1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 286 OF 1998 The State of Maharashtra Through : Kalyan Mahadeo Thite, R/o Bavchi, Tq. Paranda. .. .. APPELLANT (Orig. Complainant) Versus 1. Janardhan Yeshwanta Londhe, Age : 25 Years, 2. Sampati Yeshwanta Londhe, Age : 35 Years, 3. Ganpati Yeshwanta Londhe, Age : 32 Years, 4. Balu Dadarao Rodge, Age : 30 Years, All R/o Bavachi, Tq. Paranda. .. .. RESPONDENTS (Orig. Accused) Mrs. Y. M. Kshirsagar, A.P. P., for the Appellant/State. Shri N. E. Deshmukh, Advocate h/f Shri S. B. Talekar, Advocate for the Respondents. CORAM : V. R. KINGAONKAR, J. DATE : 04TH SEPTEMBER, 2009. 2 ORAL JUDGMENT : 1. This appeal is directed against judgment of acquittal rendered by the learned Judicial Magistrate (F.C.), Paranda, in criminal case bearing Regular Criminal Case No. 51/1996. The respondents have been acquitted for the offences punishable under Sections 324, 337, 504 read with Section 34 of the I. P. Code and under Section 135 of the Bombay Police Act. 2. The prosecution case, stated briefly, was that on 23rd January, 1996, the respondent No. 1 to 4 picked up a quarrel with injured P.W. 3 Bhimrao Rodge. The respondent No. 1 inquired with the said Bhimrao as to why he had previously assaulted him and his brothers. As per his gesture by winking of eye, the respondent No. 2 hurled a stone in the direction of injured P.W. Bhimrao. As the stone struck him from behind, injured Bhimrao fell down. Thereafter, the respondent No. 1 dropped a stone on his head and, therefore, bleeding injury was caused to the head of P.W. Bhimrao. The respondents No. 1 to 4 fled away from the spot. Injured P.W. Bhimrao was rushed to Primary Health Center at Paranda. There from, he was shifted to private medical hospital of Dr. Laxman Kabra. His maternal cousin, namely, P.W. 1 Kalyan lodged a report at the police station and offence was registered on the basis of said report. The police carried out certain investigation. The respondents were thereafter put up on trial as a result of the investigation. 3. At the trial, the prosecution examined in all ten (10) witnesses 3 in support of its case. The learned Judicial Magistrate came to the conclusion that, there were material discrepancies in the versions of the injured and other eye witnesses. The learned Judicial Magistrate extended benefit of reasonable doubt to the respondents and acquitted them. 4. Heard learned A. P. P. Smt. Kshirsagar for State and learned counsel Shri Deshmukh holding for Shri Talekar. 5. Before I proceed to scan the prosecution evidence, it may be stated that in an appeal against order of acquittal, ordinarily, the Appellate Court would be rather slow in causing interference, unless it can be said that, the view taken by the Trial Court is absolutely incorrect and implausible. It is well settled that, when two views are possible, the view taken by the Trial Court will be ordinarily not upsetted unless the same is totally incorrect or based on conjunctures. The appreciation of the evidence by the Trial Court, unless it is shown to be arbitrary or absolutely improper, the Appellate Court may not substitute its own view based on re- appreciation of the evidence. 6. At the outset, it may be stated that injured P.W. 3 Bhimrao did not give report to the police when he was rushed to the hospital at Paranda or thereafter at the hospital at Barshi. The FIR (Exhibit 26) was lodged by P.W. 1 Kalyan. The version of P.W. 1 Kalyan purports to show that on 23rd January, 1996, at about 11.00 a. m. he was called by P.W. 7 Shahaboddin. He narrated that, the respondent No. 4 1 and P.W. 7 Shahaboddin were then talking with each other. His version purports to show that P.W. 7 Shahaboddin informed him that the earlier dispute between P.W. 3 Bhimrao and the respondent No. 1 Janardhan was amicably settled. Within a short time, P.W. Bhimrao reached near them. According to P.W. Kalyan, the respondent No. 1 inquired with P.W. Bhimrao as to why earlier, they had beaten to up. There took place exchange of hot words between them. It is the version of P.W. Kalyan that during the course of such altercation, the respondents No. 2 to 4 arrived at the place and then the respondent No. 1 gave signal to the respondent No. 2 by winking of eye. On seeing this, P.W. Kalyan apprehended the possibility of further quarrel and assault and hence advised injured P.W. Bhimrao to leave the spot. By that time, the respondent No. 2 hurled a stone on person of P.W. Bhimrao and therefore, the latter was injured. He corroborated recitals of F.I.R. (Exhibit 26). 