1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 2118 OF 2009 The State of Maharashtra ..Applicant VERSUS Chandrasen Govind Kanse & ors. ..Respondents ..... Shri K.B.Choudhary A.P.P. for the applicant ..... CORAM : NARESH H. PATIL AND SHRIHARI P.DAVARE, JJ. DATED : 22nd September, 2009 PER COURT : 1 Heard Shri K.B.Choudhary, learned A.P.P. for the applicant. 2 Initially charge was framed against 13 accused persons for offence punishable under Sections 148, 149, 302 of the Indian 2 Penal Code and separate charge for offence punishable under Section 427 r/w Section 149 of the Indian Penal Code was framed. The learned Adhoc Additional Sessions Judge-2, Osmanabad framed charge against original accused nos. 1 to 3 for offence punishable under Section 302 r/w Section 34 and Section 324 r/w Section 34 of the Indian Penal Code. 3 We have perused the original record and proceedings, more particularly the statements of eye witnesses. We have perused the injury certificate and postmortem report. We find that the prosecution has failed to establish that there was an unlawful assembly formed by 13 original accused with a definite object to commit murder of Mohammed and caused injuries to PW3 Ahmed Shaikh. The incident is in two parts. Firstly at about 3.00 p.m. On 7.6.1999, the prosecution alleges that at that time the accused persons came with deadly weapons to demolish the house of PW1 Papa Beg, but we do not notice any conclusive and clinching evidence that the accused persons allegedly used the weapons or assaulted anybody at that time. 4 Secondly, at about 8.30 p.m. on the same day, the prosecution alleges that original accused nos. 1 to 3 came in a jeep from Osmanabad to village Shiradhon. Papa Beg was preparing for filing the complaint to police. The deceased inquired 3 with accused nos. 1 to 3 as to why they had demolished the house of a poor person. On that asking, original accused no.1 Chandersen took out knife and assaulted deceased. He even assaulted PW3 Ahmed Shaikh. The deceased was taken to Hospital and subsequently he died. 5 We have considered the reasoning adopted by the Trial Court. Prima facie, we are not convinced regarding the acquittal of accused nos. 1 to 3 against whom specific charge was framed. 6 We do not find any convincing and conclusive good evidence against rest of the accused persons for convicting and sentencing them for penal offence with an aid of Section 149 or Section 34 of the Indian Penal Code. The prosecution has failed to establish case against rest of the accused persons than original accused no. 1 to 3. 7 We, therefore, reject leave to file appeal as sought by the State against accused nos. 4 to 13. The leave to file appeal against accused nos. 1 to 3 is granted to the State. 8 Appeal admitted. Action under Section 390 of Criminal Procedure Code be taken. If the accused are arrested, they be released on their furnishing bail in the sum of Rs. 15,000/- with 4 one surety in the like amount. The accused shall attend the concerned police station once in a quarter until further orders. (SHRIHARI P. DAVARE, J.) (NARESH H. PATIL, J.) dbm/crap2118.09