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2021 Supreme(Bom) 1792
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.S.Shinde, Surendra P.Tavade, JJ.
Ahya @ Alankar Nitin Talekar - Appellant
Versus
State Of Maharashtra - Respondent
Criminal Appeal No. 554 of 2001 with Criminal Appeal No. 790 of 2001
Decided On : 25-11-2021
S. S. Hulke, Advocate, Bhavin Jain, Advocate, Ganesh Gole, Advocate, Kuldeep Patil, Advocate, Raju M. Yamgar, Advocate, Sachin K. Hande, Advocate, Harshad Sathe, Advocate, Harshad Bhadbhade, Advocate, Rajendra Sorankar , Advocate
The prosecution must establish the conspiracy and the identity of the assailant beyond a reasonable doubt, and the TI parade must be properly conducted to establish the charge against the accused.
Headnote:
Conspiracy - Indian Penal Code - Sec. 307 r/w 34 - Ss. 143, 144, 147, 148, 149, 307, 120B - Summary: The court dismissed the appeal by the State and allowed the appeal by Accused No. 4, quashing the conviction. The court found that the prosecution failed to prove the conspiracy and the identity of Accused No. 4 as the assailant beyond a reasonable doubt. The TI parade was not properly held, and the charge against Accused No. 4 was not established. The court set Accused No. 4 at liberty and directed the refund of any fine paid by him.
Fact of the Case:
The Informant, Milan Mhatre, a member of the Janta Dal Party, had made complaints against the President of Mira Bhayander Municipal Corporation, Accused No. 1. He was assaulted, and Accused No. 4 was convicted for the offense under Sec. 307 of IPC. The State appealed against the acquittal of Accused Nos. 1 to 3 and 6 to 8.
Finding of the Court:
The court found that the prosecution failed to prove the conspiracy and the identity of Accused No. 4 as the assailant beyond a reasonable doubt. The TI parade was not properly held, and the charge against Accused No. 4 was not established.
Issues: The main issues were the failure to prove the conspiracy and the identity of the assailant, the improper conduct of the TI parade, and the lack of evidence to establish the charge against Accused No. 4.
Ratio Decidendi: The court held that the prosecution failed to establish the conspiracy and the identity of the assailant beyond a reasonable doubt. The TI parade was not properly conducted, and the charge against Accused No. 4 was not proven.
Final Decision: The court dismissed the appeal by the State, allowed the appeal by Accused No. 4, quashed the conviction, set Accused No. 4 at liberty, and directed the refund of any fine paid by him.
JUDGMENT
SURENDRA P.TAVADE, J. - Both the appeals are directed against the judgment and order dated 30th June, 2001 passed by the Additional Session Judge, Thane, in Session Case No. 294 of 1999.
2. Criminal Appeal No. 554 of 2001 is preferred by the Original Accused No. 4, who was convicted for the ofence punishable under Sec. 307 r/w 34 of the Indian Penal Code (for short "IPC ") and sentenced to sufer RI for fve years and to pay fine of Rs. 1, 000.00, in default in payment of fine, he was directed to undergo RI for six months. The Original Accused No. 5 was also convicted as above, but he did not prefer an appeal against the said order.
3. The Original Accused Nos. 1 to 3 and 6 to 8 have been acquitted for the ofence charged against them. Therefore, the State has preferred the appeal bearing No. 790 of 2001. The parties to both the appeals shall be called and referred as per their status in the original Sessions Case No. 294 of 1999.
4. Facts giving rise to the present appeals, can be summarized as under:
The Informant, Milan Mhatre (PW-1) was active member of Janta Dal Party, while Accused No. 1 was the member of Congress Party. At the relevant time, Accused No.1 was President of MiraBhayander Municipal Corporation. The Informant had made number of complaints about malpractices, corruptions against Accused No. 1. The Informant had also filed Public Interest Litigation (PIL) in the High Court for dissolving the Municipal Corporation headed by Accused No. 1. In view of the said PIL, show cause notice was issued to the Municipal Corporation by the Government. Thereafter, the MiraBhayander Municipal Corporation was dissolved. Accused No. 1 was banned from contesting election for a period of six years. The Informant had also made complaint against the revenue ofcers, the ofcers of Municipal Corporation and other government servants for their alleged corrupt activities.
5. On 20/1/1999, the Informant along with his friend Tiwari had been to the Mira Road for celebrating festival of Eid. He parked his scooter on rear side of his shop at Bhayander (west). After celebrating Eid festival, the Informant and his friend Tiwari returned to Bhayander (west) at about 10:40 p.m. The Informant tried to start his scooter, but it could not start, he suspected that plug wire must have been disconnected, so he removed the panel of scooter and started checking the plug connection. It is alleged that two persons came near the Informant and subsequently four other persons followed them.
6. The Informant made inquiry with the first person, but he took out the chopper from his waist. He rushed towards the Informant. The Informant held his hand, but the said person assaulted the Informant by chopper, thereafter, the other persons also rushed towards the Informant and started assaulting him. The friend of the Informant Mr. Tiwari tried to intervene in the scufe, but he was also assaulted by the unknown persons. The Informant fell down on the road. He sustained injuries on head, right thigh near private part of the body. The said injuries were serious in nature. The Informant and Tiwari raised shouts, thereafter, the assailants ran way. Mr. Tiwari took the Informant to the Nakoda Hospital. It is alleged by the Informant that as he had lodged many complaints against Accused No. 1 and had also filed PIL against Accused No. 1, therefore, the Informant expressed his doubt over Accused No. 1 for the assault on him.
7. The doctors of Nakoda Hospital informed the incident to the police. Accordingly police from Bhayander Police Station rushed to the Nakoda Hospital. The police recorded statement of the Informant, which was stated as FIR. On the basis of the said statement, crime bearing No. 7 of 1999 came to be registered under Ss. 143, 144, 147, 148, 149, 307, 120B of the IPC, under Ss. 37(1) and 135 of the Bombay Police Act, against unknown persons. The Investigating Ofcer recorded the statement of eye witness Tiwari. He described the scene of ofence, accordi
