The State Of Maharashtra vs Sayyed Mohsin Sayyed Hassan And ...
2001 Latest Caselaw 493 Bom

JUDGMENT

Dr. Pratibha Upasani, J.

1. This Criminal Appeal has been filed by the Appellant/State under Section 378(1) of the Code of Criminal Procedure, 1973, being aggrieved by the Judgment and Order dated 26th November, 1985 passed by Additional Sessions Judge, Greater Bombay in Sessions Case No. 677 of 1983.

2. By the impugned Judgment and Order, learned Additional Sessions Judge. Greater Bombay had acquitted all the seven accused of the charges levelled against them under Sections 143. 148 r/w 149, 323 r/w 149, 394 r/w 149 and 506(ii) r /w 149 of the Indian Penal Code.

3. It has to be pointed out that the present Criminal Appeal filed by the State was directed only against the acquittal of original accused Nos. 1 and 5 i.e., Sayyed Mohsin Sayyed Hassan and Prakash Pandharinath

Joshi, who are Respondent Nos. 1 and 2 respectively, to the present Criminal Appeal. It also has to be stated that all the other remaining accused namely accused No. 2 Anthony Veerswamy John @ Kalya Anthony, accused No. 3 Subhash Narayan Mayekar, accused No. 4 Parshuram Maruti Salunke, accused No. 6 Ramesh Hari Malbari and accused No. 7 Rajaram Ganpat Pawar are no more alive. Even original accused No. 1/ Respondent No. 1 herein Sayyed Mohsin Sayyed Hassan expired during the pendency of the present Criminal Appeal and therefore, appeal against original accused No. 1/Respondent No. 1 abates.

4. Ms. Kamat, the learned A.P.P., appearing for the State, so also Ms. Katdare, who is appearing for Respondents, have informed across the bar about the death of the above mentioned accused No. 1. Thus, the present appeal filed by the State of Maharashtra survives only against original accused No. 5/Respondent No. 2 Prakash Pandharinath Joshi.

5. The prosecution story, briefly narrated is as follows :-One Samad Khan, a dreaded gangster and his associates, who were under trial in a murder case were lodged in Arthur Road Jail, Sane Guruji Marg, Bombay. It appears from the prosecution story that Samad Khan somehow was convinced that P.W. 2 Gulam Hussein Mohammed Ramzan (complainant) was the one who had lodged complaint against the said Samad Khan with Police Officer Pathak of Dongri Police Station regarding the murder of Jameel, and he wanted to take revenge of the said act of Gulam Hussein. Accordingly, conspiracy by all the above mentioned accused was hatched as per the prosecution story to assault and otherwise disfigure said Gulam Hussein and his son Nazir Hussein, so as to prevent them from giving evidence against Samad Khan and his associates in the safd murder case, and to sub-serve this purpose, they conspired to forcibly rob P.W. 2 Gulam Hussein Mohammed Ramzan of his jeep bearing No. MMG 7659 and to sub-serve that purpose, obtained signatures of said Gulam Hussein on blank T.T.T.O. forms and other forms forcibly.

As per the prosecution story, the incident in question took place on 5th May, 1983. On the previous day i.e., on 4th May. 1983, at about 5.30 p.m. two persons accompanied by their Advocate came to Noor Baug, a locality in which the complainant/P.W. 2 Gulam Hussein was residing. The names of the said two persons were Alauddin and Siraj, and the name of the Advocate who was accompanying them was one Gadgil. Name of Gadgil was disclosed to Gulam Hussein by Alauddin and Siraj. They both had informed Gulam Hussein that their Advocate had come with them to inspect the place in connection with a murder case of one Jameel of Bandra. Alauddin and Siraj also told that the case in which they were accused had come up on Board and if required, Gulam Hussein might be called as witness. This was the only talk which look place on that day. On 5th May, 1983, at about 9.45 a.m., accused No. 1 Sayyed Mohsin Sayyed Hassan (since deceased) whom P.W. 2 Gulam Hussein knew, came to his residence and gave a message that P.W. 2 was called by Samad Khan in Arthur Road Jail. Samad Khan agreed to go there. Accused No. 1 further did not tell Gulam Hussein as to why Samad Khan has called him in Arthur Road Jail. At 10.00 a.m., Gulam Hussein went to Arthur Road Jail alone. On the gate of Arthur Road Jail, he was asked by the gate man as to whom he wanted to see, and when he told the gate man the name

