-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE JURISDICTION APPLICATION NO.509 OF 2008 [ Leave to Appeal ] IN APPEAL NO. OF 2008 The State of Maharashtra ..Applicant (Ori.Complainant) Vs. Nityanand @ Nitu Ganpat Yadav and Ors. ..Respondents (Ori.Accused Nos.1 to4) .... Ms.S.D.Shinde APP for Applicant-State .... CORAM: F.I.REBELLO AND CORAM: F.I.REBELLO AND CORAM: F.I.REBELLO AND SMT.V.K.TAHILRAMANI,JJ. SMT.V.K.TAHILRAMANI,JJ. SMT.V.K.TAHILRAMANI,JJ. DATE DATE DATE : APRIL 3, 2008 : APRIL 3, 2008 : APRIL 3, 2008 P.C.: P.C.: P.C.: 1. The State of Maharshtra has preferred this leave to appeal against the judgment and order dated 23rd October, 2007 passed by the learned 6th Ad-hoc Additional Sessions Judge, Sewree, Bombay in Sessions Case No. 551 of 2006. 2. By the said judgment and order, the learned Judge acquitted the Respondents-original accused of -2- the offences under Sections 302, 307 and 324 read with Section 34 of IPC. 3. We have heard the learned APP for the Applicant-State. We have perused the judgment and order passed by the learned Judge and we have also perused the entire evidence in this case produced by the learned APP. 4. It is the prosecution case that the Respondents assaulted Sriniwas @ Sinnu (deceased) as well as P.W.1 Sadashiv Bhima, P.W.9 Rajesh Poojari and P.W.13 Vishal Mahadik. As per the prosecution case, three witnesses were injured in the incident i.e. P.W.1, P.W.9 and P.W.13. All the three witnesses went to the hospital, however, history given by them in the hospital is "assault by unknown persons". Witnesses claimed that the accused persons were known to them. In such case, if the Respondents had actually assaulted the deceased as well as these witnesses, these witnesses would have named the Respondents and would not have stated that they were assaulted by unknown persons. The fact that the witnesses have stated that they were assaulted by unknown persons -3- is found in the EPR Register (Exhibits 48 to 50) maintained in the hospital. 5. There is major discrepancy as far as the scene of offence is concerned. The place of incident appears to have changed from time to time. As per the complainant P.W.13 Vishal, the incident took place infront of the house of one Sandip Gupta. However, as per the evidence of P.W.1 Sadashiv, the incident occurred by the side of the house of Sandip Gupta. As per the evidence of P.W.9 Rajesh, the incident occurred on the road in between Pratikshanagar and Shastrinagar, however, as per the spot panchnama, the incident occurred in Chawl No.C-14 infront of House No.101. However, it has been brought on record that there is no Room No.101 infront of that Chawl. The Voters List placed on record shows that Room No.101 is located only in Chawl No.C-11. From this, it is clear that the incident did not occur in front of Chawl C-14. The discrepancy in the scene of the incident, renders the version of the three eye witnesses doubtful. Moreover, there does not appear any proximate motive for the incident to take place. The prosecution case in respect of motive is that there -4- was some minor quarrel about 3 to 4 months prior to the incident. That quarrel was between accused persons and P.W.13 Vishal Mahadik. It is pertinent to note that it is not the prosecution case that the accused persons had any enmity or grudge against P.W.1 Sadashiv and P.W.9 Rajesh. Hence, there is no scope to presume that the incident had taken place due to inimical terms between the injured persons and the accused. Lastly, it is the prosecution case that injuries were caused by stone by Respondent no.1 and by others with bottle. The stone by which witnesses and deceased were assaulted, is very heavy and in such case, the injuries are not consistent with the assault by the said stone. Looking to all these facts, the learned Sessions Judge acquitted the Respondents-accused. 6. Looking to the evidence on record, we are of the opinion that the view taken by the learned Sessions Judge is a reasonable and possible view. Hence, no interference is called for. Application for leave to file appeal is rejected. -5- [SMT.V.K.TAHILRAMANI,J.] [F.I.REBELLO, J.] [SMT.V.K.TAHILRAMANI,J.] [F.I.REBELLO, J.] [SMT.V.K.TAHILRAMANI,J.] [F.I.REBELLO, J.]