1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.5241/2010 --- The State Of Mah Applicant. VERSUS Vijay Supadu Patil Respondent. *************************************** Mrs. Y.M.Kshirsagar, APP for Petitioner *************************************** CORAM : SHRIHARI P. DAVARE, J. DATE : 19 th JULY, 2011. PER COURT : 1. None appears for the respondent although served. Heard Mrs. Y.M.Kshirsagar learned APP for the applicant. 2. This is an application preferred by the applicant-state, seeking leave to file appeal challenging the judgment and order dated 18.8.2010, rendered by the learned Judicial Magistrate First Class, Parola in R.C.C.No. 97/2003, thereby acquitting the respondent/original accused for the offence punishable under section 429, 504 of Indian Penal Code. 2 3. I have perused the impugned judgment dated 18.8.2010 and record and proceeding with the assistance of learned APP for the applicant. Respondent remained absent although served. 4. Respondent/original accused faced trial for the offence punishable under section 429 and 504 of Indian Penal Code and allegedly committed mischief by beating to the ox of the complainant by wooden stick on 23.7.2003 at about 8.00 p.m. and also for having intentionally insulted and thereby gave provocation to the complainant namely Namdeo Patil, intending or knowing it to be likely that such provocation would cause said complainant to break the public peace. 5. To substantiate said charges, prosecution examined as many as seven witnesses as mentioned below : 1. PW 1 Complainant Namdeo Maharu Patil 2. PW 2 son of the complainant Sahebrao Namdeo Patil, alleged eye witness. 3. PW 3 Dr. Balravi Suryawanshi Development Officer. 4. PW 4 Panch witness Subhash Ramdas Patil. 5. PW 5 Eye witness Ashabai Dayaram Koli. 6. PW 6 PSO PHC Bhagwat Parbhat Patil. 7. PW 7 Vinayak Namdeo Baisane Investigating officer. 3 6. Moreover, prosecution also produced documentary evidence such as complaint dated 31.7.2003 Exh.15, letter to investigating officer to in charge Veterinary Dispensary dated 31.7.2003 Exh.20, Postmortem examination report dated 1.8.2003 Exh.21, spot and seizure panchnama dated 31.7.2003 Exh.23. 7. At the outset, although the alleged incident occurred on 23.7.2003 the complaint came to be lodged on 31.7.2003 i.e. after delay of 8 days and no plausible explanation has been given by the prosecution in that respect which sustains fatal blow to the case of the prosecution. Moreover, the complaint and supplementary statement discloses the time of incident at 8.00 a.m. but the complainant stated in his examination-in-chief, the time as 08.00 p.m. which apparently is the major discrepancy and thereby hampers the prosecution case. Moreover, the alleged weapon i.e. wooden stick was recovered after gap of eight days and said recovery was not from the accused nor there is any discovery from the accused and weapon i.e. wooden stick is commonly available and therefore, consequently same cannot be connected with the alleged offence. 4 8. On perusal of the testimony of PW 1 Namdeo Patil and PW 2 Sahebrao Patil, it is evident that both the said witnesses have not witnessed the actual assault by the accused upon the ox. True it is that PW 5 Ashabai has stated in her deposition that she witnessed that accused assaulted by wooden stick on the ox and more particularly on the waist and thereby it was fractured, however, she admitted in the cross examination that a mob was gathered and person from the said mob informed her that accused Vijay assaulted the ox and thereby she got the knowledge of said fact that accused assaulted the ox. Moreover, she also stated in the cross examination that a bullock cart was kept in between the place where she was washing the utensils and the place of incident and therefore, her vision of occurence of incident was obstructed. She further stated that there was always nuisance by the accused to her and said statement and admission in the cross examination creates suspicion about her testimony, and hence, same cannot be relied upon. 9. As regards alleged offence under section 504 of Indian Penal Code, learned trial court has rightly observed that, for the said offences, the specific abuses given by the accused to the complainant Namdeo Patil are 5 necessary to be brought on record, but in the complaint Exh.15, the specific abuses uttered by the accused are not mentioned by the complainant. Learned trial court also observed that PW 1 complainant Namdeo has not deposed exclusively in tune with the ingredients of section 504 of Indian Penal Code, and hence, the essential ingredients in respect of the said offence are not made out. 10. In the circumstances, after scrutinizing and appreciating the evidence, the view adopted by the learned trial court while acquitting the accused is a possible view, same does not appear to be perverse and reasoning given therefor by the learned trial court, also cannot be faulted with and hence, no interference is warranted therein under the appellate jurisdiction. Therefore, present application deserves to be rejected. 11. In the result, present application stands dismissed. Leave to file appeal is refused. R & P be sent back to the concerned court. [ SHRIHARI P. DAVARE ] JUDGE ... AAA/5241.10