-:1:- IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPLICATION NO. 1812 OF 2008 APPLICATION NO. 1812 OF 2008 APPLICATION NO. 1812 OF 2008 The State of Maharashtra. ... Applicant. V/s. Babasaheb Vitthal Thorat & Ors. ... Respondents. Mrs. A.A. Mane, A.P.P. for the State. None for the Respondents. CORAM CORAM CORAM : K.U. CHANDIWAL,J. : K.U. CHANDIWAL,J. : K.U. CHANDIWAL,J. DATE DATE DATE : 28TH JULY, 2008. : 28TH JULY, 2008. : 28TH JULY, 2008. P.C. P.C. P.C. : : : . Heard learned A.P.P. 2. In the property dispute pertaining to Gat No.110 between the accused and the complainant, it is alleged that PW-1 Kadu Laxman Ahire while standing at Kharvandi S.T. Stand he was kicked by somebody and thereafter Babasaheb Vitthal Thorat started beating him, he kicked him on his mouth and private organ. Thereafter, accused was followed by other accused Chabu Bahiru More who wanted to throw stone on the head of the complainant. However it hit against his shoulder. Other accused also rushed and beat the complainant. On hearing chaos, his wife Bhagubai and sister in law Kantabai arrived on the spot. Accused torn their clothes. The complainant claimed that accused Babasaheb Vithal Thorat said that the complainant being Mahar should be killed. The -:2:- complainant submitted that he was un-conscious for some time and later on filed F.I.R. in which he referred that the accused abused him by referring his caste. However, in the second F.I.R. at Exhibit 36, the complainant has alleged that he sustained injuries on his lip due to assault and clothes of his sister in law, were torn. 3. During the evidence of PW-1 portions marked A and B at Exhibit 35 were brought to his notice. As the abusive words which he referred in his evidence are not identical which is referred at Exhibit 35. If the witness was unconscious from 9.00 a.m. on 24.10.1995 till 11.00 a.m. to 12.00 noon on 25.10.1995, there was no reason for lodging the F.I.R. (Exhibit 35) at 10.30 a.m. The material discrepancy noticed by the learned Judge was of such a high nature which could not have been discarded. PW-3 Gautam did not support the prosecution. However, in the cross examination he admitted that on 24th he was not at Kharvandi Village and consequently, the panchanama at Exhibit 68 becomes a doubtful document. 4. PW-1 claimed that he was beaten at back. However, Dr. Dnyaneshwar did not notice any mark of assault by iron rod. Exhibits 71 to 74 produced on record, that itself does not indicate that there were any bleeding injuries to any of the witness or the -:3:- complainant. The tenderness means feeling of pain on pulpation which he recorded as per say of the complainant. 5. In the facts referred above, I do not see that there was any error on the part of the learned Ad-hoc Additional Sessions Judge-1, Niphad in acquitting the accused/respondents. 6. Hence, leave to appeal refused. (K.U. (K.U. (K.U. CHANDIWAL,J.) CHANDIWAL,J.) CHANDIWAL,J.)