(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. Criminal Application No. 5044 of 2010 The State of Maharashtra, Through Public Prosecutor, .. Applicant High Court, Bench at Aurangabad. (Original complainant) versus 1. Bharat s/o. Maruti Gund, Age : 45 years. 2. Suraj s/o. Maruti Gund, Age : 37 years. All R/o. Ripani, Taluka : Kallam, .. Respondents District : Osmanabad. (Original accused) ....................... Mr. B.V. Wagh, Additional Public Prosecutor, for the applicant. Mr. Ajay T. Kanawade, Advocate, holding for Mr. M.A. Thorbole, Advocate, for respondent nos.1 and 2. ........................ (2) CORAM : SHRIHARI P. DAVARE, J. DATE : 13TH JUNE 2011 COURT'S ORDER : 1. Heard learned Counsel for the parties. 2. This is an application preferred by the State seeking leave to file appeal challenging the judgment and order dated 19-8-2010, rendered by the learned Judicial Magistrate (First Class), First Court, Kallamb, in Regular Criminal Case No. 258/2007, thereby acquitting the respondents (original accused nos.1 and 2) for the offences punishable under Sections 325, 323, 504, 506 read with Section 34 of Indian Penal Code. 3. I have perused the impugned judgment dated 19-8-2010 and record and proceedings with the assistance of learned Counsel for the parties. 4. The factual matrix of the case is as follows : It is alleged that complainant Dhananjay is resident of Nipani and on 6-9-2007, he had gone to Bankaranja for his private work and he returned back in the home in the evening. (3) Thereafter, at about 7.30 p.m., he went out of the house stating that he would go at Nipani Chowk and return back. Accordingly on arrival at Nipani Chowk, he met accused nos.1 and 2. Thereupon accused made inquiry with him, as to when he had brought the centring material of construction from Karkhana of Mr. Deshmukh in Goregaon Shivar. Thereupon, the complainant replied that he did not bring the said centring material. Hence, both the accused took the complainant to the said Karkhana by scooter to confirm the same. It is also alleged that at that place, the accused persons insisted upon the complainant to give in writing that there was no centring material in the Karkhana and gave threats to him. However, the complainant refused for the same. Hence, the accused persons abused the complainant in filthy language and assaulted him by fist and kick blows. It is also alleged that accused no.1 Bharat Gund assaulted the complainant on his right cheek by way of stone. Moreover, the complainant also sustained injury near his chin. However, watchman at the Karkhana intervened and relieved the said scuffle. It is further alleged that thereafter the accused persons took the complainant to Nipani Chowk and again the assaulted the complainant at the said place on the road by way of fist and kick blows and gave him threats that they would kill him. However, (4) Rangnath Gund, Satish Patil and Nanasaheb Gund intervened and relieved the said quarrel. Thereafter wife of the complainant came there and she carried the complainant to Shiradhon by rickshaw. They made a complaint at Shiradhon Police Station. Police at Shiradhon sent the complainant at Government Hospital for medical treatment. It is also alleged that since the complainant sustained injuries on his face and since his mental condition was not proper, he lodged the complaint against accused persons on 18-10-2007. 5. The prosecution has examined as many as six witnesses to substantiate the charges levelled against the accused persons under Sections 325, 323, 504, 506 read with Section 34 of Indian Penal Code, as follows : (1) Ramrao Jadhav (PW 1) - Spot Panch. (2) Rangnath Gund (PW 2) - Eye witness (turned hostile). (3) Dhananjay Gund (PW 3) - Complainant (Injured person). (4) Surekha Gund (PW 4) - Wife of complainant. (5) Rajendra Gund (PW 5), and (6) Dr. Anand (PW 6) - Who gave treatment to the complainant. (5) 6. At the outset, although the alleged incident occurred on 6-9-2007, the FIR came to be lodged on 18-10-2007 i.e. almost after the lapse of about one and half month and prosecution tried to give explanation in that respect contending that the complainant sustained injuries on his face and his mental condition was not proper which resulted into the said delay. However, the injury certificate Exhibit 42 does not disclose that the complainant Dhananjay (PW 3) i.e. injured was hospitalized for any period for the injuries mentioned in the injury certificate and there is nothing on record that mental condition of Dhananjay (PW 3) was not proper. Hence the explanation given by the prosecution for the said delay is, apparently, not convincing and plausible and said inordinate delay of one and half month in lodging the FIR vitiates case of the prosecution. 7. Moreover, although the allegation of complainant Dhananjay (PW 3) in respect of very assault is that accused no.1 Bharat Gund assaulted him by stone on his right cheek. However, Dr. Anand (PW 6) has categorically stated in his deposition that when he examined said injured on 6-9-2007, he found the following injuries : (6) 1. Contusion on left Mandibulav region - 5 cm. X 3 cm. 2. Abrasion on 2nd toe dorsally - 0.5 cm. X 0.5 cm. 3. Abrasion over left cheek upper part - 0.5 cm. X 0.5 cm. Dr. Anand (PW 6) has also issued injury certificate in that respect and it is apparent from the evidence and injury certificate that injured Dhananjay (PW 3) had sustained injury on left cheek and not on right cheek. Hence, it is apparently clear that there is vital discrepancy and variance in the allegation of injured Dhananjay (PW 3) in respect of injury sustained by him on cheek, in his testimony and medical evidence which also vitiates the prosecution case. 8. Moreover, it is further apparent that the incident occurred in two parts i.e. first part of the incident occurred at the gate of Karkhana and second part of the incident occurred at the square. However, there is no eye witness to the occurrence to the first part of the incident and there is vital variance and discrepancy in the allegation of injured in respect of injury sustained by him and the medical evidence as aforesaid in respect of first part of the incident, whereas in respect of second part of the incident which occurred at square, eye witness (7) Rangnath (PW 2) has turned hostile and not supported the case of the prosecution. It is pertinent to note that no other eye witness is examined by the prosecution. 9. Moreover, learned trial court has also observed that the complainant has not given the specific abuses which were allegedly given by the accused persons and allegedly insulted him in filthy language. Therefore, learned trial court has observed that the prosecution has failed to prove the charges in that respect and apparently there is no flaw in the said observation. 10. In the circumstances, there are discrepancies and infirmities in the prosecution case which go to the root of the matter and, therefore, the view adopted by the learned trial court while acquitting the accused, after scrutinizing and assessing the evidence on record is a possible view, and the same does not appear to be perverse and the reasoning adopted therefor cannot be faulted with. Hence, present Criminal Application deserves to be rejected. 11. In the result, present Criminal Application which is sans merits stands dismissed and leave to file appeal is refused. (8) 12. Record and proceedings be sent back to the concerned court. ( SHRIHARI P. DAVARE ) JUDGE ......................... bgp/ka5044