PUSHPA V.GANEDIWALA,J. - (1.) This Criminal Appeal is filed by the Appellant - State of Maharashtra under Section 378(1) of the Code of Criminal Procedure, 1973 being aggreived by the Judgment and Order of acquittal dated 30/04/2008 passed by the learned Ad-hoc Additional Sessions Judge, Yavatmal in Sessions Case No.25/2008, thereby acquitting all the fourteen accused of the offences punishable under Sections 147 , 148 , 304 , 436 , 307 , 427 , 337 and 294 read with Section 149 of the Indian Penal Code and under Section 135 of the Maharashtra Police Act. During the pendency of this appeal respondent No. 9 - Sonabai Yadav Atram and respondent No. 11 - Ranjeet Madavi were reported to be dead and the appeal against them stood abated. Accused/respondents herein are referred as per their original position during the trial.
(2.) The case of the prosecution in short is as follows : (i) PW/2 - Santosh Jaiswal, resident of Yavatmal, was the owner of one country liquor shop situated in village Dongarkharda, District Yavatmal and PW/1 - Shankar Yelekar was the manager of the said shop. (ii) That on 03/03/2007, on the day of Holi festival, accused No.1 - Dipak had consumed liquor of Rs.5/- from the liquor shop of PW/2 - Santosh and refused to pay for it. On the contrary, he was asking Rs.95/- in return saying that he had already paid Rs.100/-. A quarrel took place between PW/1 - Shankar and accused No.1 - Dipak. PW/1 - Shankar informed about the incident to the owner of the liquor shop i.e. PW/2 - Santosh on his mobile. PW/2 - Santosh reached the shop alongwith his brother - Satish in his Wagon R Car. While trying to persuade accused No.1 - Dipak, a quarrel took place between them. PW/2 - Santosh alongwith Shankar and Satish returned to his shop. A mob of 50-60 persons armed with sticks and stones ran after PW/2 - Santosh and his companions. Apprehending assault, PW/1 - Shankar, PW/2 - Santosh and Satish entered into the shop and closed the shutter. The mob started pelting stones on the shutter of the shop. In the meantime, PW/3 - Manish also reached the spot in his Indica Car. PW/2 - Santosh took him inside the shop by lifting the shutter. Thereafter, the mob had also burnt the vehicles standing in front of the shop which included three cars i.e. Indica, Wagon R and Maruti and three two wheelers. (iii) In the meantime, the Police reached the spot. They got open the shutter and the persons inside the shop were brought out under the protection of Police. However, PW/3 - Manish got trapped in the mob and was beaten by the mob with stones/sticks on his head. PW/6 - Maroti Fulpagar, PSI got released PW/3 - Manish from the trap of the mob and took him to the Police Chowki, Dongarkarda and from there to the hospital at Yavatmal and then Nagpur, where he was admitted in the hospital for 15 days. Satish, who hided himself in the shop, remained in the shop. The furious mob burnt the shop itself which resulted into the death of Satish by suffocation. (iv) On the report of PW/1 - Shankar, Crime No.24/2007 dated 04/03/2007 came to be registered with the Police Station, Kalamb, District Yavatmal. PW/6 - Maroti prepared Spot Panchanama (Exh.44). As the person who remained inside the shop i.e. Satish died due to suffocation, PW/6 - Maroti prepared his Inquest Panchanama (Exh.45). He seized stones lying on the spot under Panchanama (Exh.46). The dead body of Satish was sent for postmortem. The postmortem report is at Exh.54. The injured persons - Dnyaneshwar, Ravindra, Devidas, Vijay, Manish and others were sent for medical treatment. PW/6 - Maroti recorded statements of the witnesses. After completion of investigation, he filed chargesheet before the Court of Judicial Magistrate First Class, Kalamb, District Yavatmal. (v) As the offence punishable under Section 304 of the Indian Penal Code is exclusively triable by the Court of Sessions, the Court of J.M.F.C., Kalamb committed the case to the Court of Sessions, Yavatmal. The Court of Sessions, Yavatmal framed charge (Exh.23) against the accused persons for the offences punishable under Sections 147 , 148 , 304 , 436 , 307 , 427 , 337 and 294 read with Section 149 of the Indian Penal Code and under Section 135 of the Maharashtra Police Act. The accused persons pleaded not guilty and claimed to be tried. Their defence was of total denial. (vi) The prosecution examined in all eight witnesses. The accused preferred not to examine any witness. The learned Sessions Judge, Yavatmal recorded the statements of the accused persons under Section 313 of the Code of Criminal Procedure. The learned Sessions Judge, Yavatmal after hearing both the sides, acquitted all the accused persons for want of sufficient evidence. This Judgment and Order is challenged in the present Criminal Appeal.
(3.) We have heard the learned counsel Shri Jaltare on behalf of the accused persons, learned APP Shri Sonak on behalf of the State and learned counsel Shri Atharva Manohar for the victim, assisted the learned APP.;