(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. Criminal Application No. 1404 of 2011 Sakharam s/o. Jagannath Gund, Age : 60 years, Occupation : Agriculture, R/o. Sukali (Khurd), Taluka : Newasa, District : Ahmednagar. .. Applicant. versus 1. The State of Maharashtra. 2. Kashinath s/o. Trimbak Gund, Age : 60 years, Occupation : Agriculture. 3. Radhakisan s/o. Kashinath Gund, Age : 40 years, Occupation : Agriculture. 4. Chandrakant s/o. Kashinath Gund, Age : 35 years, Occupation : Agriculture & Service. 5. Rakhamabai w/o. Kashinath Gund, Age : 55 years, Occupation : Household. 6. Nandubai w/o. Radhakisan Gund, Age : 35 years, Occupation : Household. (2) 7. Meerabai w/o. Chandrakant Gund, Age : 30 years, Occupation : Household. 8. Annasaheb s/o. Baburao Thombal, Age : 40 years, Occupation : Agriculture. 9. Savitrabai w/o. Annasaheb Thombal, Age : 35 years, Occupation : Household. 10. Dnyandeo s/o. Annasaheb Thombal, Age : 30 years, Occupation : Agriculture. 11. Sunil s/o. Annasaheb Thombal, Age : 25 years, Occupation : Agriculture. All R/o. Sukali (Khurd), Taluka : Newasa, .. Respondents District : Ahmednagar. (Original accused) ....................... Mr. D.R. Markad, Advocate, for the applicant. Smt. Y.M. Kshirsagar, Additional Public Prosecutor, for respondent no.1. ........................ CORAM : SHRIHARI P. DAVARE, J. DATE : 23RD JUNE 2011 (3) COURT'S ORDER : 1. Heard Adv. Mr. D.R. Markad, for the applicant, and learned APP Smt. Y.M. Kshirsagar, for respondent no.1. 2. This is an application preferred by the applicant (original accused) seeking leave to file appeal challenging the judgment and order dated 9-3-2011, rendered by the learned Judicial Magistrate (First Class), Newasa, in R.T.C. No. 53/2010, thereby acquitting the respondents (original accused) for the offences punishable under Sections 447, 147, 148, 323, 504, 506 Part-II, read with Section 149 of IPC. 3. I have perused the impugned judgment and order dated 9-3-2011, and also perused the Record & Proceedings with the assistance of the learned Counsel for the parties. 4. Parties hereinafter are referred to as per their original status i.e. complainant and accused. 5. The brief facts of the complainant's case are that, on 30-1-2010 at about 12.00 'O' clock in the noon, when the complainant was digging bore well in his field i.e. Gut No. 36/1, at village Sukali (Khurd) (Taluka : Newasa, District : (4) Ahmednagar), the accused formed an unlawful assembly with common object and they were armed with deadly weapons, such as, sticks and axe, and in prosecution of the said common object, they trespassed in the field of complainant, abused complainant and his son, and threatened complainant and his son to kill, and assaulted them, but witnesses intervened and relieved them from the clutches of the accused persons, and hence the complainant lodged complaint at Police Station Kukana in that context. However, Police personnel did not take cognizance of the complaint and hence, the complainant filed private complaint under Sections 447, 147, 148, 323, 504, 506 Part-II, read with Section 149 of IPC. 6. To substantiate case of the complainant, he examined as many as four witnesses, mentioned below :- (1) Sakharam (PW 1) - Complainant himself. (2) Ganesh (PW 2) - Son of complainant. (3) Dnyandeo (PW 3) - Relative of complainant. (4) Anshabapu (PW 4) - Owner of bore well machine. 7. Pertinently, it is significant to note that Sakharam (PW 1) and Ganesh (PW 2) have not stated the specific abuses (5) allegedly given to them by the Accused, and it is nowhere stated in their deposition, how they were insulted by the said abuses. So is the position in respect of deposition of so called independent witness Anshabapu (PW 4), and his testimony is also silent in respect of the said abuses. So also, there is no whisper about the said abuses in the testimony of Dnyandeo (PW 3). It is material to note that the testimony of Anshabapu (PW 4), so called independent witness, speaks nothing about occurrence of the incident. Moreover, Dnyandeo (PW 3) has stated in his deposition that at the time of alleged occurrence of the incident, he was standing at the grocery shop of Digamber, and in the cross examination, he has stated that the said shop was situated about 500 feet from the complainant's field, and number of persons from Sukli village were present in front of the said shop on the day of the incident, and hence aspect of witnessing the occurrence of incident by Dnyandeo (PW 3) comes under suspicion. Apart from this, Dnyandeo (PW 3) is also relative of the complainant, as well as, Ganesh (PW 2) is also son of the complainant. Hence, the learned trial court has rightly observed that the reliance cannot be placed on the complainant and his relative witnesses to connect the accused with the alleged crime. 8. Besides that, the alleged weapons i.e. sticks and axe have not not been recovered from the accused persons and the (6) complainant and his witnesses have not given any explanation, what happened to the said weapons after occurrence of the alleged incident. 9. Hence, apparently, it is clear that there are deformities, discrepancies and infirmities in the complainant's case, and therefore, the learned trial court rightly came to the conclusion that the complainant has failed to prove the charges levelled against the accused beyond reasonable doubt and acquitted them therefrom, and the said view adopted by the learned trial court, after scrutinizing and appreciating evidence, is a possible view, and the same does not appear to be perverse, and therefore, no interference therein is called for in appellate jurisdiction. 10. In the result, present Criminal Application which is sans merits, stands dismissed, and leave to file appeal is refused. 11. Record & Proceedings be sent back to the concerned court. ( SHRIHARI P. DAVARE ) JUDGE ......................... bgp/ka1404