1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT NAGPUR CRIMINAL APPLICATION (APPA) NO.302 OF 2011 IN CRIMINAL APPEAL NO._____/2011 State of Maharashtra ..vs.. Pandurang s/o Sakharam Kalapad and others =-=-=---=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Office Notes, Office Memorandum of Coram appearances, Court's orders or directions & Registrar's orders. Court's or Judges Order =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Mrs. B.P. Maldhure, Addl. Public Prosecutor for the appellant. C ORAM : P.V. HARDAS AND S.B.DESHMUKH, JJ. DATED : 16TH AUGUST, 2011. This is an application by which the applicant-State seeks leave to file appeal against the respondents, who have been acquitted by the Ad hoc Additional Sessions Judge, Washim, by judgment dated 07-1-2011, in Sessions Trial Nos. 100/2000 and 33/2001. 2. About 30 accused came to be tried on the allegations that the accused have formed an unlawful assembly and in prosecution of the common object of the assembly had committed murder of deceased Namdeo and had caused serious injury to Suresh (P.W.9). The trial 2 Court upon appreciating the evidence of P.W.2-Gajanan, P.W.3-Godavari, P.W.4-Raju, P.W.5-Rambhau, P.W.6- Shankar, P.W-7-Jairam, P.W.8-Sakharam, P.W.9-Suresh and P.W.12-Yashoda came to the conclusion that the witnesses had improved upon their earlier statements made during investigation as well as to the Magistrate under Section 164 of the Criminal Procedure Code, 1973 and, therefore, no reliance at all could be placed on their testimony. 3. In respect of assault on P.W.9-Suresh and other witnesses found from the evidence of P.W. 10-Dr. Sudhakar Manik that they were referred to the Civil Hospital, Akola, where they were treated by P.W.15-Dr. Purushottam. P.W.15-Dr. Purushottam, in his evidence, apart from stating that they were admitted in the hospital, does not state anything about the injuries sustained by the witnesses. The trial Court, therefore, came to the conclusion that if the witnesses had sustained fractures, X-rays could have been produced on record as well as the discharge cards in respect of the number of days these witnesses were required to stay in the hospital. There was no evidence in respect of the nature of the treatment, which was given to these witnesses. The injury certificate of P.W.9-Suresh at Exh.356 does not reflect that the injury sustained by him was serious. The trial Court further found that there was no evidence in respect of the treatment taken by this 3 witness in the hospital at Aurangabad. 4. In respect of the evidence of the injured eye witness i.e. Gajanan, the trial Court found that he claimed that he was assaulted outside and had rushed inside upon regaining his consciousness, whereas the evidence indicated that he was present in the house itself. The trial Court found that this contradictory evidence was fatal to the prosecution case. Gajanan had also named certain persons, which were not accused in the trial. In respect of evidence of Raju, the trial Court found that in the statement recorded by the Executive Magistrate, he had made no reference to the assault by the accused on his father, brother and mother in the house. The motive attributed by this witness for the assault was also different. In respect of the evidence of P.W.9-Suresh, the trial Court found that he had stated that 30 to 40 persons had entered his house and had started assault on Namdeo, who was inside the house. The evidence of Yashodabai was in respect of assault on Namdeo outside the house. In respect of evidence of Godavari, the trial Court came to the conclusion that she had not referred the names of the assailants, who had assaulted deceased Namdeo and had claimed that about 60 to 70 persons had attacked her house. In respect of the evidence of Shankar, the trial Court found that he had given names of different persons, which were not accused in the trial. Moreover, this witness had admitted 4 that members of Thakare family had no concern with the incident while he had named the said members in his statement before the Executive Magistrate. In respect of witness Rambhau, he had named only for accused in his statement before the Executive Magistrate, while he had pleaded ignorance about the names of the other accused. Witness Jairam had stated that accused Samadhan had pulled his beard and, therefore, he was rendered unconscious and was not aware as to what had happened till he regained conscious in the hospital. His evidence was contrary to his statement made to the Executive Magistrate. Similarly, Sakharam had also named persons, who were not accused in the trial. 5. The trial Court upon consideration of the entire prosecution case found that the evidence of the witnesses was inconsistent inter se and, therefore, it was not safe to rely on these witnesses for sustaining the conviction. The trial Court accordingly acquitted the respondents- accused. 6. We have heard Smt. B.P. Maldhure, the learned Additional Public Prosecutor, in support of the application and we have also perused the findings recorded by the learned trial Court. Upon such examination, according to us, the view taken by the trial Court is a possible view to be taken on the basis of evidence on record. We do not notice any perversity in 5 the reasoning of the trial Court to warrant any interference in this appeal against acquittal. Consequently, this application fails and is dismissed. Leave is refused. JUDGE JUDGE. pma