(-1-) MGN IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, CRIMINAL JURISDICTION CRIMINAL APPLICATION NO.3680 OF 2007 IN CRIMINAL ALPPEAL NO. OF 2007 The State of Maharashtra ..Appellant Vs. Daulat Sahadu Bagul & Ors..........Respondents Mrs. M.M. Deshmukh, A.P.P. for the Appellant. Mr. S.M. Sabrad for the Respondents. CORAM: F.I. CORAM: F.I. CORAM: F.I. REBELLO REBELLO REBELLO & R.Y. GANOO, JJ. R.Y. GANOO, JJ. R.Y. GANOO, JJ. DATED: 25TH JULY 2008 DATED: 25TH JULY 2008 DATED: 25TH JULY 2008 P.C.: P.C.: P.C.: . The State is in Appeal against the acquittal of the respondents except Respondent Nos.2,9 and 15, who have been convicted for the offence punishable under Section 304 Part II and other offences. 2. From the judgment of the learned Sessions Judge, it is clear that there are only three eye witnesses who were examined. The learned Judge recorded a finding that P.W.6-Sitaram was not at the scene at the time of the assault on the deceased, but had come subsequently on the spot. There were two other eye witnesses P.W.1-Rajaram and P.W.5-Shankar. The learned Judge in paragraph 10 has assessed the evidence of these witnesses . From the evidence of P.W.5 what has come on record is that only one stone was thrown which hit the chest (-2-) of Nanaji, who has not been examined. The learned Judge further observed that P.W.1 has deposed that Jagannath and Dhondu gave stick blow at the head of Rajaram and caused head injury. Mahadu Laxman is the accused in the cross complaint filed by the Respondents. The learned Judge further has observed that P.W.5 has given same story. Also that P.W.5 has not given any specifics about the assault of any particular person to P.W.1. 3. For holding the persons guilty of offence punishable under Section 147 read with Section 148, a duty was cast on the prosecution to show first that there was unlawful assembly when the offence was committed. In the instant case there is no evidence firstly to show that there was any unlawful assembly and secondly no witnesses have attributed any role to the respondents who have been acquitted. . Once that be the case, in our opinion it cannot be said that the judgment of the learned Judge in so far as the accused who have been acquitted suffer from any illegality. No case made out. Hence application rejected. (R.Y.GANOO, J.) (F.I.REBELLO,J.) (R.Y.GANOO, J.) (F.I.REBELLO,J.) (R.Y.GANOO, J.) (F.I.REBELLO,J.)