(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. Criminal Application No. 3089 of 2010 The State of Maharashtra, Through Police Station, Kuntur, .. Applicant Taluka : Naigaon, (Original District : Nanded. complainant) versus 1. Shankar s/o. Mahajan Jakewad, Age : 37 years, Occupation : Agriculture. 2. Shamrao s/o. Kanthiram Yamalwad, Age : 30 years, Occupation : Agriculture. 3. Motiram s/o. Mahajan Jakewad, Age : 60 years, Occupation : Agriculture. 4. Shankar s/o. Narayan Yamalwad, Age : 27 years, Occupation : Agriculture. 5. Irwant s/o. Shankar Yamalwad, Age : 23 years, Occupation : Agriculture. 6. Kishan s/o. Mahajan Dandewad, Age : 40 years, Occupation : Agriculture. (2) 7. Balaji s/o. Maroti Bonewad, Age : 40 years, Occupation : Agriculture. 8. Govind s/o. Bhujanga Bonewad, Age : 42 years, Occupation : Agriculture. 9. Tulshiram s/o. Gangaram Dandewad, Age : 55 years, Occupation : Agriculture. 10. Pralhad s/o. Shankar Yamalwad, Age : 35 years, Occupation : Agriculture. 11. Govind s/o. Sambhaji Baste, Age : 55 years, Occupation : Agriculture. 12. Kondiba s/o. Mohnaji Kambalwad, Age : 55 years, Occupation : Agriculture. All R/o. Ghungrala, Taluka : Naigaon [Kh.], .. Respondents District : Nanded. (Original accused) ....................... Mr. B.V. Ghatge, Additional Public Prosecutor, for the applicant. Mr. M.V. Ghatge, Advocate, holding for Mr. B.N. Gadegaonkar, Advocate, for respondent nos.1 to 12. (3) ........................ CORAM : SHRIHARI P. DAVARE, J. DATE : 20TH JUNE 2011 COURT'S ORDER : 1. Heard learned Counsel for the parties. 2. This is an application preferred by the applicant / State seeking leave to file appeal challenging the judgment and order dated 30-4-2010, rendered by the learned Judicial Magistrate (First Class), Naigaon (Bazar) [District : Nanded], in Summary Criminal Case No. 347 of 2004, thereby acquitting the respondents (original accused) for the offences punishable under Sections 143, 147, 148, 447, 323 and 506 read with Section 149 of Indian Penal Code. 3. I have perused the impugned judgment dated 30-4-2010 and Record and proceedings with the assistance of learned Counsel for parties. 4. Parties are referred to as per their original status i.e. complainant and accused. (4) 5. The prosecution story, in brief, is as follows :- On 10-6-2004, when the complainant Madhav was doing agricultural work in his field along with his wife Anusayabai, servant Ganesh and one Kishan, at about 12.00 noon, all accused persons entered in the field of the complainant. Some of the accused were having sticks with them. Accused asked the complainant to stop the agricultural work. When the complainant showed 7/12 extract of the field, accused persons snatched bag containing documents from the complainant and threatened to beat him. It is alleged that the accused persons assaulted the complainant by means of sticks. It is also alleged that the complainant received injury on his thumb. It is further alleged that when wife of the complainant came to intervene, accused persons assaulted her by handle of axe and caused injury on her right cheek. Accused persons also assaulted Kishan, Sheshrao and Ganesh by kicks and fist blows and also threatened them to kill if they come to the field. On 10-6-2004, complainant Madhav lodged complaint at Police Station, Kuntur, vide Crime No. 64/2004 for the alleged trespass, assault upon complainant and others, criminal intimidation and threats given to them by the accused persons. (5) 6. To substantiate the charges levelled against the accused, the prosecution examined as many as six witnesses as mentioned below : (1) Madhav (PW 1) - Complainant. (2) Anusayabai (PW 2) - Wife of complainant. (3) Kishan (PW 3) - Injured. (4) Kanthiram (PW 4) - Panch witness. (5) Ganesh (PW 5) - Servant of PW 1. (6) Dr. Ashalata Gaikwad (PW 6) - Medical Officer. 7. Admittedly, Kanthiram (PW 4), Panch witness, has not supported the case of the prosecution. Pertinently, Ganesh (PW 5), who is servant of Madhav (PW 1), has stated in his deposition that he does not know who received injury during scuffling. He has also stated that he does not know where Kishan received injury. He has also admitted that he does not know who has beaten Madhav, Anusayabai and Kishan. He has also admitted that he is deposing on the say of complainant Madhav who is his master. Accordingly, admissions by the said witness implicitly diminishes his credibility. (6) 8. As regards the testimony of Madhav (PW 1), learned trial court has observed that he did not state specific act done by each of the accused during commission of the alleged offence, and record shows that accused no.4 Shankar is real brother of the complainant; further, accused nos.5 and 10 are his real nephews, but no reason is explained as to why they would assault the complainant. Moreover, no evidence regarding enmity between the complainant and his brother is brought on record. 9. As regards Anusayabai (PW 2), it is observed by the learned trial court, that no specific name of accused having stick or beating them is stated by her. Learned trial court has also observed that Kishan (PW 3) did not state who were having sticks, and who assaulted the complainant by means of stick. Learned trial court has further observed that no evidence is adduced to prove that object of alleged unlawful assembly was to commit any act enumerated in Section 141 of IPC. Learned trial court has further observed that the prosecution did not adduce cogent and sufficient evidence of reliable witnesses to prove that accused persons were members of an unlawful assembly at the relevant time, they were armed with deadly weapons at that time, they committed criminal trespass in the field of the complainant, and voluntarily caused hurt to the complainant and others and (7) threatened them to cause hurt or kill. It is further observed that no sufficient evidence is adduced to prove that accused persons formed an unlawful assembly in prosecution of their common object to cause hurt by means of deadly weapons to the complainant, his wife, relative Kishan and servant Ganesh by the said acts. Learned trial court has further observed that though medical evidence is produced on record, evidence of the prosecution witnesses is vague regarding beating by accused persons. Learned trial court has also observed that the prosecution has failed to prove guilt against accused beyond reasonable doubt, and apparently there is no flaw in the said conclusion and reasoning given therefor. 10. In the circumstances, after scrutinizing and analyzing evidence on record, the view adopted by the learned trial court, while acquitting the accused persons, for the charges levelled against them, by way of impugned judgment dated 30-4-2010, is a possible view and the same does not appear to be perverse, and the reasoning given therefor cannot be faulted with. Hence, present application being devoid of merits deserves to be rejected. 11. In the result, present Criminal Application which is sans merits, stands dismissed, and leave to file appeal is refused. (8) 12. Record and proceedings be sent to concerned court. ( SHRIHARI P. DAVARE ) JUDGE ......................... bgp/ka3089