Bombay High Court
Ahya @ Alankar Nitin Talekar vs State Of Maharashtra on 25 November, 2021
Bench: S.S. Shinde, Surendra Pandharinath Tavade
Digitally signed
by
RUSHIKESH V
RUSHIKESH PATIL
V PATIL Date:
2021.11.26
17:31:46
R. V. Patil 1 of 33 1. cr.apeal.790.2001 a.w cr. apeal.554.2001.doc
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 554 OF 2001
Ahya @ Alankar Nitin Talekar ... Appellant
(Orig. Accused No.4)
Versus
The State of Maharashtra
(At the instance of Bhayander Police
Station, Thane) ... Respondents
WITH
CRIMINAL APPEAL NO. 790 OF 2001
The State of Maharashtra
(Through Bhayander Police Station
at the instance of Milind V Mhatre.) ... Appellant
(Orig. Complainant)
Versus
1) Gilbert John Mendosa
2) Mukesh Shantilal Meheta
3) Pintya @ Vivek Prabhakar Pawar
4) Ravi @ Ravikumar Ghanshyam Bhabra }
5) Manoj Mahadeo Sawant ... Respondents
(Orig. Accused Nos.
1, 2, 3, 6 &7)
.....
Mr. S. S. Hulke, APP for the Appellant-State in Appeal No. 790/2001.
Mr. Bhavin Jain i/b Mr. Ganesh Gole for Appellant in Appeal No.
554/2001.
Mr. Kuldeep Patil a/w Mr. Raju M. Yamgar i/b Mr. Sachin K. Hande for
Respondent No. 1 in Appeal No. 790/2001.
Mr. Harshad Sathe i/b Harshad Bhadbhade for Respondent No. 5 in
Appeal No. 790/2001.
Mr. Rajendra Sorankar for Respondent No. 3 in Appeal No. 790 of
2001.
......
R. V. Patil 2 of 33 1. cr.apeal.790.2001 a.w cr. apeal.554.2001.doc
CORAM: S. S. SHINDE AND SURENDRA P. TAVADE, JJ.
DATE ON WHICH JUDGMENT IS RESERVED: 20th OCTOBER, 2021
DATE ON WHICH JUDGMENT IS PRONOUNCED: 25 th NOVEMBER,
2021
JUDGMENT (PER 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
Section 307 r/w 34 of the Indian Penal Code (for short "IPC") and
sentenced to sufer RI for fve years and to pay fne of Rs. 1000/- , in
default in payment of fne, 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
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Party. At the relevant time, Accused No.1 was President of Mira-
Bhayander Municipal Corporation. The Informant had made number
of complaints about malpractices, corruptions against Accused No. 1.
The Informant had also fled 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 Mira-
Bhayander 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 20th January, 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 frst person, but he took out
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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
fled 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 Sections 143, 144,
147, 148, 149, 307, 120B of the IPC, under Sections 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, accordingly, scene of ofence panchanama was
prepared. The accused came to be arrested. Accused No. 4
produced the chopper, which was seized under panchanama. The
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clothes of Accused No. 4 came to be seized. Accused No. 3
produced cash of Rs. 4900/-, which he alleged to have been accepted
for assaulting the Informant. The father of Accused No. 4 also
produced amount, which according to prosecution was accepted by
Accused No. 4 for assault on the Informant. The Investigating Ofcer
requested Executive Magistrate to hold Test Identifcation Parade ("TI
parade" for short). Accordingly, in the TI parade, the Informant and
witness Tiwari identifed the Accused. After completion of the
investigation, charge-sheet came to be fled against the accused.
8. As the ofence under Section 307 of IPC was triable by the
Court of Session, hence, learned Magistrate committed the case of
accused to the Court of Session at Thane. On the appearance of the
accused persons, charge came to be framed against them for the
ofences punishable under Sections 143, 144, 147, 148, 149, 307,
120B of the IPC, and under Sections 37(1) and 135 of Bombay Police
Act. The accused plead not guilty and claimed to be tried. The
prosecution has relied on the evidence of as many as thirteen
witnesses. The accused did not lead any evidence in support of the
defence.
9. On going through the evidence on record, the Additional
Session Judge acquitted Original Accused Nos. 1 to 3 and 6 to 8.
Accused Nos. 4 and 5 have been convicted for the ofence punishable
under Sections 307 of IPC and sentenced to sufer RI for fve years
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each, and pay fne of Rs.1000/- each, in default, they were directed to
undergo RI for six months, each. The said order is impugned in this
appeal by Accused No. 4. As Accused Nos. 1 to 3 and 6 to 8 have
been acquitted, therefore, the State has preferred appeal against the
said order of acquittal.
