IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL MISC. APPLICATION NO. 204 OF 2010 IN STAMP NUMBER MAIN NO. 772 OF 2010 STATE THROUGH POLICE INSPECTOR ... Applicant Versus SHRI MAHESH YENDE AND ANR., ... Respondents Mr. C. A. Ferreira, Public Prosecutor for the Applicant. Mr. S. Narvekar, Advocate for the Respondents. Coram:- N. A. BRITTO, J. Date:- 11th October, 2010 P.C.: Heard. 2. The State is seeking leave to appeal against the acquittal of the accused by judgment dated 11/11/2009 of the learned Additional Sessions Judge, Mapusa, acquitting the accused under Sections 326,506(II) r/w 34 IPC. 3. The accused were charged and tried with the allegation that on 22/05/2004 at about 19.15 hours at Mapusa market, in front of N.B. Narvekar's shop, the accused with their common intention assaulted one PW3/Uttam Yende with coita thereby causing him grievous injury and also threatened him. 4. The learned trial Court, it appears had initially convicted and sentenced the accused, but the learned Additional Sessions Judge has acquitted the accused. 5. The accused are the younger brothers of the complainant - PW3/Uttam Yende and except the said PW3/Uttam Yende, there was no eye witness examined by the prosecution. There appears to be enmity between the accused on one hand, and the said PW3/Uttam Yende on the other hand, on account of ancestral property. The said PW3/Uttam Yende was alleged to have been assaulted by the accused, while he was worshiping near Ganesh Temple, infront of Bata showroom, by accused no.2 giving a fist blow on his left cheek and accused no.1 giving a coita blow on his head. One Laxman, who is stated to have taken the injured to Asilo hospital was not examined. PW3/Uttam Yende when shown the coita M.O.1, stated that it was not the coita with which he was assaulted and further stated that the police did not investigate the case properly. It appears that the shirt which PW3/Uttam Yende was wearing was also not attached. 6. The learned Additional Sessions Judge noted that except for the evidence of PW3/Uttam Yende there was no evidence of any eye witness to the incident. The learned Additional Sessions Judge, noted that PW3/Uttam Yende was not in a position to even identify the shirt worn by him and that there was also nothing in the evidence of PW5/Dr. Girish Pednekar to suggest that the said shirt was kept for any purpose in the hospital. PW1/Abimanyu Padwal had stated that shirt which was attached by PW9/ASI Yeshwant Thakur was not the shirt which was on the person of PW3/Uttam Yende and therefore it was not known as how, from where or in whose possession the said shirt came to be attached. The learned Additional Sessions Judge has observed that the version given by PW3/Uttam Yende was not such that the accused could be convicted on the basis of the same and that there was a doubt in the case of the prosecution as projected. 7. Considering the facts of the case, the view held by the learned Additional Sessions Judge appears to be plausible view, in the absence of any other evidence forthcoming to support the case of PW3/Uttam Yende when the incident had taken place in a busy locality and in the background of the enmity between him and his brothers and other inconsistencies, in the case. 8. This is not a fit case for grant of leave to appeal. Application dismissed. N. A. BRITTO, J. NH