1 (APPLN930.11) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.930 OF 2011 The State of Maharashtra .... Applicant. V/s Bhushan Bhikuram Palkar and Anr. .... Respondent. Mr. K.V. Saste, APP for the State Mr. Harshad Bhadbhade for Respondent. CORAM: V. M. KANADE & A.M. THIPSAY, JJ DATE : 12th October, 2011 P.C.:- 1. We have heard the learned APP for the State and the learned Counsel for the respondents/accused. Both have taken us through the judgment and order of the Trial Court as also evidence of the witnesses adduced by the prosecution, copies of which are annexed to the leave application. 2. This application for leave to file appeal is filed by the State of Maharasthra being aggrieved by the judgment and order passed by the Additional Sessions Judge, Ratnagiri 2 (APPLN930.11) dated 19.5.2011 by which the learned Judge of the Sessions Court was pleased to acquit the respondents herein for the offences punishable under section 367, 326, 504 and 506 of the Indian Penal Code. 3. Prosecution case, in brief, is that on 2/2/2009 in the afternoon one Gautam caught the hand of the mother of the accused and outraged her modesty. According to the prosecution, the said Gautam was mentally retarded person and in spite of that the accused were enraged by his behaviour and, therefore, at about 5.00 P.M, accused Bhushan picked up Gautam and asked him to sit on his motor-bike and took him to locality known as Golap Mohalla. In the evening, at about 5.45 p.m., the complainant received phone call from one Amit Bhatkar who informed him that the said Gautam was lying in injured condition under the Manewadi road bridge. FIR was registered against the accused at Gramin Police Station at 23.00 hours on 2/2/2009 for offences punishable under sections 326, 504 and 506 read with section 34 and section 367 of the Indian Penal Code. According to the prosecution, Gautam sustained fractured injury on his leg and also received head injury and the patient had to be treated as indoor patient for some days in the hospital. 4. Prosecution examined three eye witnesses in support of its case viz. P.W. 1 – Ramchandra Palkar, P.W. 2 – Shridhar 3 (APPLN930.11) Nakharekar and P.W. 4 – Benduram Palkar. Prosecution also relied on other circumstantial evidence. 5. Trial Court has considered the evidence of all the three alleged eye witnesses and has disbelieved their testimony by giving cogent reasons. So far as P.W.1 is concerned, Trial Court has observed that even though Gautam was taken away by Bhushan on his motor-bike, he did not raise any hue and cry or made any attempt of stopping the accused either by taking assistance of public or by following him in rickshaw or any other vehicle. Trial Court has also noticed that he did not even file a report with any Police Station which was situated near the market place and, therefore, his testimony is not relied upon by the Trial Court. So far as P.W. 2 is concerned, Trial Court has observed that though this witness has stated that he had seen the accused assaulting Gautam, he did not disclose this fact to anybody on that day or on the next day and though he was working from 2/2/2009 to 4/2/2009, he did not go to the Police Station and it was only on 4/2/2009 police have recorded statement of this witness. Trial Court, apart from finding that his conduct was unnatural, disbelieved him on account of delay caused in recording his statement by the Police. So far as P.W. 4 is concerned, according to him, he overheard conversation of the accused Bhushan and his father Bhikuram and even then he did not contact the complainant and though police had come to his village on 2/2/2009, he 4 (APPLN930.11) did not report this fact to police till police came to his residence on 5/2/2009. He did not inform this fact to any one. Trial Court, therefore, in our view has rightly observed that from the conduct of the said witness he appears to be a got up witness. Gautam has not been examined because he is admittedly a retarded person. 6. Trial Court, therefore, has given cogent reasons for not accepting the case of the prosecution and, therefore, in our view, was justified in acquitting the accused since the case was not proved beyond the reasonable doubt. No case is, therefore, made out for grant of leave to file appeal. Leave is refused. Appeal does not survive. 7 Application is disposed of. (A.M.THIPSAY, J.) (V.M. KANADE, J.) 5 (APPLN930.11)