10. On behalf of Accused No. 4 it is submitted that the trial Court
has not appreciated the evidence of the Informant and eye witness
Tiwari in the proper perspective. It is contended that the Informant
had many enemies as he was in habit of fling complaints against
many ofcers and others. It is contended that the Informant was
having criminal record, therefore, his evidence should have been
discarded by the trial Court. It is contended that the Informant had
identifed Accused No. 4 as his assailant, but the other eye witness
Tiwari did not identify any of the accused. It is also contended that the
incident had taken place in the night. The Informant did not give
complete description of the assailants namely Accused No. 4 in his
FIR. The TI parade held at belated stage. It is contended that after
arrest of Accused No. 4, his photo was fashed in the electronix media
as well as in the print media, therefore, the Informant had seen him
prior to the TI parade. It is contended that the recovery of chopper at
the instance of Accused No. 4 is not proved. The seized chopper has
no nexus with the crime. It is contended that the judgment and order
of the trial Court is not legal and valid. Hence, it is prayed on behalf of
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Accused No. 4, that the accused may be acquitted by allowing his
appeal.
11. On behalf of the State it is submitted that, the trial Court has not
considered the evidence of the Informant and eye witnesses in the
proper perspective and wrongly acquitted Accused Nos. 1 to 3 and 6
to 8. The trial Court has not appreciated and scanned the evidence
properly. It is prayed that the judgment and order of acquittal passed
in favour of Accused Nos. 1 to 3 and 6 to 8 be set aside and they may
be convicted for the ofences charged against them. It is contended
that there is sufcient evidence on record against Accused No. 4. The
trial Court has properly considered the evidence and correctly
convicted Accused No. 4. There is no merit in the appeal of Accused
No. 4, thus it is prayed that appeal of Accused No. 4 be dismissed.
12. On behalf of Accused Nos. 1 to 3 and 6 to 8 it is submitted that
the Informant and eye witness Tiwari have not identifed Accused Nos.
1 to 3 and 6 to 8 before the Court. There is no evidence on record to
prove the involvement of Accused Nos. 1 to 3 and 6 to 8 in the present
crime. The trial Court has correctly appreciated the evidence on
record and acquitted them, therefore, there is no need to interfere with
the fndings of the trial Court.
13. The entire prosecution case revolves around the evidence of
the Informant Mr. Milan Mhatre and eye witness Mr. Surendra Tiwari.
R. V. Patil 8 of 33 1. cr.apeal.790.2001 a.w cr. apeal.554.2001.doc
The Informant deposes that he is social worker and he was President
of Janta Dal, at the relevant time, he used to make complaints against
the revenue ofcers, employees of Mira-Bhayander Municipal
Corporation and other public servants regarding their alleged illegal
activities. He also deposes that he had fled complaint against the
President of Mira Bhayander Municipal Corporation, namely, Accused
No. 1. It is also deposed by the Informant that anti corruption bureau
had raided the premises of Accused No. 1. It is also came in the
evidence of the Informant that he had fled PIL against the illegal
activities of the President and corporators of the Mira Bhayander
Municipal Corporation. It is also came in the evidence that in the said
PIL the Hon'ble High Court had issued notice to the Government of
Maharashtra. Thereafter, the Government of Maharashtra had
dissolved the Mira Bhayander Municipal Corporation. It is also came
in the evidence of the Informant that Accused No. 1 was prohibited
from contesting election for the period of six years. In view of the
above facts the Informant had expressed his apprehension that
Accused No. 1 might have conspired with other co-accused to kill him.
14. In the cross-examination, the Informant has admitted that he
had dispute with Mr. Suresh Patil and his brother. Suresh Patil and his
brother had prosecuted him for the ofence of rioting but he was
acquitted in the said case. He also admitted that Mr. Ketkar, PSI had
fled complaint against him. He also admitted that Shripati Sharma
and others had fled case against him alleging that he was collecting
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money from the hutment dweller of 'Jay Ambe Zopadpatti'. He also
admitted that during his tenure as a President of Janta Dal, many
persons were envied on him. He also admitted that due to dissolution
of Mira-Bhayander Municipal Corporation, many councillors were
furious against him.
