1 crap988.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 988 OF 2011 The State of Maharashtra ...Applicant VERSUS Sugriv Shivaji Mane ...Respondent ..... Smt. Y.M.Kshirsagar, advocate for applicant/State ..... CORAM : SHRIHARI P.DAVARE, J. DATED : 17 th March, 2011 PER COURT : 1 Heard Smt. Y.M.Kshirsagar, learned A.P.P. for the applicant. 2 This is an application preferred by the applicant/State seeking leave to file appeal challenging the judgment and order, dated 10.12.2010, rendered by the Special Judge, Osmanabad in Special (Atro.) Case No. 14 of 2009, thereby acquitting the accused i.e. respondent herein for the offences punishable under Section 3 2 crap988.11 (1) (xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and under Section 506 of the Indian Penal Code. 3 The prosecution case, in brief, is as follows :- According to the complainant Sunita Gade, aged about 26 years, she used to do labour work and used to reside at Tandulwadi, since she was married with Jalindar Gade in the year 1997 and was residing along with her mother-in-law, husband and two sons and one daughter. It is alleged that on 16.11.2006 at about 2.00 p.m. PW1 complainant Sunita Gade along with Wachhabai Waghmare, Sangita Mhaske and Uttam Mhaske proceeded towards the forest of Saramkundi road for fetching fire wood and reached there at about 2.30 p.m. and Wachhaba, Sangita and Uttam proceeded to different directions. At about 2.45 p.m., when she alone was collecting fire wood, at that time, suddenly somebody caught her from backside, and therefore, she gave a jerk and shouted. At that time, she noticed that accused Sugriv had fallen down due to the said jerk. She got frightened and started running. The accused also chased her and asked her to stop, stating that she would do nothing. Thereafter, accused caught her hand and pulled her down and pressed her breasts by one hand. She, therefore, shouted. After hearing her voice, Jaywant Gaikwad rushed towards her and gave one kick blow 3 crap988.11 to the accused and separated him from the complainant. At that time, Prabhakar Gaikwad, Pradip Gaikwad, Vaijinath Gaikwad, Sangita Mhaske and Uttam Mhaske gathered there on the spot and all of them assaulted the accused Sugriv by means of wooden logs, fist blows and leg kicks. Thereafter, all of them caught hold of accused and brought him in the village Tandulwadi. Thereafter, her husband Jalindar Gaikwad gave information to police by telephone call. Police personnel arrived and took the accused in custody and the complainant and her husband also came to the police station and PW1 Sunita lodged the complaint, and offence was registered against the accused under Sections 354 and 506 of the Indian Penal Code and Section 3 (1) (xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act under C.R. No. 96 of 2006. 4 To substantiate the charges levelled against the accused, the prosecution has examined in as much as three witnesses, namely PW1 complainant Sunita Gade; PW2 Jaywant Gaikwad, eye witness and PW3 Babasaheb Gaikwad, panch witness. 5 It is apparent that the prosecution case is solely relied upon the testimonies of PW1-Sunita Gade i.e. first informant and PW2-Jaywant Gaikwad the alleged eye witness. However, there appears to be variance in the depositions of both the said witnesses, 4 crap988.11 since PW1 Sunita Gade in her deposition stated that the alleged incident continued for five minutes; whereas PW2 Jaywant Gaikwad stated in his deposition that the incident continued for about ten minutes. Moreover,there are material contradictions in the testimonies of both the said witnesses, since PW1 Sunita Gade deposed in her deposition that accused embraced her from backside and she gave jerk and thereupon accused was fallen down and she started running and accused chased her; whereas PW2 Jaywant Gaikwad stated that he had seen the accused who had caught waist of Sunita. Moreover, it is also significant to note that although PW2 Jaywant Gaikwad stated that one Prabhakar Gaikwad and other 5-6 persons had gathered at the place of incident, but none of them has been examined by the prosecution as independent witness for the reasons best known to the prosecution, since it has come on record that PW2 Jaywant Gaikwad belonged to same caste i.e. Mahar, to which complainant Sunita Gade belonged to. 6 Besides that, although PW1 Sunita Gade stated in her deposition that some of pieces of broken bangles were lying on the spot of incident during the occurrence of the incident, but the contents of the spot panchanama does not reflect that any pieces of bangles were seized from the spot thereunder. Moreover, as stated by PW2 Sunita Gade in her deposition, had she sustained abrasions 5 crap988.11 on her left hand during the occurrence of incident, then the police personnel would have referred her to the hospital for medical examination, but no such medical examination took place, and therefore, the Trial Court observed that her testimony appears to be doubtful and after thought. Moreover, sight cannot be lost of the fact that one Sessions case and one private case are pending against the complainant herself, and hence, Trial Court rightly observed that it is very difficult to place reliance on her testimony. 7 As regards panch witness PW3 Babasaheb Gaikwad, he admitted in cross-examination that maternal uncles of Sunita are from his Bhauki. He also admitted that accused had filed Criminal Case against him, Sunita and others before the Judicial Magistrate, First Class, Washi, and therefore, in that Criminal case PW3 Babasaheb Gaikwad has been cited as an accused, as well as it has come on record that he is distant relative of Sunita i.e. the complainant. Moreover, it is not disputed that the complainant has shown the spot of incident and panchanama was prepared and considering all these aspects, the testimony of PW3 Babasaheb Gaikwad and the contents of the panchanama also come under doldrums. 8 In the circumstances, the view adopted by the learned 6 crap988.11 Trial Court, after assessing and scrutinizing the evidence before it, acquitting the accused, is a probable view and no perversity is found therein. Moreover, the reasoning adopted by the Trial Court while acquitting the accused also cannot be faulted with, and therefore, no interference is warranted in the impugned judgment under the appellate jurisdiction. 9 In the result, present application bears no substance and same is devoid of any merits, and hence, same stands dismissed. Leave to file appeal stands refused and present application stands disposed of accordingly. (SHRIHARI P. DAVARE), JUDGE. dbm/crap988.11