JUDGMENT - VISHNU SAHAI, J. :---A perverse Judgment of acquittal dated 6-8-1990 passed by the learned Additional Sessions Judge, Greater Bombay in Sessions Case No. 259 of 1979, acquitting the respondents for offences punishable under sections 143 I.P.C., 144 I.P.C., 147 I.P.C., 148 I.P.C., 324 read with 149 I.P.C. (on two separate counts namely causing hurt to Anantya Shetty and Krishna Gauda), 323 read with 149 I.P.C., 337 read with 149 I.P.C., 436 read with 149 I.P.C., 450 I.P.C. and 395 I.P.C., has prompted the State of Maharashtra to file an appeal against acquittal under section 378(1) of Cr.P.C.

2.At this juncture, we may mention that the appeal against respondent Nos. 2 and 3 namely Pundalik Patil Kesarinath and Maruti Krishna Patil was dismissed by order dated 19-12-1983 passed by a Division Bench of this Court as no action had been taken to serve them. We may also mention that appeal against the respondent Nos. 1, 4 and 8 namely Joseph Mingel Koli, Ramakant Shankar Patil and Tanaji Devji Bhivande has been ordered to be abated since they are reported to be dead. Abatment orders in respect of respondent Ramakant Shankar Patil and Tanaji Devji Bhivande were passed by a Division Bench of this Court on 17-1-1994 and the same in respect of respondent Joseph Mingel Koli was passed by us today.

The short and long of the matter is that this appeal only survives against respondents Anthony Pascal Koli, Liladhar Sadashiv Patil, Bhalchandra Pandurang Wagh, Nilkanth Vishnu Patil, Dinanath Jivan Koli, Ganpat Narayan Patil, and Vishwanath Posha Koli.

3.We would first like to set out the factual matrix from which, this appeal arises:

Antaya Shetty, P.W. 1 was the proprietor of Maharashtra Lunch Home situate at Sewree Koliwada in Bombay. At a distance of 100 feet from it was a hotel called Vijay Cafe which stood in the name of his wife although he had the Power of Attorney from her qua it. Vijay Cafe was given to Antaya Shetty's son-in-law Shambhu Shetty. However, he looked after its business.

On 23-4-1978, at about 10 p.m. Antaya Shetty came to Vijay Cafe from Maharashtra Lunch Home. Since it was a Sunday, Vijay Cafe was closed. Antaya Shetty entered it from the rear side. He saw that the articles purchased from the market that day were lying scattered in the kitchen. He went in the room in which there was a counter. In that room, there was a window from which one could see things on the road. That window was open and had wire-mesh. From it, he saw that the respondent Joseph Koli (hereinafter referred to as Joseph also) and eleven other respondents were on the road. Joseph started abusing him in filthy language. When he enquired from him as to what wrong he had committed, Joseph replied that he was trying to get him externed. Joseph asked him to come out and threatened to finish him. He refused to come out. Thereupon, Joseph shouted "Boys, stone the hotel, break it and take him out." On that, the eleven other respondents who were henchmen of Joseph started throwing stone and soda water bottles. Thereafter, door of the kitchen was broken and they threw lighted crackers (anarkalis) and lighted cloth balls inside the kitchen. Antaya Shetty urged them not to indulge in this vandalism. One cloth ball fell on his left arm. Cloth balls also fell on both of his legs. The consequence was that the said areas were burnt. The manager of the Vijay Cafe, Kumar Shetty P.W. 3 went to the counter to make a phone call to the police but, the telephone was dead. The wires had been cut by the respondents. As a consequence of the vandalism of the respondents, fire broke out in the kitchen. Its ceiling was burnt. Some waiters namely Ramesh Sapalikar, P.W. 4, Krishna Gauda P.W. 6, and Baburao Salunke P.W. 10 extinguished the fire. Out of them, Baburao and Krishna also received injuries. After committing the said acts of vandalism the respondents are alleged to have run away. In the meantime, fire-brigade with a police van and a police jeep arrived. The police

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