15. On the basis of the above evidence, the learned APP submits
that Accused No. 1 had sufered setback due to dissolution of Mira
Bhayander Municipal Corporation. Similarly, he was banned from the
contesting election for the period of six years. Thus, Accused No. 1
had grudged against the Informant. So he must have hatched the
conspiracy against the Informant. In view of the above submission it is
to be seen, whether the prosecution had adduced the evidence to
prove the hatching of conspiracy by Accused No. 1. Merely because
Accused No. 1 had grudged against the Informant, it ipso facto cannot
prove that Accused No. 1 must have had hatched the conspiracy
against the Informant. There must be positive evidence to prove the
conspiracy. The criminal conspiracy is defned under Section 120-A of
the Indian Penal Code which read as under:
" Essential ingredients of ofenne of nriminal nonspirany is the
agreement to nommit ofennee In a nase where the agreement
is for annomplishment of an ant whinh by itself nonstitutes an
ofenne, then in that event no overt ant is nenessary to be
proved by the prosenution benause in sunh a situation
nriminal nonspirany is established by proving sunh an
agreemente In other words, where the nonspirany alleged is
with regard to nommission of a serious nrime of the nature as
nontemplated in Sention 120-B of the Indian Penal Code read
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with the provision of Sub-sention - 2 of Sention120-A, then in
that event mere proof of an agreement between the annused
for nommission of sunh a nrime alone is enough to bring
about a nonvintion under Sention 120-B and the proof of any
overt ant by the annused or by anyone of them would not be
nenessarye"
16. In the present case, on going through the evidence of the
Informant, he simply expressed his apprehension that due to his fling
of PIL, Accused No. 1 was enragged / annoyed and he had grudged
against the Informant. So the Informant expressed his fear that
Accused No. 1 might have hatched the conspiracy, but the
prosecution has not laid evidence about the relation between Accused
No. 1 on one hand, and Accused Nos. 3 to 8 on the other hand. The
Informant has inferred that Accused Nos. 3 to 8 were in close
association with Accused No. 1 or they are followers of Accused No.
1. It is not brought on record that Accused Nos. 3 to 8 were in
company of Accused No. 1 prior to the incident or thereafter. There is
no pre-mediation, pre-plan, prior meeting of mind in between Accused
No. 1, and the rest of the accused nor there is any evidence or
conduct of Accused No. 1 prior to the incident or after the incident qua
the rest of the accused and vice versa. No doubt, the Informant has
deposed that he had fled PIL, wherein, the government has taken
drastic decision of dissolving the Mira Bhayander Municipal
Corporation and removed Accused No. 1 from the chair. But, that ifso-
facto does not mean that Accused No. 1 had hatched the conspiracy.
It is apprehension of the Informant that Accused No. 1 might have a
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reason to do so, but the prosecution will have to travel distance in
between "might have" and "must have". Merely because there was
some ground, which developed some animosity and grudge in the
mind of Accused No.1, it cannot be inferred that Accused No. 1 had
hatched the conspiracy. The evidence of the Informant is completely
silent on the point that Accused No. 1 had closed contact with
Accused Nos. 3 to 8 and he engaged them to eliminate him. One
must also take into consideration the conduct and behavior of the
Informant. The Informant has admitted that he had dispute with many
persons namely Suresh Patil, PSI Ketkar, councillors and revenue
ofcers of Mira Bhayander Municipal Corporation, etc. He has also
admitted that in the year 1991, he was murderously assaulted by
some persons, wherein, he had sustained thirteen injuries. The said
incident of assault had taken place at broad day light. So it can be
said that the Informant had many enemies .
17. It is alleged against Accused Nos. 1 and 2 that they had
hatched the conspiracy. It is alleged against Accused No. 2 that he
had attended meeting of Accused No. 1, but the said meeting was
arranged by Accused No. 1 as a President of Municipal Corporation.
To prove the said meeting, the prosecution has examined Mr. Vijay S.
Patil (PW-9) to produce notice of meeting dated 23 rd November, 1998.
The minutes of meeting dated 23 rd November 1998, 22nd September
1998 and 27th January 1999. All these documents are admitted by the
defence, hence, witness Mr. Vijay Patil was discharged. The said
R. V. Patil 12 of 33 1. cr.apeal.790.2001 a.w cr. apeal.554.2001.doc
meeting is not sufcient to infer that Accused No. 2 had shared any
common intention with Accused No. 1 to hatch the conspiracy. No
evidence is laid by the prosecution to establish the meeting of
Accused No. 1 and other accused persons. Similarly, it is not
established that Accused No. 1 had closed relations with Accused
Nos. 3 to 8 prior to the incident or even subsequent to it.
