JUDGMENT 1. Heard Mr. Rivankar, learned Public Prosecutor appearing on behalf of the appellant and Mr. De Sa, learned Counsel appearing on behalf of the respondents. 2. This is a State appeal against acquittal. 3. The respondents (accused) were tried by the learned Judicial Magistrate First Class in Criminal Case No. 35/S/2003/A for offences punishable under Sections 324, 341, 504, 506(II) r/w. Section 34 of the Indian Penal Code (I.P.C.). The said case was a culmination of a charge sheet filed by Quepem Police alleging that on 21/09/2002 at 22.30 hours at Ganesh Shetkar Shop, Cotto, Amona junction, all the accused in furtherance of their common intention wrongfully restrained Shri Sameer Naik (PW2) by catching hold of his T-shirt and hands and assaulted him with soda bottles on his head thereby causing simple injury to him and further gave him bad words and also threatened to kill him. 4. The respondents had pleaded not guilty to the charge framed by the learned Judicial magistrate First class, Quepem (Trial Magistrate) and thereafter the prosecution had examined all together 23 witnesses in order to prove its case. The statements of accused persons came to be recorded under Section 313 of the Code of Criminal Procedure, 1973. The case of the accused persons was of denial simplicitor. They did not examine any witness in their defence. 5. Upon consideration of the entire evidence on record, the learned Trial Magistrate found that the prosecution could not prove the guilt of the accused persons beyond reasonable doubt and that they are therefore entitled to benefit of doubt. All the accused persons therefore stood acquitted, due to which the State is before this Court having challenged the impugned Judgment and order. 6. Mr. Rivankar, learned Public Prosecutor submitted that PW2 is the said Sameer Naik who was injured person and assaulted by the accused persons and his testimony was fully corroborated by PW15, PW16 and PW17 and to some extent by others, and having support of the medical evidence adduced by PW5 Dr. Sanjay Dalvi. He submitted that incorrect date mentioned by Dr. Dalvi in his hurt certificate was by inadvertence and could not have been given any importance. He submitted that the alleged contradictions mentioned by the Trial Magistrate insofar as the evidence of the eyewitnesses including the victim (PW2), are concerned, were not material and did not go to the root of the case. Dalvi in his hurt certificate was by inadvertence and could not have been given any importance. He submitted that the alleged contradictions mentioned by the Trial Magistrate insofar as the evidence of the eyewitnesses including the victim (PW2), are concerned, were not material and did not go to the root of the case. He submitted that since there was absolutely no delay in lodging the complaint, false implication was ruled out. According to the learned Public Prosecutor, the impugned judgment and order is illegal, perverse and required to be quashed and set aside. He, therefore, urged that the appeal be allowed and the accused persons be convicted and sentenced adequately for the offences with which they were charged. 7. Per contra, Mr. De Sa, learned Counsel appearing on behalf of the respondents, submitted that unnecessarily many witnesses have been examined by the prosecution only to burden the records. He pointed out that PW8, PW9, PW10 and PW11 are policemen whose testimonies do not assist the prosecution in any manner to prove the guilt of the accused persons. He further submitted that the panchanamas which have been brought on record have not been proved. He pointed out that as per Dr. Dalvi, PW5, he had examined PW2 on 21/10/2002 though the incident had occurred on 21/09/2002. He further pointed out that PW7, Arti Shetkar, PW12 Upendra Shetkar, PW14 Vallabh Shetkar, PW18 Nisha Naik, PW19 Sandeep Shetkar, PW20, Pooja Shetkar, PW21, Rajesh Shetkar and PW22, Suresh Naik are all useless witnesses whose testimonies do not prove anything. He submitted that the relevant witnesses are only PW2, PW15, PW16 and PW17 and according to him, these witnesses have not at all corroborated each other and there are material contradictions inter se. He submitted that the testimonies of above witnesses do not inspire confidence. He further pointed out from the cross-examination of some of the witnesses that the incident had occurred on account of love affair between the accused no. 1 and PW7 but this genesis of the incident was deliberately suppressed by the prosecution. He further submitted that the accused nos. 1 and 2 had both sustained injuries and this vital aspect was also suppressed by the prosecution and there is no explanation as to how the accused persons had sustained injuries. 1 and PW7 but this genesis of the incident was deliberately suppressed by the prosecution. He further submitted that the accused nos. 1 and 2 had both sustained injuries and this vital aspect was also suppressed by the prosecution and there is no explanation as to how the accused persons had sustained injuries. The learned Counsel relied upon the judgment of the Apex Court in the case of “Lakshmi Singh and others, etc v/s. State of Bihar ” ( AIR 1976 SC 2263 ). He further submitted that there is no merit in the present appeal and even if two views are possible, the view taken by the learned Trial Magistrate being possible view, cannot be interfered with. He, therefore, urged that the appeal is liable to be dismissed. 