from the charges under Sections 325, 324, 323, 504, 506 r/w 34 of the Indian Penal Code. 3 It is alleged that on 25.8.2007 the incident of assault took place on account of common Bandh at village Taju, near Bansode Vasti and the accused persons caused grievous hurt to the complainant on his right ribs and on his forehead by stones and by fist and kick blows on right hand first finger to the son of the complainant. 4 To substantiate the said charges, the prosecution examined as many as 7 witnesses. PW1 Ahmed Raheman Shaikh, complainant PW2 Parveen w/o Rasul Shaikh, complainant’s father-in-law PW3 Bapu Dhanaji Deokate, panch PW4 Rasul Ahmed Shaikh, eye witness PW5 PSI – Nivrutti Rambhau Mane, investigating officer PW6 Dr.Sandeep Parsuram Kaldate, private doctor PW7 Dr.Subhash Bhagwan Shinde, medical officer 5 However, on perusal of the oral and documentary 3 crap3359.11 evidence adduced/produced by the prosecution, it appears that although the incident occurred on 25.8.2007, the investigation was started after the delay of two days i.e. on 27.8.2007 and the prosecution has not given any plausible explanation for the said delay, which goes to the root of the matter and hampers the case of the prosecution. 6 Moreover, the prosecution has not examined any independent witness to substantiate the charges levelled against the accused persons. So also, the prosecution failed to prove the spot panchanama. Besides, the prosecution also failed to prove the injuries sustained by the injured persons, since the prosecution has not examined the concerned Medical Officer from Bharadgaon and also has not examined Dr. Dhobhada from Rashin and the investigating officer has not filed any documents regarding the medical treatment received by the complainant from Dr. Kaldate at Sai Hospital, Karjat. 7 Pertinently, the incident occurred on 25.8.2007 and as per version of the investigating officer, A.S.I. Dalvi registered N.C. Case No. 675 of 2007 on 26.8.2007 on the basis of complaint given by PW1 Ahmed and thereafter police yadi was given to the complainant for medical examination on the same day i.e. 26.8.2007 (Exh.34). 4 crap3359.11 But pertinently, PW7 Dr.Shinde had examined said Rasul on 25.8.2007 i.e. on the date of the incident itself and issued the medical certificate (Exh.53) on 25.8.2007, and therefore, question arises when yadi was given on 26.8.2007, how the medical certficate was issued by PW7 Dr. Shinde earlier i.e. on 25.8.2007 and how he examined the said patient earlier on 25.8.2007, and hence, the said discrepancy creates doubt about the said medical evidence adduced/produced by the prosecution. Besides, none of the witnesses have deposed a single word against the accused as to what exact words were used by the accused and addressed to the complainant, intending thereby to cause criminal insult of the complainant and allegedly gave provocation to him to cause any other offence. Moreover, none of the witnesses, including the complainant, have deposed as to what abuses or threats were given by the accused, by which the complainant felt insulting or embarrassing or fearful and which may constitute offence punishable under Sections 504 or 506 of the Indian Penal Code. 8 In the circumstances, there are discrepancies, deformities and infirmities in the prosecution evidence, which does not inspire confidence to connect the accused with the alleged crime, and hence, the learned Trial Court rightly acquitted the accused by impugned judgment and order, dated 19.4.2011. 5 crap3359.11 9 In the circumstances, after scrutinizing and assessing the evidence on record, the view adopted by the learned Trial Court, while acquitting the respondents, is a possible view to be adopted, and same does not appear to be perverse, and hence, no interference therein is warranted in the appellate jurisdiction, and therefore, present application deserves to be rejected. 9 In the result, present application, which is sans merits, stands dismissed and leave to file appeal is refused and present application is disposed of accordingly. R. and P. be sent back to the concerned court. (SHRIHARI P. DAVARE), JUDGE. dbm/crap3359.11