of Samad Khan, he opened the door and allowed him to go inside the jail. After going inside, Gulam Hussein went in the office room which was on the left hand side, where said Samad Khan was present. One officer of the jail also was present there. Samad Khan was seated on a chair. He told Gulam Hussein (P.W. 2) that he should come with his son Nazir at about 2.00 p.m. for discussing some case, to which. P.W. 2 agreed. Thereafter, P.W. 2 went home.

Thereafter, as per the prosecution story, at about 1.45 p.m.. accused No. 1 again came to the residence of Gulam Hussein with two-three persons. P.W. 2 was not knowing those persons, whowere accompanying accused No. 1. At that time, P.W. 2's son Nazir was also in the house. P.W. 2 was hesitating to go with accused No. 1, because he suspected a foul play after seeing accused No. 1 in the company of those people. However, when accused No. 1 saw that Gulam Hussein was hesitating to accompany him, he pressurized Gulam Hussein to go to Jail. In this way, Gulam Hussein, under pressure, went along with accused No. 1 and those two-three persons. Gulam Hussein's son Nazir also was with them. All of them sat in the jeep bearing No. MMG 7659 and went to Arthur Road Jail. Nazir was driving the jeep. All of them reached Arthur Road Jail roughly at about 2-2.15 p.m. This time also, after giving the name of Samad Khan, the gate of the jail was opened and all of them were allowed inside. On entering the Jail, Gulam Hussein and his son Nazir, so also accused No. 1 Sayyed Mohsin went in a room, which was on the right hand side. This was the very same room, where P.W. 2 had been in the morning. In that room, Samad Khan and three to four more persons were there. As per the prosecution story, these three-four persons, of which mention was made by Gulam Hussein, were accused Nos. 2, 3 and 4, and one more who was not before the Court when P.W. 2 gave his deposition with respect to this incident. Samad Khan then asked Gulam Hussein as to who had lodged complaint with Police Officer Pathak of Dongri Police Station regarding murder of Jameel. Gulam Hussein told Samad Khan that perhaps Farooque, brother of deceased Jameel must have made the complaint. On hearing this, Samad Khan immediately sent for Farooque, who was brought there. In the presence of P.W. 2 Gulam Hussein. Farooque was asked by Samad Khan as to who had made complaint against him (Samad Khan) at Dongri Police Station, and Farooque pointed out to P.W. 2 Gulam Hussein. After seeing this, Samad Khan and one Abdul Kunju started assaulting Gulam Hussein and his son Nazir with fist blows. All this happened in the presence of one Jail Officer, whose name Gulam Hussein could not give, but who was present in the Court when P.W. 2 deposed about the incident. This Jail Officer, referred by the complainant/P.W. 2 Gulam Hussein was the original accused No. 5/Respondent No. 2 herein Prakash Pandharinath Joshi.

As the prosecution story goes further, Samad Khan then asked one warden boy (accused No. 4) to get a barber. Accordingly, accused No. 4 brought a barbar (accused No. 3.). Samad Khan then asked the said barber (accused No. 3) to shave P.W. 2 Gulam Hussein by removing his hair and mustaches. Accused No. 3 then first removed half side mustaches of P.W. 2's son Nazir and then he haphazardly cut the hairs of Nazir and then he haphazardly removed P.W. 2's hairs, P.W.2's mustaches, however, were

not removed. At that time, accused Nos. 1 to 5 were present there. Thereafter. Samad Khan took the razor from the hands of accused No. 3 (barber) and pointed out to the neck of Nazir and pressurized P.W. 2 to sign some blank forms. The said forms were for transfer of Gulam Hussein's jeep in the R.T.O. record. Because of the said threats. P.W. 2 Gulam Hussein signed the said blank forms. After these forms were signed, Samad Khan demanded keys of Gulam Hussein's jeep from his son Nazir. Accordingly, Nazir handed over Lie keys of the Jeep to Samad Khan. Samad Khan then asked Gulam Hussein and his son Nazir to go away. At that time. Samad Khan also deputed one of his person to come out of the Jail to take charge of Gulam Hussein's Jeep, which was parked outside Arthur Road Jail. Accordingly, the said associate of Samad Khan came out and asked Gulam Hussein and Nazir to go away and took charge of Gulam Hussein's jeep.

