1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. CRIMINAL APPLICATION NO. 608 OF 2009 (State of Maharashtra .v. Gopikisan @ Om Parashram Gadmade and others) Office Notes, Office Memoranda of Coram appearances, Court's orders or directions Court's or Judge's Orders and Registrar's orders. Shri S.S. Doifode, APP for the applicants. Shri H.D. Dangre, Advocate for the non-applicants. CORAM : A.P. LAVANDE AND PRASANNA B. VARALE, JJ. DATE OF RESERVING THE ORDER : 11TH JUNE, 2009. DATE OF PRONOUNCING ORDER : 17TH JUNE, 2009. By the present application, the applicant/State of Maharashtra seeks leave to file appeal against the judgment and order dated 16.06.2008 passed in Sessions Trial No. 4 of 2005 by the Additional Sessions Judge, Darwha. The respondent Nos.1 to 3 namely Gopikisan Gadmade, Parashram Gadmade and Purushottam Gadmade are the original accused Nos.3, 4 and 5 respectively. The respondents along with the other accused namely Maroti Shrirame and Vinod Shrirame were charged for having committed the offences under Sections 147, 148, 149, 302, 307, 324, 325 and 326 of the Indian Penal Code read with Section 4/25 of the Arms Act read with Section 135 of the Bombay 2 Police Act. It was the case of the prosecution that all the accused persons formed an unlawful assembly for assaulting Sunil Jawalkar and others. The victims, namely, Sunil Jawalkar, Parashram Jawalkar, Chandrashekhar Bulbule and Sunil Dhoot were assaulted by the accused by means of sword. It is the case of the prosecution that in the said incident, Sunil Jawalkar, Parashram Jawalkar, Chandrashekhar Bulbule and Sunil Dhoot lost their lives and Neminath Baiskar, Lochana Jawalkar, Vishwasrao Jawalkar, Shashikalabai Jawalkar, Dilip Jawalkar and Sushila Dhoot received grievous injuries. It is the case of the prosecution that the accused persons had a grudge against the victims for the reason that Sunil Jawalkar had developed relation with the sister of accused No.2 Vinod Shrirame (and daughter of accused No.1 Maroti Shrirame), which was objected by the accused persons. The learned Sessions Court by its judgment awarded conviction to accused No.1 Maroti Shrirame for the offence punishable under Section 302 of the Indian Penal Code and sentenced to death. He is also convicted for the offence punishable under Section 324 of the Indian Penal Code and sentenced to suffer RI for three years with fine. Accused No.2 Vinod Shrirame is convicted for the offence under Section 302 of the Indian Penal 3 Code and sentenced to suffer RI for life with fine. He is also convicted for the offence punishable under Section 324 of the Indian Penal Code and sentenced to suffer RI for three years with fine. Accused No.1 Maroti and accused No.2 Vinod are further convicted for the offence punishable under Section 452 of the Indian Penal Code and sentenced to suffer RI for seven years with fine. By the said judgment, the learned Additional Sessions Judge convicted accused No.3 Gopikisan for the offence punishable under Section 324 of the Indian Penal and sentenced him to suffer RI for three years. Accused No.4 Parashram Gadmade and accused No.5 Purushottam Gadmade are acquitted. The said judgment is under challenge and the applicant/appellate/State is challenging the acquittal of the respondents herein (original accused Nos.3, 4 and 5). Shri S.S. Doifode, the learned Additional Public Prosecutor appearing on behalf of the applicant/State submitted that the prosecution has brought sufficient, cogent and reliable evidence to bring the guilt of respondents/accused and the learned Additional Sessions Judge committed serious error and as such prayed for interference at the hands of this Court. Per contra, Shri H.D. Dangre, the learned 4 Counsel appearing on behalf of the respondents submitted that the evidence brought by the prosecution was not at all reliable and the learned Additional Sessions Judge was justified in arriving at the conclusion and thereby acquitting the respondents. Learned Counsel further submitted that this is the case of no evidence against the respondents and no purpose would be served and it will be a futile exercise to show interference by this Court. We have given anxious consideration to the submissions made by the learned APP for the applicant and learned Counsel for the respondents. With their assistance, we have gone through the records. Perusal of records shows that the witnesses, namely Neminath Baiskar (PW-5), who is the injured witness, Lochana Jawalkar (PW-8) and Devu Shelke (PW-9) are the witnesses who speak about the presence of the respondents Gopikishan Gadmade, Parashram Gadmade and Purushottam Gadmade. Neminath Baiskar (PW-5), who is the injured witness, has stated in his evidence before the Court that the respondent No.1 Om @ Gopikisan Gadmade assaulted him by stick on his head. This witness also speaks about the presence of Parashram Gadmade and Purushottam Gadmade, respondent Nos.2 and 3 respectively. He further states that Parsahram Gadmade and Purushottam Gadmade 5 asked accused Vinod to assault and on their instigation accused Vinod lifted sword and gave blows on his leg. This witness has not shaken in his cross examination. Lochana Jawalkar (PW-8) also speaks about the presence of Parashram and his instigation. He also speaks about the presence of Purushottam Gadmade and Om @ Gopikisan Gadmade. Devu Shelke (PW-9) also speaks about the presence of Om, Parashram and Purushottam. He further states in his evidence before the Court that Parashram asked accused Vinod and Maorti to kill all the persons. This witness stands firm on this aspect in his cross examination. Bhaskar Baiskar (PW-4), who lodged the oral report, has stated in his report that Om @ Gopikisan Gadmade has assaulted his brother Neminath on his head by stick when he tried to stop accused Maroti. Bhaskar in his evidence before the Court stated that Om @ Gopikisan Gadmade assaulted Neminath by stick on his head and further asked Om Gadmade to take sword and on his instigation accused Vinod assaulted Neminath by means of sword. In our opinion, prima facie, there is material to show the presence of the respondents as well as participation of the accused in the commission of offence. Learned APP placed reliance on the judgment 6 of the Apex Court in the matter of Yunis @ Kariya .v. State of MP (reported in AIR 2003 SC 539) and submitted that the presence of the accused persons as part of unlawful assembly is sufficient for conviction. He further submitted that the presence of this accused persons at the place of occurrence, which is not disputed, is sufficient to hold them guilty even if there is no overt act is imputed. We find considerable merit in the submissions made by the learned APP. In the result, Criminal Application No. 608/2009 is allowed. CRIMINAL APPEAL NO. 89 OF 2009 Heard Shri S.S. Doifode, the learned Additional Public Prosecutor appearing on behalf of the appellant/State and Shri B.H. Dangre, the learned Counsel appearing on behalf of the respondents. Admit. Action under Section 390 of the Code of Criminal Procedure be taken against the respondents/accused. The respondents be released upon executing bail bonds of Rs.10,000/- with surety in the like amount to the satisfaction of the trial Court. JUDGE JUDGE *rrg.