1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application (APPA) No. 154 of 2009 in Criminal Appeal No. of 2010 Prashant Rajendra Ingale ..VERSUS.. Devidas Mahadeorao Dhavane and others Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. Sachin Patil, Advocate for the applicant. Mr. S.M.Bhagde, A.P.P. for Respondent No.4-State None for respondent nos.1 to 3. CORAM : Prasanna B. Varale, J. DATED : 11 th Octo ber , 2010 . Heard. This is an application filed by the applicant/appellant, the son of original complainant, for leave to file appeal challenging the judgment and order passed by the trial Court i.e. Judicial Magistrate, First Class, Tiwasa on 03/9/2009 in Regular Criminal Case No. 261/2008, thereby acquitting the accused persons from the offences punishable under Section 325, 506-A r/w 34 of Indian Penal Code. Learned Advocate for the applicant/appellant submits that the learned trial court has not considered the evidence of complainant and other witnesses, properly. I have perused the record. Perusal of impugned judgment shows that on appreciation of the evidence on record, the trial court found that the accused were the owners of the agricultural field and the filed was in their possession. It is also observed by the learned trial court that the ocular evidence do not support the case of the 2 prosecution. The so called eye witnesses namely PW3 Sou. Meenabai and P.W.4 Diwakar Ingle have given certain admissions in their cross- examination. P.W.3 Meenabai admitted in her cross-examination that no incident of beating took place in her presence. She further admitted that she reached on the spot after the incident was over and she do not know anything about the incident. PW4 Diwakar Ingle admitted his cross-examination that he reached on the spot after reaching Meenabai. He further admitted that he was not aware as to what had happened prior to his reaching on the spot. This witness has also changed the spot of the incident. In view of the admissions of these witnesses, their presence on the spot becomes doubtful and as such the learned trial court has rightly observed that these witnesses are not reliable witnesses. The prosecution was also unable to establish the seizure of the stick used in the incident as alleged by the prosecution. The medical evidence also do not support the case of the prosecution. The learned trial court on considering the ocular evidence and medical evidence, arrived at a conclusion that the prosecution has failed to bring home the guilt as alleged against the accused persons. Learned Advocate for the applicant/appellant was unable to show that the observations of the court below are contrary to the evidence on record. Learned Advocate for the applicant/appellant further submits that the matter be remanded to the trial court for the reason that an application was filed for calling the witness and to prove the cury report (Weapons report) and the said application was not decided by the trial court pending the trial. I am unable to agree with the submission of learned Advocate for the reason that the view taken by the trial court is based on appreciation of the evidence on record. 3 There is no merit in the application and as such it is needless to state that the prayer for remand cannot be considered at this stage. In my opinion, the view taken by the trial court is just and probable. Hence, this is not a case where leave to file appeal can be granted. In the result, the application for leave to file appeal is rejected. Consequently, the appeal fails. JUDGE Diwale