As the prosecution story goes further, Gulam Hussein and his son Nazir then went to two different haircutting saloons, since their hair were cut haphazardly by the said barber (accused No. 3) at the instance of Samad Khan, and they wanted to get their hair cut properly shaped. Thereafter Gulam Hussein and his son went to C.I.D. Office, where the Police Officer recorded his statement. Thus, F.I.R. came to be lodged on 5th May. 1983. Gulam Hussein and his son were then taken to Delai Road Police Station. After about fifteen days or so, Gulam Hussein was again called to the office of D.C.B., C.I.D. and was confronted with Samad Khan and was taken to Arthur Road Jail, where he was confronted with accused Nos. 4 and 5 and his further statement was recorded. He was also required to visit the Office of the D.C.B., C.I.D. thrice to attend identification parade with respect to various accused concerned in this case. Routine investigation followed and charge-sheet came to be filed against all the seven accused in the Metropolitan Magistrate's 23rd Court, Esplanade, who committed the accused to the Court of Sessions to stand their trial.

6. When charge was framed against the accused under Sections 143, 148 r/w 149. 323 r/w 149, 506(ii) and 395 of the Indian Penal Code, the accused denied the said changes and claimed to be tried. Their defence was that of total denial.

7. The learned Additional Sessions Judge, Greater Bombay, after recording evidence of fourteen witnesses, came to the conclusion that prosecution had failed to prove all the charges framed against the accused beyond reasonable doubt, gave negative findings on all the points for determination and acquitted all the accused. Being aggrieved, the State has now approached this Court by way of filing the present Criminal Appeal under Section 378(1) of the Code of Criminal Procedure. 1973.

8. Though the prosecution has examined as many as fourteen prosecution witnesses and their evidence is quite bulky, since we are concerned only with the State's grievance of acquittal against original accused No. 5/Respondent No. 2, what is relevant for the purpose of deciding this appeal is mainly the evidence of P.W. 2 Gulam Hussein, who was the complainant in this case, and the evidence of P.W. 3 Prabhakar Yeshwant Hastak, who was Senior Jailor of Arthur Road Prison at the relevant time.

9. We have heard learned Counsel for the parties at length. We have also gone through the entire evidence on record, including statements of the accused recorded under Section 313 of the Code of Criminal Procedure. 1973 and the impugned Judgment, and in our considered opinion, this appeal filed by the State against acquittal of Respondent No. 2 deserves to be dismissed.

10. As already observed, for the purpose of deciding this appeal, what is relevant is the evidence of P.W. 2 Gulam Hussein and P.W. 3 Prabhakar Hastak. Their evidence has to be assessed, keeping in view the charges framed against the accused.

11. As far as original accused No. 5/Respondent No. 2 herein is concerned, the prosecution story is that he was a member of the unlawful assembly along with other accused (since dead).

12. P.W. 2 Gulam Hussein has stated that when he entered the office room which was on the left hand side, where Samad Khan was sitting, one officer of the jail also was present there. He stated that he had not seen the said officer properly, but he identified the said officer in the Court, who was accused No. 5.

13. P.W. 3 Prabhakar Hastak who was a Senior Jailor of the Arthur Road Prison, has stated in his deposition that he knew accused No. 5 Prakash Pandharinath Joshi, who was the Jailor-on-duty on 5th May, 1983 at Arthur Road Jail. He has further deposed in his evidence that on 5th May, 1983, Respondent No. 2 was posted on the main gate of the Arthur Road Jail from inside and his function was to supervise incoming and outgoing persons and material. He has further deposed that on 5th May, 1983 i.e. on the day of incident. Joshi was on duty in Arthur Road Jail from 2.00 p.m. to 9.00 p.m. All these particulars were given by him after referring record of Arthur Road Jail, which he had brought with him.

