IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD 2 CRIMINAL APPLICATION NO. 1679 OF 2011 THE STATE OF MAHARASHTRA VERSUS MANIK DEORAO DHAKAD AND ORS ... Public Prosecutor Mr. S.G.Nandedkar. Mr. Gaddime h/f Patil Indrale Anand V. Adv For Respt 1 To 7 ... CORAM : SHRIHARI P. DAVARE, J. Dated: December 20, 2011 ... 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 challenging the judgment and order of acquittal dated 28.12.2010, thereby acquitting the respondents/original accused persons for the offence p/u/s 143, 147, 148, 149, 324, 323, 504, 506 of Indian Penal Code. 3. I have perused the impugned judgment and order dated 28.12.2010 and Record and Proceedings with the assistance of learned counsel for the parties. 4. Respondents herein i.e. original accused persons faced trial for the aforesaid charges on the allegations that they formed an unlawful assembly by carrying deadly weapons and with a common object of causing injuries to the complainant and witnesses and gave threats to them. aaa/- IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD 5. Prosecution examined as many as 10 witnesses to substantiate the charges levelled against accused persons. PW 4 Vitthal Dhakad is the first informant, who lodged First Information Report and PW 5 Ajinath Dhakad is his nephew i.e. alleged eye witness to the occurrence of the incident. 6. As regards occurrence of the incident, PW 5 Ajinath stated in his deposition that his uncle i.e. PW 4 Vitthal was in his shop and therefore, learned trial court observed in the impugned judgment that PW 4 Vitthal was not present at the time of incident. Moreover, PW 5 Ajinath failed to identify the articles ‘A’ to ‘C’ before the Court, whereas PW 4 Vitthal identified the said articles ‘A’ to ‘C’. Moreover, as regards the role assigned to each of the accused during the occurrence of the incident, there is variance between the testimonies of PW 4 and PW 5 and observations made by learned trial court in that respect apparently cannot be faulted with. Moreover, PW 4 Vitthal has admitted in his cross examination that there are number of houses near the spot of incident that including Govardhan Rakshe, Nivrutti Bansode, Prabhu Dhakad, Walmik Parbat, Bhausaheb Rakshe, but none of the said witnesses have been examined by the prosecution as independent witness and apparently, prosecution has examined only relatives of the complainant and hence, although independent witnesses were available, the prosecution has not examined aaa/- IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD said witnesses for the reason best known to the prosecution, which apparently diminishes the credibility of the case of the prosecution. Moreover, it is matter of record that alleged incident occurred on 24.4.2010 but the FIR came to be lodged after lapse of 2 days i.e. on 26.4.2010 and apparently no plausible explanation has been given by the prosecution for the said delay, which hampers the case of the prosecution. 7. Moreover, as regards injuries,allegedly sustained by PW 4 Vitthal and PW 5 Ajinath, accused categorically put forth their defence to them through their cross examination that, PW 4 and PW 5 were proceeding towards Karjat on their motorcycle and motorcycle was slipped and as such, they sustained injuries . Obviously said suggestion was denied by them. As regards medical evidence PW 9 Dr. Rohini Bansode stated that she examined PW 4 and PW 5 and issued the injury certificates in respect of injured Ajinath which is produced at Exh.49 and Vitthal which is produced at Exh.50. She has also stated that injury no.1 mentioned in Exh.49 can be possible if anybody falls from motorcycle on tar road by the side on rough surface by falling on iron sheet of the vehicle and as such possibility of sustaining injury by PW 5 Ajinath is in consonance with the defence put forth by the accused to PW 4 and PW 5 and therefore, possibility of sustaining said injury to Ajinath by fall from motor cycle cannot be ruled out. aaa/- IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD 8. Besides spot panchnama in the present case has not been proved by the prosecution. So also prosecution has failed to examine the said person who rescued the quarrel. 9. In the circumstances, having comprehensive view of the matter, after scrutinizing and assessing the evidence on record, the view adopted by the learned trial court while acquitting the accused persons is a possible view and same does not appear to be perverse, as well as reasoning given therefor also cannot be faulted with and hence, present application deserves to be rejected. 10. In the result, present application which is sans merits, stands dismissed. Leave to file appeal is refused. R & P be sent back to the concerned court. ( SHRIHARI P. DAVARE, J. ) ... aaa/-