1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO.530 OF 2004 The State of Maharashtra ..APPELLANT -VERSUS- Mahadev Raosaheb Jaibhai ..RESPONDENT ........ Mrs.B.R. Khekale, learned A.P.P. for appellant. Mr.N.C. Garud, advocate for respondent. ....... (CORAM : SHRIHARI P. DAVARE, J.) DATE : 19 th July, 2010. PER COURT : 1. Heard Mrs.B.R. Khekale, learned A.P.P. for appellant as well as Mr.N.C. Garud, learned counsel for respondent. 2. By present appeal, the appellant-State sought to challenge judgment and order dated 27th April, 2004 rendered by the Judicial Magistrate, First Class, Jamkhed in Regular Criminal Case No.120/2000, acquitting respondent (original accused) for the offence punishable under Section 25(1) r/w Section 4 of the Arms Act, 1959 and also sought leave to file appeal against the said judgment and order of acquittal. 3. I have perused the judgment and order of acquittal dated 27.04.2004 and Record and Proceedings with the assistance of learned counsel for the parties. 2 4. In short, the prosecution story is that about 683 villagers of village Telangshi filed an application to Jamkhed police station on 13.10.2000, informing that respondent (original accused) namely, Mahadev Waybase was Sarpanch of village Telangshi for 12 years and he formed a group of Gundas including Kantilal Jaibhai, Subhash Jaibhai, Arjun Shirole, Pandurang Waybase, Sunil Waybase, Anil Waybase, Mahadev Jaibhai and Bhausaheb Jaibhai. It is also alleged that the said persons have committed various offences in the village like extortion of money from villagers, theft of electric motor, pump, starter etc. 5. The sum and substance of application is that Mahadev Waybase and his companions have purchased four country made pistols and one of them is burst and they are in possession of remaining three pistols and the said persons of Mahadev Waybase's group have been absconding. Villagers had apprehension that there is danger to their life and limb from the group of Mahadev Waybase. The Police Personnel registered the said application as application No.242/2000 and P.S.I. Shridhar Kendre lodged complaint on 20.10.2010 on the basis of said application. Accordingly, search of the house of accused was conducted and they found two iron swords having grip rusted and one leather hunter having hard substance at one end and same were seized under spot panchanama at Exh.70. 6. To substantiate the charges against the accused, the prosecution has examined three witnesses namely, PW-1-Shridhar Kendre- API, PW-2-Madhukar Nagare- police constable, who was present at the time of search of house of accused and PW-3- Waman Thorat-Head constable, who was also present at the time of search of house of accused. After considering the evidence on 3 record, learned trial Judge concluded that the accused is not guilty of alleged offences, and therefore, acquitted him. Being aggrieved and dissatisfied with the said judgment and order of acquittal, appellant-State has preferred present appeal and sought leave to file appeal. 7. At the outset, it is seen from Record and Proceedings that the vital document i.e. panchanama of alleged seizure of weapon was drawn at Exh.17 and taken on record through testimony of P.W. 1-.A.P.I. Shridhar Kendre, without examining the panchas thereof. On perusal of the said panchanama at Exh.17, it is seen that there were two panchanas namely (1) Prabhakar Dhale and (2) Ashru Chaure but none of them is examined as an independent witness. Hence reliance placed on the contents of the said panchanama in respect of alleged seizure and recovery of weapons from the house of accused is out of place and unwarranted, since the said panch witnesses to the panchanama have not been examined and no reason/explanation for their non- examination is mentioned therein, and therefore, the recovery of the alleged weapon from the house of the accused is doubtful. Moreover, the said aspect is strengthened, since the prosecution has not examined any other independent witness and no explanation has been given in that respect and prosecution has examined only three police witnesses to substantiate the charges levelled against accused and said aspect speaks volumes for itself. 8. Besides that, it is also material to note that although application by 683 villagers was submitted to Jamkhed police station on 13.10.2000, the F.I.R. came to be lodged on 20.10.2000 after delay of seven days and no proper explanation is given by the prosecution in respect of the said delay and hence, the said delay 4 also hampers the case of prosecution and raises doubt about the case of the prosecution. 9. In the circumstances, after scrutinizing and appreciating the evidence on record, the view adopted by learned Trial Judge is a possible view to be adopted and reasonings given by learned trial Judge, apparently, can not be faulted with and view taken by learned Judge does not appear to be perverse, and therefore, there is no substance in application preferred by appellant seeking leave to file appeal and same deserves to be rejected. 10. In the result, the prayer made by appellant-State seeking leave to file appeal against judgment and order of acquittal dated 27th April, 2004 stands rejected and leave to file appeal stands refused, and consequently, present appeal stands dismissed. Record and Proceedings be sent back to the concerned Court. (SHRIHARI P. DAVARE), JUDGE gas/cria530.04