1 cri-appln-5854-10 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 5854 OF 2010 The State of Maharashtra .. Applicant Vs. Gopi Prabhu Laxman Naik and ors. .. Respondents Mr. Y. S. Shinde, APP for applicant-State. CORAM: B. H. MARLAPALLE & U. D. SALVI, JJ. JANUARY 28, 2011. P.C. 1. We have heard Mr. Shinde, the learned APP for the applicant- State. 2. This is an application filed by the State of Maharashtra for seeking leave to appeal under Section 378 (3) of Cr.P.C. against the order of acquittal passed on 13/8/2010 in Sessions Case No. 564 of 2009 by the 2 cri-appln-5854-10 learned Ad-hoc Additional Sessions Judge, Sewree, Mumbai. 3. All the respondents came to be tried in Sessions Case No. 564 of 2009 for the offence punishable under Section 395 read with Section 397 of IPC. As per the prosecution case, Mohd. Ashfaq Khan Jamal Khan - (PW 2) lodged a complaint stating that while he was selling old clothes on Dadar railway bridge as a hawker, the accused used to collect Hafta (money) by using coercive methods from the hawkers and on 4/6/2009 in the mid-night, he was passing by the Dadar railway bridge towards his house. At that time, accused no.2 – Mohankumar met him and asked him to settle the matter of Hafta payments along with other persons like Gopi Naik, Santosh Kale etc. Mohankumar, Santosh and Ali Hasan caught hold of the complainant and accused Pechiappan with the help of knife stabbed him on his back and accused no.2 – Mohankumar gave blows of knife, whereas Gopi gave fist blows. He was taken to the hospital in unconscious condition and he regained his consciousness in Sion Hospital. He also stated that on earlier day i.e. on 3/6/2009 at about 7 a.m., the accused had demanded Hafta (money) but he had not paid and, therefore, he was assaulted. 3 cri-appln-5854-10 4. The prosecution examined PW 1 -Iqbal Gulam Nabi Shaikh, PW 2 – Mohd Ashfaq Khan, PW 3 – Mahesh Jadhav, PW 4 – Dr. Binit Jha, PW 5 – PSI Ms. Ashalata Walimbe, PW 6 – PI Shri Mahadev Bangale, I.O. And PW 7 – Santoshkumar Singh. PW 1- Iqbal Shaikh and PW 2 – Mohd. Khan claimed to be the eye witnesses and PW 3 – Mahesh Jadhav was a panch witness. PW 4 – Dr. Binit Jha was the Medical Officer. In the evidence, that was adduced before the trial court, it was noticed that PW 2 had filed as many as three different complaints on two different days i.e. 4/6/2009 and 9/6/2009. Exh. 21 was the first complaint, Exh. 38 was the printed FIR dated 9/6/2009 and there was a third complaint at Exh.55 for non cognizable offence. The complaint made in Exh. 21 was in contradiction with the complaint registered at Exh.38 and Exh. 38 was registered on 9/6/2009. Exh. 38 was a printed form of FIR and the learned trial Judge referred to the scheme of Section 154 of Cr. P. C. and noted that the Exh. 38 could not be treated as an FIR and if the complaint at Exh. 21 was connected by FIR recorded on 9/6/2009, it did not disclose any offence. In addition, there was contradiction between the evidence of PW 1, PW 2 and PW 7 on material circumstances. PW 2 claimed that he 4 cri-appln-5854-10 was unconscious when he was picked up from the spot of the incident, but the medical papers did not support this. He also stated that he had not informed the incident to anyone other than Mr. Agarwal, whereas PW 7 – Santoshkumar Singh claimed that he had visited PW 2 – Mohd Ashfaq Khan in the hospital and after he regained consciousness, PW 2 had given the details of the assault on him to PW 7. This was obviously a contradiction to what PW 2 – Mohd Ashfaq Khan himself had stated, namely, that he had not disclosed the offence to anyone except to Mr. Agarwal. PW 7 – Santoshkumar Singh was obviously a got up witness, which has been rightly noted by the trial court. In his examination-in- chief, he had stated that he had seen the accused – Avinash while running from the side of Dadar railway bridge at the time of the incident, whereas in his cross-examination he admitted that said Avinash had lodged complaint against him and in the said complaint he came to be convicted. 5. The trial court has given detailed reasons after examining the evidence of all the witnesses, including the injury certificate (Exh.36) issued by PW 4 – Dr.Jha, which did not mention the dimensions of the injuries, but the doctor stated the dimensions of the injuries before the court in his oral depositions. The doctor further clarified that the injuries were 5 cri-appln-5854-10 not self inflicted injuries, but could be caused by some other person. The trial court, in our view, was justified in recording a finding that the prosecution could not prove its case against the accused beyond reasonable doubts. In addition, we have also gone through the depositions of these witnesses, as are available in the R and P and we find that the evidence of the prosecution does not call for any reconsideration by the High Court. 6. Hence, leave to appeal is refused and the application is rejected. (U.D. SALVI, J.) (B. H. MARLAPALLE, J.)