8. I have gone through the entire record and proceedings. I have considered the submissions advanced by the learned Counsel appearing on behalf of both the parties. 9. PW1, Ganpat Shetkar who acted as one of the panch witnesses for the panchanama of the scene of offence and the sketch (Exhibit 16-colly), is the father of PW7, on account of whom the incident had taken place. Thus, he was an interested witness. He deposed that a panchanama started at night time at 10.30 p.m. and that he reached the spot when the panchanama was half drawn and that nobody else was present except Santosh Dessai who was writing the panchanama and one Bhosle. Shri Santosh Desai was the Police Inspector, of Quepem Police Station, at the relevant time. PW1 specifically stated that except Santosh Desai and Bhosle, nobody else was present. Shri Bhosle was not the second Panch witness. The second panch witness named in the panchanama is one Sudesh Natekar. PW1 did not see the sketch being drawn. Though the panchanama was drawn in the year 2002, he says that it was drawn in the year 2003. The sealing of the articles was not proved. Therefore, as has been rightly held by the Trial Magistrate, the panchanama of the scene of offence and the sketch has not been proved. 10. PW 2, Shri Sameer Naik is the main witness being the injured person and he had lodged the complaint, Exhibit 18. He deposed that on 21/09/2003 at about 9.15 p.m., accused no. 1 caught hold of him and pushed him on the ground and accused nos. 10. PW 2, Shri Sameer Naik is the main witness being the injured person and he had lodged the complaint, Exhibit 18. He deposed that on 21/09/2003 at about 9.15 p.m., accused no. 1 caught hold of him and pushed him on the ground and accused nos. 2 and 3 caught hold of his hands and accused no. 1 removed a bottle, broke the same and assaulted him by that broken bottle on his head as a result of which he sustained bleeding injury. However, as has been rightly held by the learned Trial Magistrate, the testimony of PW2 has been shattered and was shaken on material counts, in the cross-examination, wherein he changed some of his versions. There are omissions which have been marked in his cross-examination viz-a-viz his police complaint. One of the material omissions was to the effect that he had not stated in the complaint that accused nos. 2 and 3 had caught hold of his hands and accused no. 1 removed the bottle, broke the same and assaulted him with the broken bottle on his head. Though the incident had occurred because of “Arti Shetkar's love affair”, PW2 chose not to mention to the Court that the motive behind the incidence was because of love affair of Satish Shetkar's sister Arti. He was confronted that the complaint wherein it was specifically stated that the motive behind the incident was the said lover affair of Arti Shetkar and Rupesh Dabolkar i.e. Accused no.1. It can be clearly understood that PW 2 had not disclosed the whole truth. Though, PW2 specifically stated that the friends who were along with him were Sachin, Sanjeev, Kushal and Ashish, however, Sanjeev, Kushal and Ashish have not been examined by the prosecution. There is no mention in the complaint or deposition of PW2, about Shri Tushar Madgaonkar as one of the persons present at the site, but he has been examined as an eye witness namely PW17. 11. No doubt, according to PW5 Dr. Sanjay Dalvi, there was incised wound on the head of PW2, possibly caused by sharp object. The incidence of alleged assault had taken place on 21/09/2002, however, according to the said Doctor he had examined PW2 on 21/10/2010. Though according to PW6 Dr. 11. No doubt, according to PW5 Dr. Sanjay Dalvi, there was incised wound on the head of PW2, possibly caused by sharp object. The incidence of alleged assault had taken place on 21/09/2002, however, according to the said Doctor he had examined PW2 on 21/10/2010. Though according to PW6 Dr. Santosh Naik he had examined Sameer Naik on 21/09/2002, and that the patient had cerebral concussion, however, neither in his deposition nor in the final medical certificate which is at Exhibit 44/C, PW 6 has mentioned about the injuries actually sustained by PW2. 12. PW15, Shri Harish Komarpant gave a version of the incident which did not corroborate that given by PW2. According to PW15, One Shivcharan came to his residence and told him that Sameer Naik, Rupesh, Sanju, Ashish and Tushar were fighting. Thus there was a fight which involved even Sanju, Ashish and Tushar. Sanju and Ashish have not been examined and Tushar does not say that he was also involved in the fight. PW15 stated that accused no.1 removed soda bottles from the shop of Shetkar and threw them and also handed over to accused no.1 and to the friends of accused no. 1 who are the other accused and the said accused persons caught hold of Sameer and accused no. 1 hit the bottle on the back side of head due to which Sameer sustained bleeding injuries. PW2 did not say that the accused no.1 gave abusive words to him such as “maijovnea, chedyechea” and that he was also threatened of killing. However PW15 said so. The next witness namely PW16, Shri Sachin Shetkar is the brother of the said Arti Shetkar (PW7) and he brought in a third version by saying that the accused no.1 pushed Sameer Naik and hit a bottle on his head. He further brought in a version that accused nos. 1 and 3 had also come to assault him (Pw16) and accused no.3 had caught hold his collar and shaken him. The last eye witness namely Tushar Madgaonkar (PW17) alleged that