1 crap3373.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 3373 OF 2010 WITH CRIMINAL APPLICATION NO. 3374 OF 2010 The State of Maharashtra ...Applicant VERSUS Chandrabhagabai Nagorao Sangale and ors. ...Respondents ..... Shri V.G.Shelke, advocate for applicant ..... CORAM : SHRIHARI P.DAVARE, J. DATED : 17 th March, 2011 PER COURT : 1 Heard Shri V.G.Shelke, learned A.P.P. for the applicant. 2 This is an application preferred by the applicant/State seeking leave to file appeal challenging the judgment and order of acquittal, dated 8.4.2010, rendered by the learned 2 nd Joint Judicial Magistrate, First Class, Kandhar in Summary Criminal Case No. 190 of 2008, thereby acquitting the respondents/accused nos. 1 to 3 for the offences punishable under Sections 294, 323, 506 r/w Section 34 2 crap3373.10 of the Indian Penal Code. 3 The prosecution case, in brief, is that, on 25.1.2008 at about 10.00 a.m. at Bori (Khurd), Taluka Kandhar, accused nos. 1 to 3 abused the first informant, namely Ganesh Kamble i.e. Prosecution Witness No. 2 in filthy language. Moreover, accused nos. 2 and 3 assaulted the said first informant by slaps and fist blows, as well as accused nos. 1 to 3 threatened the said first informant to kill him in front of office of Grampanchayat, Bori (Khurd), Taluka Kandhar. At this juncture, Grampanchayat members, Ramesh Gorpalle, Ganesh Jaibhaya and father of informant, namely Sopan Kamble and Sanjay Mundhe intervened and rescued the informant. Thereafter, the informant lodged the complaint against the accused on 14.2.2008. 3 To substantiate the charges levelled against the accused persons, the prosecution examined, in as much as six witnesses, such as PW1 Ramesh Gorpalle; PW2 Ganesh Kamble i.e. first informant; PW3 Mangesh Kamble; PW4 Sopan Kamble: PW5 Bhagwat Wadje i.e. spot panch and PW6 Ramchandra Shinde- Investigating Officer. 4 I have perused the impugned judgment and order, dated 8.4.2010 with the assistance of the learned Additional Public 3 crap3373.10 Prosecutor, and apparently it appears that although the alleged incident occurred on 25.1.2008, the complaint came to be lodged by the first informant i.e.PW2 Ganesh Kamble after the substantial delay of 19 days i.e. on 14.2.2008 and the prosecution has not given any plausible explanation in respect of the said delay. Hence, the Trial Court has rightly held that the said unexplained delay hampered the case of the prosecution. 5 Moreover, it is also significant to note that although there were eye witnesses to the incident, namely, Sanjay Mundhe, Ramesh Gorpalle and Ganesh Jaibhaya, who rescued the quarrel between the informant and the accused, they were not examined by the prosecution for the reasons best known to the prosecution, and the said inaction on the part of the prosecution also sustains the fatal blow to the prosecution. Moreover, it is also pertinent to note that although it is alleged by the prosecution that PW2 Ganesh Kamble i.e. the first informant during the assault sustained injury i.e. swelling on left part between ear and eye, caused by the accused persons, the prosecution has not produced any injury certificate either from the Government Hospital or from the private hospital, and therefore, the Trial Court has rightly held that suspicion is created in respect of the injury sustained by PW2 Ganesh Kamble i.e. the first informant, and consequently, suspicion is created in respect of occurrence of 4 crap3373.10 alleged incident. It is also reflected from the judgment that there were complaints filed by the first informant and the accused persons against each other and there was enmity between the parties, and therefore, possibility cannot be ruled out that the present false complaint has been filed by PW2 Ganesh Kamble against the accused persons and doubt is created about the truthfulness of the said complaint, as observed by the Trial Court. 6 In the circumstances, the view adopted by the Trial Court, after assessing and scrutinizing the evidence before it, is a probable view and same does not appear to be perverse, and hence, no interference is called for in the appellate jurisdiction. Moreover, the reasoning adopted by the Trial Court while acquitting the accused also cannot be faulted with, and there does not appear to be any flaw therein, and therefore, present application deserves to be rejected. 7 In the result, present application, which is sans merits, stands dismissed. Leave to file appeal is refused and present application stands disposed of accordingly. (SHRIHARI P. DAVARE), JUDGE. dbm/crap3373.10