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1997 (2) Crimes 228
BOMBAY HIGH COURT (DB)
Vishnu Sahai and S.S. Parkar, JJ.
The State of Maharashtra -Appellant
versus
Joseph Mingel Kolt& Ors. -Respondents
Criminal Appeal No. 800 of 1982
Decided on 1-8-1996
Counsel for the parties:
For the Appellant: Mr. RP. Behere, Addl Public Prosecutor.
For the, Respondent Nos. 1 and 4 to 12: Mr. Raja Thakare, Advocate.
IMPORTANT POINT
The appellate Court would not interfere with an order of acquittal unless it is perverse or infirm or palpably erroneous.
Headnote:(i) Criminal Procedure Code, 1973 - Section 378(1) - Appeal against acquittal - Scope - Norms wJ1ich are to be followed by Appellate Court before reversing a judgment of acquittal- It should be slow to interfere with an order of acquittal Appellate Court would not interfere unless order of acquittal is perverse or infirm or palpably erroneous Appellate Court has undoubted power to review entire evidence and to come to its own conclusion - However, it should express reasons in its judgment while reversing Judgment of acquittal.
(Paras 10 & 11)
(ii) Criminal Procedure Code, 1973 - Section 378(1) - Indian Penal Code, 1860 - Sections 143, 144, 147, 148, 324/149, 323/149, 337/ 149, 436/149, 450 and 395 –Acquittal, for offences under - Appeal Order of acquittal founded on fact that identity of respondents not established - Eye witnesses - Evidence of two witnesses, namely P. W. 1 and P.W.3 fixes identity of respondents beyond all reasonable doubt Informant also nominated all respondents in F.I.R. - Prompt interrogation of witnesses. - They are wholly independent witnesses - Possibility of false implication ruled out - Their evidence proves involvement of respondents in the incident - Impugned judgment of acquittal is founded on a perverse judicial approach and has to be set aside. (Paras 12, 13, 14, 15, 21, 23)
(iii) Nature of Offence - Indian Penal Code, 1860 - Sections 144, 148 - Joining unlawful assembly armed with deadly weapon and rioting - Liability is individual and not constructive - General allegation that respondents threw stones, soda water bottles, lighted crackers and lighted cloth balls - Not sufficient to make a person liable u/ss. 144 & 148 - Acquittal for these offences confirmed. (Para 28)
(iv) Indian Penal Code, 1860-Sections 395 and 391 - Dacoity and robbery - Clauses (a) or (b) or (c) of Section 390 have to be read conjunctively with (d) and (e) - It is only when (a) or (b) or (c) co-exist with (d) and (e) would theft amount to robbery - Act of throwing stones, bottles, crackers etc. inside a cafe - Some took away some items of grocery lying inside - Offence would not be come dacoity. (Para 31)
(v) Indian Penal Code, 1860-Sections 143, 147, 324 r/ws 149, 323/149, 337/149 and 436/149 Unlawful assembly - Once a membership of an unlawful assembly is established - Prosecution not to establish whether any specific overt act has been assigned to any accused Mere membership of unlawful assembly is sufficient - Respondents without any provocation threw stones, soda water bottles, crackers and cloths balls inside a cafe damaging property - Injuries caused to three persons - Conviction u/ss 143, 147, 324/149, 32S/149, 436/149 and 337/149 - Sentences to be awarded.