there was a fight between the accused no. 1 and Sameer and that the accused no. He further brought in a version that accused nos. 1 and 3 had also come to assault him (Pw16) and accused no.3 had caught hold his collar and shaken him. The last eye witness namely Tushar Madgaonkar (PW17) alleged that there was a fight between the accused no. 1 and Sameer and that the accused no. 1 started giving bad words and accused no.1 and other accused came at Ganesh Shop and started throwing bottles on the road and one of the accused caught hold of Sameer and accused no.1 hit a bottle on his head due to which Sameer fell down. It can definitely be said that PW2, PW15, PW16 and PW17, though are alleged to be eye witnesses, have given different versions as per their own whims and fancies. There is absolutely no corroboration amongst these witnesses. Cross-examination of the above witnesses reveals that they are shaken on material aspects. There are also omissions when their depositions are compared with police statements. They are all close friends. 13. PW7, said Ms Arti Shetkar, in fact was the main witness on account of whom the entire alleged incident had taken place. However, instead of saying that the accused no.1 gave abuses to Sameer, she stated that accused no.1 started giving abuses to her. She did not state about any assault on Sameer. Though in her examination-in-chief she stated that her father had put her inside the room and had latched the room, however, it is pertinent to note that such a material fact was not stated by her inn her statement made to the Investigating Officer. 14. The testimony of PW13 Upendra Shetkar reveals that there were about 20 boys who had gathered at the spot. PW14 Vallabh Shetkar does not know the accused persons and also does not know as to how and why Sameer was lying on the road. As already stated above PW8, PW9, PW10 and PW11 are policemen who had not seen the actual incident and therefore, they cannot assist the prosecution in any manner. PW13 Upendra Shetkar and PW14 Vallabh Shetkar have also not stated anything which would help the prosecution in proving the case. 15. As has been rightly submitted by the learned Counsel appearing on behalf of the respondents, the genesis of the incident namely alleged love affair between PW7 Arti Shetkar and accused no.1 was suppressed from the Trial Magistrate. PW13 Upendra Shetkar and PW14 Vallabh Shetkar have also not stated anything which would help the prosecution in proving the case. 15. As has been rightly submitted by the learned Counsel appearing on behalf of the respondents, the genesis of the incident namely alleged love affair between PW7 Arti Shetkar and accused no.1 was suppressed from the Trial Magistrate. The evidence of PW22, Santosh Dessai the then Police Inspector attached to the Quepem Police Station, reveals that the prosecution wanted to suppress another material fact namely the injuries sustained by two of the accused persons. In his cross-examination, PW22 stated that the accused nos. 1, and 2 were arrested on 22/09/2002 and accused no. 3 was arrested on 16/10/2002. However, according to him, he did not find any injury on the person of accused nos. 1 and 2 when they were taken into custody by him. In fact the accused nos. 1 and 2 were arrested on the very day of the incident. PW22 further admitted that he had referred the accused nos. 1 and 2 for medical check up on 22/09/2002. Only after he was shown the request letter for medical examination and hurt certificates, he admitted the genuineness of the said medical certificates which are at Exhibit 20 Colly. This hurt certificates reveal that both the accused nos. 1 and 2 had sustained injuries. None of the eye witnesses have explained as to how the accused nos. 1 and 2 sustained injuries. In the case of “Lakshmi Singh and others etc” (supra) the Hon'ble Supreme court has observed that non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of the altercation is a very important circumstance from which the Court can draw the following inferences:- (1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; (3) that in case there is a defence version which explains the injuries on the person of the accused, it is rendered probable so as to throw doubt on the prosecution case. The Apex Court has reiterated the observations made by it in the case of “State of Gujarat Vs. The Apex Court has reiterated the observations made by it in the case of “State of Gujarat Vs. Bai Fatima” ( AIR 1975 SC 1478 ) which are as under:- (1) that the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self defence; (2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt; (3) It does not affect the prosecution case at all. It has been held that the omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested and inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution case. 16. In the circumstances above, the impugned judgment and order passed by the learned Trial Magistrate holding that the prosecution could not prove the guilt of the accused persons beyond reasonable doubt and that the accused persons are entitled to benefit of doubt, cannot be faulted. It is well settled that even if two views are possible and the view taken by the learned Magistrate is possible, this Court cannot substitute its own view saying that the same is possible. No interference is therefore called for with the impugned judgment. 17. There is no merit in the appeal and hence the same stands dismissed. Appeal dismissed.