1 criap-3714.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 3714 OF 2009 The State of Maharashtra Applicant versus Shankar Pandharinath Jamdade & ors. Respondents ------- Smt. Y. M. Kshirsagar, A. P. P. for the applicant-State. Shri V.B. Deshmukh, Advocate, for respondents-accused. ------- Coram : Shrihari P. Davare, J. Date : 13th April, 2011. P. C. 01. Heard learned counsel for the parties. 02. This is an application preferred by the applicant-State, seeking leave to file appeal challenging the judgment and order dated 18.6.2009, rendered by the learned Additional Sessions Judge, Osmanabad, in Criminal Appeal No.19 of 2005, thereby acquitting the respondents-original accused of the offences punishable under Sections 147, 148, 324, 323, 504 and 506 read with Section 149 of the Indian Penal Code. 2 criap-3714.09 03. Admittedly, respondents (original accused Nos. 1 to 8) faced trial in R.C.C. No.60 of 1995 before the learned J.M.F.C., Osmanabad, and the learned Magistrate, by judgment and order dated 26.5.2005, convicted them for the offence punishable under Section 147 of IPC and sentenced to suffer simple imprisonment for two months each and to pay fine of Rs.200/- each, in default of payment of fine, to suffer simple imprisonment for two days each, and accused Nos. 1 to 4 were convicted for the offence punishable under Section 148 of IPC and sentenced to suffer simple imprisonment for two months each, and to pay fine of Rs.200 each and in default of payment of fine, they were directed to suffer simple imprisonment for two days, and they were also convicted for offence punishable under Section 324 read with Section 149 of IPC and sentenced to suffer simple imprisonment for two months each and pay fine of Rs.300/- each, and in default of payment of fine, to suffer simple imprisonment for two days each, whereas accused Nos. 5 to 8 were convicted for offence punishable under Section 323 read with Section 149 of IPC and sentenced to suffer simple imprisonment for two months each and to pay fine of 3 criap-3714.09 Rs.300/- each, and in default of payment of fine, to suffer simple imprisonment for two days each, and the said substantive sentences were directed to run concurrently. 04. Being aggrieved and dissatisfied by the said judgment and order of conviction dated 26.5.2005 recorded by the learned J.M.F.C. Osmababad, in RCC No. 60 of 1995, the original accused (present respondents) preferred Criminal Appeal No.19 of 2005 before the Sessions Court, Osmanabad and the learned Additional Sessions Judge, Osmanabad, by judgment and order dated 18.6.2009, allowed the said appeal, and set aside the said conviction against the appellants (present respondents-original accused), recorded by the learned J.M.F.C. Osmanabad for the offences under Sections 147, 148, 324, 323 read with Section 149 of IPC, and the appellants-accused were acquitted of the said charges, and hence, the State has preferred present application, seeking leave to file appeal challenging the said judgment and order of acquittal of the present respondents (original accused). 4 criap-3714.09 05. In substance, there are contrary findings of the trial court, as well as the first appellate court. The learned First Appellate Court has observed in the impugned judgment that although charge was framed for offence under Section 323 read with Section 149 of IPC, the trial court without framing point for consideration in that respect, recorded a finding on such point, holding the appellants-original accused guilty of such offence and that in the operative part of its judgment the trial court convicted the appellants (accused Nos. 5 to 8) for the offence punishable under Section 323 read with Section 149 of IPC and sentenced them to suffer simple imprisonment for two months each and pay fine of Rs.300/- each and in default of payment of fine, directed them to suffer simple imprisonment for two days each, and the learned Addl. Sessions Judge held that the same cannot be justified. However, on perusal of the judgment of the trial court, it appears that point No.2 had been framed by learned Magistrate in that respect, and hence, apparently, said observation made by the first appellate court is contrary to the facts on record. 5 criap-3714.09 06. I have perused the judgments of both the courts, i.e. the trial court and the first appellate court, and also perused the record and proceedings with the assistance of learned counsel for the parties, and having the comprehensive view of the matter, present application deserves to be allowed. 07. Hence, present application is allowed, and leave to file appeal is granted. 08. Admit. Shri V.B. Deshmukh, learned Counsel waives service upon respondents-original accused, after admission. Respondents-original accused to furnish same bail on which they were released during pendency of the trial, but to execute fresh bonds within the period of six weeks from today. 09. Record and proceedings be sent back to the concerned court. pnd/criap-3714.09 (Shrihari P. Davare, J.)