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appln5516.11

IN THE HIGH COURT OF JUDICATURE OF BOMBAY,

BENCH AT AURANGABAD

CRIMINAL APPLICATION NO. 5516 OF 2011

The State of Maharashtra

..APPLICANT

-VERSUS-

Raosaheb Vankar Sormare and ors

..RESPONDENTS

.....

Shri S.D. Kaldate, A.P.P. for applicant/State.

Shri. S.S. Kingaonkar, instructed by, Shri N.S. Ghanekar, advocate

for respondents.

.....

CORAM : S.B. DESHMUKH AND

A.M. THIPSAY , JJ.

DATE : 6th January, 2012

P.C. :

1.

We have heard learned A.P.P. Mr. S.D. Kaldate. From the

judgment of Sessions Case No. 295/2007, which is annexed with

this criminal application, learned A.P.P. points out that, in sessions

case no. 295/2007, ten accused persons were tried for the offence

punishable under Sections 148, 324, 326, 307, 302, 504, 506 r/w

149 r/w 34 of the Indian Penal Code. The learned Sessions Judge,

after recording the evidence, by his judgment dated 7th July, 2011,

has convicted all the ten accused for the offences punishable

under Sections 143, 147, 323 r/w 149 of the Indian Penal Code

and imposed sentences, as detailed in the operative part of the

judgment in Sessions Case no. 295/2007. Apart from this general

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conviction, the original accused no.3-Vishnu Bhagwan Sormare, is

also convicted for the offences punishable under Sections 148 and

324 of the Indian Penal Code and punishment has been inflicted

upon him as detailed in the order. The substantive sentences of

imprisonment have been directed to run concurrently. The set off

under section 428 of the Criminal Procedure Code is also

permitted. Apart from this, original accused nos. 1, 2 and 4 to 10

are acquitted for the offences punishable under Sections 148, 324,

326, 307, 302, 504, 506 r/w 149 r/w 34 of the Indian Penal Code.

Against this acquittal of original accused nos. 1, 2 and 4 to 10, the

present Criminal Application is filed by the State under Section

378(1)(b) of the Criminal Procedure Code. We have also noticed

from the original judgment that the original accused Vishnu

Sormare is acquitted for the offences punishable under Sections

326, 307, 302, 504, 506 r/w 149 r/w 34 of the Indian Penal Code.

2.

Criminal Appeal No. 388/2011 has been filed by the original

accused nos. 1 to 10 challenging their conviction under Section

143, 147, 323 r/w 149, 324 r/w 149 of the Indian Penal Code. This

appeal was listed before the learned Single Judge of this Court

(Coram : Shrihari P. Davare, J) for admission on 10th August, 2011.

After hearing the learned counsel, the learned Single Judge has

admitted this appeal on 10th August, 2011. We have also seen the

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order passed by the learned Single Judge on 10th August, 2011 in

criminal application no. 3234/2011 in criminal appeal no. 388/2011.

3.

Learned A.P.P. points out that the criminal appeal

no. 427/2011 is filed by the original complainant through Advocate

Mr. Gore under section 372 of the Criminal Procedure Code

against all the ten accused persons challenging their acquittal. This

appeal was listed before this Court and this Court by order passed

on 8th November, 2011 has admitted the appeal and further

directed hearing of the appeal along with criminal appeal

no. 388/2011.

4.

Those two appeals arising out of judgment of Sessions case

no. 295/2007 are already admitted, as we have noticed herein

before. Amongst these two appeals, criminal appeal no. 427/2011

is filed by the person, who has set the criminal law in motion by

reporting occurrence of the incident to the Police.

5.

In this view of the matter, in our opinion, leave under Section

378(3) can be granted in favour of the applicant-State and present

criminal application can be treated as a criminal appeal. We

therefore, are i