1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL MISC. APPLICATION NO. 164 OF 2008 State of Goa .... Applicant V/s Mario Manuel Coutinho & 2 Ors. .... Respondent Ms. Winnie Coutinho, Public Prosecutor for the Applicant. CORAM : N.A. BRITTO, J. DATE : 15th SEPTEMBER, 2008 ORAL ORDER : The State is seeking leave to appeal against the acquittal of the accused under Sections 323,504,426,323 read with 34 IPC, by judgment dated 2/02/2008. 2. Heard Ms. Coutinho, the leaned Public Prosecutor and perused the records and proceedings. 3. The accused were charged and tried upon the first information filed by Salvador Soares/PW1 with the allegation that on 2/06/2003 at about 22.15 hrs. at Navelim Talaulim Kante, Margao, the accused with their common intention assaulted the said informant/complainant with stone on his left hand causing him grievous injury and accused no.2 pushed Smt. Maria Rosario/PW2 causing an injury on her left big toe and then the accused abused them with filthy words and thereafter accused no.1 pelted handy 2 stones on the glass window of the house of the said Smt. Mario Rosario thereby breaking a window glass causing loss of Rs. 30/-. 4. In the trial which was followed, the prosecution had examined the said Salvador Soares/PW1, Maria Rosario/PW2, 2 medical officers namely Dr. Afonso/PW3, Dr. Gomes/PW4 besides the panchwitness Angela Pires/PW5 and Noor Mohammad/PW6, who according to the prosecution was an independent witness. The Investigating Officer was examined as PW7. All the 3 accused also gave evidence and examined Stanley Mascarenhas/DW4 to say that Mario/A1 was at Colva on 2/06/2003 from 6.00 a.m. to 10.00 a.m. 5. The first two accused are the sons of the third accused (respondents herein) and they have to pass through the property of Maria Rosario/PW2, who is the mother's sister of Salvador Soares/PW1 and with whom the mother of the said Salvador Soares by name Martha also resides. There were strained relationships between both the said families at least for a year prior to the said incident. The said Martha was not examined by the prosecution and for no apparent reason though she was present with Maria Rosario/PW2. 6. There is no doubt that both Salvador Soares/PW1 and Maria Rosario/PW2 were found with injuries and as per the evidence of Dr. Gomes/PW4 there was a fracture on the head of the second metacarpal bone 3 of Salvador/PW1 and a soft tissue injury on the left hip. As per Salvador/PW1, Mario/A1 came, pulled him out and assaulted him on his left hand with a stone, and pushed him on the ground and A3 pushed him and gave bad words and Maria/PW2 came there and all three pushed her. In cross he stated that he did not know whether blood was coming out of the abrasion or not and further stated that he had sustained 3 abrasions/scratches on the back, but gave no explanation as to how the soft injury on the hip or the said abrasions were caused. Maria Rosario/PW2 has stated that Salvador/PW1 and Mario/A1 were fighting with one another after Mario/A1 had pulled Salvador Soares/PW1 out of the tempo and it is A1 who pushed her and A2 and A3 took part in assaulting them, without specifying as to what they exactly did. As per her it is Mario/A1 who gave bad words. The versions given by the above said witnesses are materially different which show their falsity. If Salvador/PW1 has stated that all 3 accused pushed Maria Rosario/PW2 down on the ground, according to Mario Rosario/PW2 it is only accused no.1 who had pushed her on the ground. If according to Salvador/PW1, Mario/A1 did nothing, as per Maria/PW2, A2 and A3 took part in the assault. The learned trial Court has rightly come to the conclusion that Noor Mohammad/PW6 was not present and in fact it was not the case of Salvador Soares/PW1 that he had gone along with him and left him in the pick up while he went to the house of his mother/aunty. The learned trial Court has found that there was no evidence at all against accused no.2 and, 4 moreover, has come to the conclusion that Noor Mohammad/PW6 was not present. In fact, the said Noor Mohammad/PW6 has stated that after the assault all the accused had ran away whereas it is the case of prosecution including that of Salvador Soares/PW1, that all were arrested from the scene of offence. 7. Considering the nature of injuries found on Salvador/PW1, it is more probable that they were caused in the scuffle between him and Mario/A1. The learned Magistrate has come to the conclusion that the evidence of all the aforesaid 3 witnesses is unreliable, and, it is rightly so. Considering the evidence of the first two witnesses namely Salvador Soares/PW1 and Maria Rosario/PW2, being contrary to one another and the presence of Noor Mohammad/PW6 being doubtful, the acquittal of the accused by the learned JMFC could not be faulted. 8. This is not a fit case to grant leave to appeal. Accordingly, the application is hereby dismissed. N.A. BRITTO, J. NH/-