1 criapln4453-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.4453/2010 The State of Maharashtra Through Public Prosecutor High Court, Bench at Aurangabad. ...APPLICANT [ORIG.COMPLAINANT] VERSUS 1] Kailas Raosaheb Deshmukh Age 40 years. 2] Pramod Daulat Deshmukh, Age 18 years. 3] Raosaheb Bapu Deshmukh Age 40 years. 4] Sau. Latabai Daulat Deshmukh, Age 35 years. 5] Sau.Mandabai Daulat Deshmukh Age 40 years. All R/o Bholewadi Kotul Taluka Akole, District Ahmednagar. .. RESPONDENTS [ORI.ACCUSED NOS.2 TO 6] 2 criapln4453-10 ... Shri K.G.Patil, APP for applicant ... CORAM : NARESH H.PATIL & T.V.NALAWADE,JJ. DATE : 22/03/2011 ORAL ORDER : [PER NALAWADE,J.] This application is filed by State for granting leave to file criminal appeal against judgment and order in Sessions Case No.15/04 decided by Shri M.A.Lovekar, Additional Sessions Judge, Sangamner, District Ahmednagar. Accused no.1 is convicted and sentenced for offence punishable under Section 326 of I.P.C. and accused no.2 is convicted and sentenced for offence punishable under Section 323 of I.P.C. by the trial Court. The other accused who are accused nos.3 to 6 are acquitted by the trial Court. As accused no.2 Kailash is not convicted for offence punishable under Section 326 of I.P.C., the State wants to file appeal against accused no.2 also. 2] Record and proceedings of the Sessions Case was called. Original accused nos.1 and 2 viz. Daulat Deshmukh and Kailash Deshmukh have filed Criminal Appeal No.277/2010 to challenge the 3 criapln4453-10 aforesaid decision given by Additional Sessions Judge. Hearing was given to prosecution side. 3] The evidence collected shows that due to causing damage to the pipeline of Daulat Deshmukh, the dispute started. The field of complainant Popat Deshmukh is situated adjacent to the field of Daulat. In the morning of 14/5/2004, there was verbal exchange between complainant Popat on one side and Daulat and his brother Kailash on other. At about 9.30 p.m. on the same day, Daulat came infront of the house of Popat in a drunken condition and he started giving abuses to Vishwasrao, father of Popat. When Popat questioned Daulat about such conduct, Kailash also came there and scuffle started between Kailash and Popat. Kailash gave kick blows and fist blows to Popat and then Daulat gave blows of knife on the chest and other portion of the body of Popat. Vishwasrao, father of Popat tried to intervene in the incident and then Raosaheb accused no.3, father of Daulat gave a blow of stick on the head of Vishwasrao. Then, 2 wives of Daulat viz. Latabai and Mandabai came there and they also started giving abuses to the family members of Popat. Popat sustained bleeding injuries and he was taken to primary health center and then shifted to a private hospital. Report of Popat came to be recorded by 4 criapln4453-10 police of Akole police station and the crime at Crime No.35/04 came to be registered. During investigation, police recorded statements of witnesses like family members of Popat and others. The spot panchanama was prepared and the injury certificates in respect of Popat and his father came to be collected. 4] Initially, Crime was registered for offences punishable under Sections 147, 148, 149 r.w. Section 326 of I.P.C. and also for offence punishable under the provisions of Bombay Police Act. Crime was then converted to one under Section 307 of I.P.C. The charge was accordingly framed by Additional Sessions Judge and the plea was recorded. Prosecution examined in all 13 witnesses. 5] The trial Court has held that the prosecution has failed to prove that unlawful assembly was formed. The trial Court has held accused no.1 Daulat guilty for the offence punishable under Section 326 of I.P.C. as he used dangerous weapon and as grievous injury was caused by him. Accused no.2 Kailash is convicted and sentenced for offence punishable U/s 323 of I.P.C. as he assaulted the complainant, by giving kicks and fist blows. The trial Court has not believed the evidence given as against the other accused, so they are acquitted. 5 criapln4453-10 6] In view of the aforesaid circumstances, for granting leave, it was necessary for the State to show that there is some evidence to make out the case of formation of unlawful assembly by the present respondents. But the evidence does not show that such unlawful assembly was formed by other accused persons and they had any unlawful object as such. Copy of map and spot panchanama of offence shows that the house of Kailash and Daulat are situated on 2 sides of the road. Thus, the two brothers were living separate. The incident took place infront of the house of one Subhash Deshmukh who is immediate neighbour of accused no.2 Kailash, who is not examined as a prosecution witness. 7] From the F.I.R. and the evidence of Popat (P.W.1), it can be gathered that prosecution wanted to prove that at the beginning of the incident only Daulat and Kailash from the side of accused were present on the spot. Kachru (P.W.3) has given evidence at Exh.40 that after running away of accused nos.1 and 2 from the spot when the quarrel was separated, accused nos.3,5 and 6 came there and accused no.4 also came there. This evidence creates probability that there was no formation of unlawful assembly as less than 5 persons 6 criapln4453-10 were present when Raosaheb gave blow of stick on the head of Vishwasrao. The sequence of the incident is in different manner described by Kachru and other prosecution witnesses. Vilas (P.W.4) has given evidence at Exh.44 that Raosaheb started the incident by giving a stick blow on the head of Vishwasrao. The evidence of Bhausaheb (P.W.5) at Exh.45 shows that his evidence as against accused nos.1 and 2 is very vague but he has tried to explain the injury sustained by accused Raosaheb by saying that the stick blow given by accused Pramod landed on the back of Raosaheb. Vishwasrao (P.W. 11) has given evidence at Exh.63 and he has also tried to say that Raosaheb started the incident by giving stick blow on the head of Vishwasrao. The evidence of Vishwasrao is not consistent with the prosecution case. 8] Recovery of 2 weapons took place on the statement given by Daulat accused no.1. The evidence of Doctor at Exh.55 and injury certificate at Exh.56 shows that one injury like abrasion and swelling over frontal region of Vishwasrao was found and the second injury was of blunt trauma over left axilla. Nothing is said about this injury sustained by Vishwasrao. 7 criapln4453-10 9] The aforesaid evidence if considered together and particularly case of the prosecution that Vishwasrao had come there to separate the quarrel, shows that the family members of Daulat and Raosaheb came there to separate the quarrel. Raosaheb sustained injury over his back and it shows that he was not found there to take part in the assault. The allegations against the remaining accused are that they gave abuses. The specific abuses given by accused are not mentioned. Further, their conduct described in the incident does not show that they had similar or same intention with accused nos.1 and 2. It is also observed that the evidence is not sufficient to make out the case for the use of principle of common object against the present respondents. The trial Court has convicted Kailash on the basis of the evidence given against him and Daulat on the basis of evidence given against him. As there is no possibility of invoking the principle of common object and as the view taken by trial Court is possible view, this Court has no hesitation to hold that nothing can be achieved by granting leave to the State to file Appeal. Hence the Application stands rejected. [T.V.NALAWADE,J.] [NARESH H.PATIL,J.] 8 criapln4453-10 umg/criapln4453-10