(1) Cra3969/2008 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.3969 OF 2008 IN CRIMINAL APPEAL STAMP NO.7990 OF 2008 The State of Maharashtra ] Through Sonpeth Police Stn.] APPELLANT. Sonpeth, Dist.Parbhani. ] VERSUS 1] Satish Narayan Shinde ] 2] Indrajeet s/o Narayanrao ] Shinde ] 3] Maroti Narayanrao Shinde ] 4] Lahu Manik Salgar, ] 5] Sachin s/o Babu Salgar ] 6] Arvind s/o Babu Salgar ] RESPONDENTS. 7] Babu alias Narayan s/o ] Munjaji Salgar, ] 8] Laxman Narayan Chapbhale ] 9] Manikrao s/o Munjaji Salgar] 10] Dnyanoba s/o Narayan Shinde] 11] Prakash alias Bandu s/o ] Munjaji Salgar, ] ] All R/o Mahatpuri, ] Tq.Gangakhed, Dist.Parbhani] ----- Mr.S.D.Kaldate,Addl.Public Prosecutor,for appellant. Mr.S.J.Slunke,Advocate,for respondent No.4. ----- CORAM : NARESH H. PATIL AND SHRIHARI P. DAVARE,JJ. DATE : 12th August, 2009. (2) Cra3969/2008 ORAL ORDER [ PER – NARESH H. PATIL, J.] 1] Heard. 2] The State is challenging the judgment and order passed by learned Additional Sessions Judge, Gangakhed, District Parbhani, in Sessions Trial No. 37 of 2004. Eleven persons were prosecuted by the prosecution and charged for an offence punishable under section 147, 148, 307 read with section 149, 323 read with section 149 and 504 read with section 149 of the Indian Penal Code( for short IPC), 1860. The trial Court acquitted all the accused except accused No.4 Lahu Manik Salgar, who was convicted and sentenced for an offence punishable under section 324 of the IPC to undergo rigorous imprisonment for six months and to pay a fine of Rs.1,000/- (Rs. One Thousand Only). Accused No.4 Lahu filed an appeal in this Court which was numbered as Criminal Appeal No.384 of 2008 and has been admitted by this Court on 31/07/2008. He was released on bail by this Court. 3] We have heard the submissions advanced by Shri.S.D.Kaldate, learned Additional Public Prosecutor, for appellant/State and Shri.S.J.Salunke, learned counsel for respondent No. 4. We have perused the original Record & Proceedings. 4] We find that formation of an unlawful (3) Cra3969/2008 assembly with common object of assault of PW No.2 Ginyandeo is not established beyond reasonable doubt. In this case the testimony of PW No.3 Anil (Exh.83), who is an injured witness, is crucial and is of much importance. We have even perused the injury certificate (Exh.70) issued by Medical Officer PW No.1 Dr.Pandit. The stab injury is said to be of simple nature. It was of the size 2½ cm x 1 cm x 1 cm. The rest of two injuries are abrasions. The injured Ginyandeo was in the hospital for two days. 5] It has come in the evidence that other accused persons were not moving in a group, but they were scattered in the fair (yatra) and were wandering here and there. According to prosecution case, it emerges that accused No.4 Lahu came towards PW No.2 Ginyandev and had some exchange of words and abused him which resulted in the assault. Accused Lahu stabbed PW Ginyandeo by knife on his stomach. There is some history about previous enmity between the parties. It is alleged that the brother of accused Lahu was murdered by PW Ginyandeo and he and some other witnesses were the accused persons in the said trial. It is curious to note that PW Ginyandeo himself is an accused in the case relating to murder of brother of accused No.4 Lahu. We need not dilate much on that aspect of the case. The prosecution ought to have led positive evidence to establish case against all accused persons that they formed an (4) Cra3969/2008 unlawful assembly with intent to make attempt to commit murder of PW No.2 Ginyandeo. An unlawful assembly could be formed at the spur of the moment. We, therefore, do not insist that the prosecution should have come out with evidence of formation of an unlawful assembly with intent to commit murder of PW Ginyandeo. But even according to the evidence led by prosecution we do not find that the other accused persons had gathered and formed an unlawful assembly to commit a serious offence punishable under section 307 of IPC. 6] The trial Court had considered the case of prosecution and even referred to various judgments cited by the parties and has adopted reasonable view which is a possible view. Considering the nature of injuries sustained by PW 2 Ginyandeo, the manner of assault and the motive and intention disclosed by prosecution, we find that prosecution has not made out a case for granting leave to file appeal against acquittal. The application deserves to be rejected. 7] Application for leave to file appeal against acquittal stands rejected. 8] Record & Proceedings of trial Court be sent back. [ SHRIHARI P. DAVARE, J.] [ NARESH H. PATIL, J.] pcr/o/cra3969.08