Thus, from the depositions of the Senior Jailor Mr. Hastak (P.W. 3), it is clear that original accused No. 5 was posted at the Arthur Road Jail, and that, he was on duty as a jailor. Thus, his presence at the place, on the relevant day and at the relevant time, is duly established. Accused No. 5 himself, in his statement recorded under Section 313 of the Code of Criminal Procedure, 1973, has admitted that he was on duty as a jailor on that day at Arthur Road Prison. However, it is too much to say that accused No. 5 was member of the unlawful assembly of other six accused and Samad Khan who terrorized and pressurized P.W. 2 Gulam Hussein and his son Nazir, who were disfigured at the instance of other members of the unlawful assembly and at whose instance, P.W. 2 was forced to sign the transfer papers of his Jeep. No doubt, accused No. 5 was very much there, but he was posted there, and was supposed to remain present there. When the other accused came to jail, he was already there, and was there on duty. His mere presence there, does not make him member of the unlawful assembly.

Section 141 of the Indian Penal Code describes unlawful assembly as follows :

141. Unlawful assembly.- An assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is -

First.- To overawe by criminal force, or show of criminal force, the Central or any State Government or Parliament or the Legislature of any State, or any public servant in the exercise of the lawful power of such public servant; or

Second.- To resist the execution of any law, or of any legal process; or

Third.- To commit any mischief or criminal trespass, or other offence; or

Fourth.- By means of criminal force, or show of criminal force, to any person to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or

Fifth.- By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.

Explanation.- An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly."

If we analyse the ingredients of Section 141 of the Indian Penal Code, it will be too far-fetched an Idea to say that the accused No. 5, who was posted at Arthur Road Jail, at the relevant time as a Jailor, just because he was there, became member of the unlawful assembly along with other miscreants, though he had not done anything or omitted to do something which would make him a members of unlawful assembly.

14. To convict a person under Section 141 of the Indian Penal Code, it must be proved that he was one of the persons, constituting an assembly, and he entertained along with the other members of the assembly, the common object as defined by Section 141 of the Indian Penal Code. Mere presence of a person at the place where members of an unlawful assembly have gathered for carrying out their illegal common object, does not Incriminate a person who is present there. The question is of fact in each case as to whether a person happens to be innocently present there or actually a member of unlawful assembly. Reference can be conveniently made to the decision of the Supreme Court in Masalti v. State of Uttar Pradesh. The Apex Court in this decision had laid down the tests to come to a conclusion as to when the assembly of persons can be called unlawful and whether mere presence in an assembly of a person makes him a member of that unlawful assembly, and this is what the Supreme Court observed :

"..... The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified by Section 141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had Joined the assembly as a matter of Idle curiously without intending to entertain the common object of the assembly .......".

15. Considering the facts of the present case at hand, as already observed by us, accused No. 5 was present there, because he was posted there as a jailor and his being present there, was but natural. Nay, in fact, it was his duty to remain present there. Some of the accused, however.

came from outside, while Samad Khan was already lodged in the jail as an under-trial and the barber also, was a convict, who was undergoing a sentence. The warden boy accused No. 4 also was the employee of the Jail. Obviously, the barber and the warden boy accused No. 4 obeyed the command (order) of Samad Khan, while the other accused who had come from outside, came inside the jail with a definite object to pressurize and threaten P.W. 2 Gulam Hussein. Accused No. 5 had nothing to do with their plan and was present there just for discharging his duty as a Jailor.

16. Having heard both the Advocates and having gone through the evidence on record, and the impugned judgment. We find that the Trial Court has rightly acquitted Respondent No. 2/original accused No. 5. We find no infirmity in the said Judgment. There is no merit in this appeal, which deserves to be dismissed. Hence, the following order :

Criminal Appeal No. 351 of 1986 is dismissed.