7. The version of P.W. Kalyan purports to show that the respondents No. 3 and 4 had not done anything. According to him, both these respondents were only present there without doing any overt act. He admitted that there was political rivalry between injured P.W. Bhimrao and the respondents. His version purports to show that P.W. 7 Shahabuddin and the respondent No. 1 were sitting by side of road before the commencement of the incident. The witness is related to P.W. Bhimrao. In this context, version of P.W. Bhimrao would show that the stone was pelted at him from back side and as such he received the injury, while the respondent No. 1 was asking him for explanation regarding the earlier incident of beating. 5 It is worthwhile to mention here that, when the stone was hurled from behind, it was difficult for P.W. Bhimrao to notice as to who had done it. Still, he gave exaggerated version that stone was pelted by the respondent No. 2 from his bath room. He too stated that the respondent No. 1 and P.W. 7 Shahaboddin were talking with each other before he had gone to the place of the incident. This is not the version of P.W. Kalyan. The cross examination of P.W. Bhimrao purports to show that P.W. Mahemood and P.W. Baba Tailor were present at the time of alleged incident. In this context, versions of P.W. 4 Mahemood and P.W. 5 Baba Tailor would show that they witnessed the only fact that P.W. 3 Bhimrao was lying unconscious in injured condition and some members of the mob had gathered around him. Obviously, they did not subscribe to the prosecution version as regards the incident of assault. Coming to the version of P.W. 7 Shahabuddin, it may be gathered that he too does not support part of the prosecution case. His version goes to show that there was a quarrel between the respondents and P.W. Bhimrao. He does not say that P.W. Bhimrao was called while he and the respondent No. 1 Janardhan were talking with each other. His version would show that he had seen the incident of quarrel from about 25 to 30 feet away. Thus, the genesis of the incident is not corroborated by P.W. Shahabuddin in the terms it has been so stated by P.W Kalyan. 8. The medical evidence tendered by P.W. 6 Dr. Kabra would show that injured P.W. Bhimrao was found to have sustained one blunt injury to the skull on left side of the face below the left ear. He also noticed an abrasion below the left ear. He issued the medico legal 6 certificate (Exhibit 43). He is a private medical practitioner. He did not record history of the assault involving the respondents. The recitals of the FIR (Exhibit 26) would show that after injured P.W. Bhimrao had fallen down, the respondent No. 1 Janardhan again dropped stone on his head, therefore, P.W. Bhimrao received bleeding head injury and became unconscious. The recitals of the FIR (Exhibit 26) in this context are not corroborated by P.W. Shahabuddin. The medical evidence would show that there was single injury on left side of the skull coupled with an abrasion. The oral account given by P.W. Shahaboddin, P.W. Kalyan does not show that respondent No. 1 dropped a stone on the head of injured P.W. Bhimrao after he had fallen down. This is a material discrepancy noticed from the evidence tendered by the prosecution witnesses. Considering these aspects, the impugned judgment of acquittal cannot be regarded as unfounded. No substantial reason appears to interfere with the findings of fact tendered by the Judicial Magistrate (F.C.) Paranda. 9. In the result the appeal is dismissed. The impugned judgment is confirmed. [ V. R. KINGAONKAR, J. ] bsb/Sept. 09