Held: Our first reaction was not to show any leniency to the respondents because without 'any provocation in a very high handed and planned manner, they committed acts of vandalism, resulting in destruction of property of Antaya Shetty, injuries being caused to the three persons including Antaya Shetty and the kitchen of Vijay Cafe being damaged on account of the crackers (anarkalis), stones, cloth balls and soda water bottles being thrown by them. As a result of their acts, the kitchen of Vijay Cafe was also damaged by fire. However on a deeper reflection of the matter, we came to the conclusion that the instant case does not call for a jail sentence and a sentence of fine alone would meet the ends of justice. The reasons, which have weighed with us in reaching this conclusion are set out hereinafter:
i. The incident took place more than 18 years ago;
ii. No specific overt acts have been assigned in the incident to any of the respondents;
iii. The evidence is that the respondents were merely acting under the influence of respondent Joseph Koli. They have been described as his boys and the evidence is to the effect that on his exhortation to the effect "Boys, stone the hotel break it and take him out." They started hurling stones, soda water bottles, crackers and cloth balls inside Vijay Cafe;
iv. Excepting respondent Ganpat Patil other respondents were young in years at the time of the incident and it appears that on account of their impressionable ages, they succumbed to the moral influence of respondent Jo seph Koli, respondent Bhalchandra Wagh was aged about 28 years at the time of the incident; respondents Liladhar Patil and Vishwanath Koli were then aged about 25 years; respondents Anthony Koli and Dinanath Koli were less than 20 years of age at the time; and respondent Nilkanth Path was aged about 24 years at that time;
v. The old age of the respondent Ganpat Path At the time of the incident, he was aged - about 55 years and today, he is aged about 73 years;
vi. The respondent Joseph Koli who was the principal accused and the architect of the whole show is already dead and the respondents are only his stooges; and
vii. There is nothing to indicate that any of these respondents have bad antecedents or convictions to their discredit.
In our view, the ends of justice would be squarely satisfied if each of the respondents are sentenced in the manner stated hereinafter:
a. Under section 143 IPC to pay a fine of Rs. 500/- in default to undergo 1 month RI;
b. Under section 147 IPC to pay a fine of Rs. 500/- in default to undergo 1 month RI;
c. Under section 324 read with 149 IPC (for causing hurt to Antaya Shetty) to pay a fine of Rs. 1,000/- in default to undergo 6 months RI;
d. Under section 324 read with 149 IPC (for causing hurt to Krishna Gauda @ Krishna Shetty) -to pay a fine of Rs. 1,000/- in default to undergo 6 motnths RI;
e. Under section 323 read with 149 IPC to pay a fine of Rs. 500/- in default to undergo 3 months RI;
f. Under section 337 read with 149 IPC to pay a fine of Rs. 1,000/- in default to undergo 6 months RI; and
g. Under section 436 read with 149 IPC to pay a fine of Rs. 2,500/- in default to undergo 2 years RI. (Paras 37, 38)
(vi) Criminal Procedure Code, 1973 - Section 154- First In formation Report - Delay in lodging Whether always fatal? -- (No)
Held: The answer to the question whether the F.I.R in a given case has been lodged belatedly or not is always a question of fact and has to be answered bearing in mind the facts of the case in question and also the explanation furnished by the prosecution in case there is some delay in its being lodged. There can be no mathematical computation of the time taken in the lodging of the F.I.R What the Court has to examine is whether the delay is inordinate and whether any cogent explanation is forthcoming in case it is so, Some delay in the lodging of the F.I.R is only natural and would not detract from the value to be attached to it. A little delay is sometimes bound to be there. When persons are placed in situations like the one in which Antaya Shetty must have been after the incident, no one forsees that slight delay in the lodging of the F.I.R would prove fatal to his case. There are graver things, which seize his mind at that point of time. (Para 17)
(vii) Evidence - Interested witnesses - Not to be mechanically rejected - Law only requires that evidence of such witnesses should be scrutinised with caution. (Paras 19, 21)
Result: Appeal allowed accordingly. Acquittal of respondents u/ss 144, 148,395 and 450 I.P.C. confirmed.
JUDGMENT (ORAL)
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 Antaya Shetty and Krishna Gauda) 323 read with 149 I.P.C., 337 read with 149 I.P.C., 436 read with 149I.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 Path 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. Abetment 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 Path. Ba1chandra Pandurang Wagh. Nilkanth Vishnu PatH. Dinanath Jivan Kob. 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 Café, which stood in the mime 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 langual1e. 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 stones 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 Café, 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 vandalisim the respondents are alleged to have ran away. In the meantime Fire -brigade with a police van and a police jeep arrived. The police too
