Research › Search › Judgment

Bombay High Court · body

2014 DIGILAW 2359 (BOM)

Saji v. State of Maharashtra

2014-11-27

M.L.TAHALIYANI

body2014
JUDGMENT : M.L. Tahaliyani, J. 1. The present appeal has been filed by the appellants against the judgment and order passed by the learned Special Judge under MCOC Act on 29.10.2007. The appellants have been convicted for the offences punishable under Sections 120B, 387 r/w. 34, 452 r/w 34, 506 (Part II) r/w. 34 of IPC. The appellants were original accused Nos. 1, 2, 3 and 6 in MCOC Special Case No. 20 of 2005. The appellants along with three other accused i.e. accused Nos. 4, 5 and 7 were facing trial for the offences punishable under Section 120B of IPC and various Sections under the MCOC Act and Arms Act, in addition to the offences punishable under Sections 452 r/w 34, 387 r/w 34 and 506(Part II) r/w 34 of IPC. The appellants and other accused have been acquitted of the offences punishable under the MCOC Act. They are also acquitted of the offence punishable under the Arms Act and accused No. 5 was acquitted of all the offences. Accused Nos. 4 and 7 were convicted along with appellants for the above stated offences punishable under Sections 120B, 387 r/w. 34, 452 r/w 34, 506 (Part II) r/w. 34 of IPC. 2. The allegations against the appellants and other accused were that they had committed extortion by demanding money from the complainant and his wife and while committing said offence of extortion, they had put the complainant and his wife in fear of death or grievous hurt. It was further alleged that the appellants had committed criminal trespass in the house of the complainant. In addition to this it was also alleged that the appellant had committed an offence of criminal intimidation by extending threats to the complainant and his wife. 3. After framing of charge, the respondent had examined in all twenty witnesses in support of its case. Since the appellants and other accused have been acquitted of the offences punishable under the MCOC Act and the Arms Act, it is not necessary to discuss the evidence pertaining to those offences in the present judgment. The charges for which the appellants have been convicted are mainly based on the evidence of PW-1 Ramdas Shirke (the complainant), PW-3 Rekha Shirke (wife of the complainant) and PW-19 Mr. Nitin Alaknure (Investigating Officer). 4. I have gone through the evidence of these three witnesses. The charges for which the appellants have been convicted are mainly based on the evidence of PW-1 Ramdas Shirke (the complainant), PW-3 Rekha Shirke (wife of the complainant) and PW-19 Mr. Nitin Alaknure (Investigating Officer). 4. I have gone through the evidence of these three witnesses. PW-1 and PW-3 have stated that some of the boys have been regularly attending their house and demanding money. It is also stated in the evidence that from time to time part of the amount was paid to them. However, the crux of the matter is that neither PW-1 nor PW-3 have been able to identify either of the appellants in the Court. It is specifically stated by PW-1 in his evidence that he could not identify any of the appellants during the course of identification parade held in the prison. The conviction appears to have been based on the evidence of the Police Officer PW-19 Mr. Alaknure, who was present when some of the accused were arrested outside the house of PW-1. It was the case of the prosecution that after receiving report from PW-1, a trap was arranged to apprehend the persons who had been indulging into extortion. Four of the accused were arrested in the said trap when they came out of the house of the complainant. 5. As already stated, the conviction is mainly based on the evidence of PW-19 Mr. Alaknure. As far as PW-1 is concerned, he was permitted to be contradicted with his previous statement recorded by the police. However, nothing has come on record in his evidence which can be useful to prove the charges of extortion, criminal intimidation and house tress pass. The evidence of PW-19 can only establish that some of the accused were apprehended outside the house of PW-1. That, obviously, was not sufficient to establish either of the charges. In my opinion, the prosecution had miserably failed to prove either of the charges framed against the appellants. The judgment and order passed by the learned Court as far as the appellants are concerned will have to be set aside. At this stage it is necessary to state here that the learned Advocate for the appellant No. 1 states that the appellant No. 1 is dead. Therefore, the appeal against appellant No. 1 will have to be abated. The judgment and order passed by the learned Court as far as the appellants are concerned will have to be set aside. At this stage it is necessary to state here that the learned Advocate for the appellant No. 1 states that the appellant No. 1 is dead. Therefore, the appeal against appellant No. 1 will have to be abated. However, at the same time the learned APP will have to be requested to ask the police to verify and submit a death certificate. Hence, I pass the following order: ORDER "[i] The appeal filed by the appellant No. 1/accused No. 1 Saji @ Saji Thangappan Joseph stands abated; [ii] The appeal of appellant No. 2 (accused No. 2), appellant No. 3 (accused No. 3), and appellant No. 4 (accused No. 6) is allowed. The judgment and order passed by the learned Special Judge under MCOC Act dated 29.10.2007 in MCOC Special Case No. 20 of 2005 convicting the said appellants for the offences punishable under Sections 120B, 387 r/w. 34, 452 r/w 34, 506 (Part II) r/w. 34 of IPC is set aside. The bail bonds of the appellant Nos. 2, 3 and 4 shall stand cancelled. Fine amount, if any, paid by the appellants shall be refunded to them. [iii] The learned Additional Public Prosecutor for the State is requested to ask the police to verify and submit the death certificate of appellant No. 1 (accused No. 1) for the record of this Court. [iv] Criminal Appeal accordingly stands disposed of."