18. Mr. Kuldeep Patil, learned Counsel for Accused Nos. 1 to 3 and
6 to 8 submits that there is no evidence to prove the criminal
conspiracy. He also submits that to substantiate the case, the ratio
laid down in the case of P. K. Narayanan V/s. State of Kerala
{(1995) 1 SCC 142), wherein, read as under:
" The ingredients of the ofenne of nriminal nonspirany are
that there should be an agreement between the persons who
are alleged to nonspire and the said agreement should be for
doing of an illegal ant or for doing by illegal means an ant
whinh by itself may not be illegale Therefore the essenne of
nriminal nonspirany is an agreement to do an illegal ant and
sunh an agreement nan be proved either by dirent evidenne
or by nirnumstantial evidenne or by both and it is a matter of
nommon experienne that dirent evidenne to prove nonspirany
is rarely availablee Therefore the nirnumstannes proved
before, during and after the onnurrenne have to be
nonsidered to denide about the nomplinity of the annusede
But if those nirnumstannes are nompatible also with the
innonenne of the annused persons then it nannot be held that
the prosenution has sunnessfully established its nasee Even if
some ants are proved to have been nommitted it must be
nlear that they were so nommitted in pursuanne of an
agreement made between the annused who were parties to
the alleged nonspiranye Inferennes from sunh proved
nirnumstannes regarding the guilt may be drawn only when
sunh nirnumstannes are innapable of any other reasonable
explanatione"
R. V. Patil 13 of 33 1. cr.apeal.790.2001 a.w cr. apeal.554.2001.doc
In the present case we also observed that the prosecution has not laid
any evidence to establish that Accused Nos. 1 and 2 conspired with
Accused Nos. 3 to 8 to eliminate the Informant. It is mere suspicion,
surmised or inferences of the Informant that he fled several
complaints against Accused No. 1 and ultimately fled PIL in
pursuance thereof, the Mira Bhayander Municipal Corporation was
dissolved by the government, therefore, Accused No. 1 had grudged.
So it can simply be said that it was suspicion in the mind of the
Informant that due to his complaints, Accused No. 1 had enragged /
annoyed and he hatched the conspiracy, but there is no material to
that efect.
19. Learned Counsel for Accused Nos. 1 to 3 and 6 to 8 also relied
on the ratio laid down in the case of State of Goa V/s. Sanjay
Thakkaran & Another {(2007) 3 SCC 755} , wherein, it was held as
under:
" While exernising the powers in an appeal against the order of
anquittal the nourt of appeal would not ordinarily interfere with
the order of anquittal unless the approanh of the lower nourt is
vitiated by some manifest illegality and the nonnlusion arrived
at would not be arrived at by any reasonable person and,
therefore, the denision is to be nharanterised as perversee
Merely benause two view are possible, the nourt of appeal
would not take the view whinh would upset the judgment
delivered by the nourt belowe However, the appellate nourt has
a power to review the evidenne if it is of the view that the
viewarrived at by the nourt below is perverse and the nourt
has nommitted a manifest error of law and ignored the material
evidenne on renorde A duty is nast upon the appellate nourt,
in sunh nirnumstannes, to reappreniate the evidenne to arrive
at a just denision on the basis of material planed on renord to
find out whether any of the annused is nonnented with
nommission of the nrime he is nharged withe"
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In the present case, the trial Court has rightly appreciated the
evidence laid by the prosecution in the proper perspective. The trial
Court has rightly observed that there is no evidence on record to
establish the alleged criminal conspiracy hatched by Accused No. 1 to
eliminate the Informant. Therefore, the appeal preferred by the State
against acquittal of Accused Nos. 2 to 3 and 6 to 8 has no merit and
there is no need to upset the decision of the trial Court.
20. As far as the incident is concerned, the Informant had
categorically deposes that on 20th January, 1999, he had been to Mira
Road, East to celebrate Eid along with his friends namely Surendra
Tiwari (PW-2) and Ajit Pathare to the house of Mujafar Hussain. He
celebrated Eid along with above two persons and returned to
Bhayander. The Informant further deposes that he reached Bhayander
Station at about 10:40, he along with Tiwari (PW-2) went to his shop
namely "Om Furniture Works" situated at Indra Market. He had
parked his scooter bearing No.BLK-1645 behind his shop. He used to
park his scooter on the said place regularly. The Informant tried to
start the scooter, but it could not be started, hence, he realized that
somebody must have removed the plug wire. He opened the right
side panal of the scooter to fnd out the fault. At that time, he saw one
person aged between 25 to 30 year standing nearby, him. He thought
that the said person wanted to urinate there, hence, he inquired as to
why he was urinating there, but, the said person removed chopper
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from his pant and rushed towards the Informant with intent to assault
him. The said person followed by fve other persons, one after
another. They rushed towards him with intent to assault him. The
Informant further deposes that out of the said persons, three persons
encircled him and other three encircled his friend Tiwari (PW-2). The
said persons tried to laid the Informant and Tawari on the ground. The
frst person, who was holding the chopper and the other fve persons
were holding iron pipe. The frst person removed the chopper from his
waist and all started assaulting him. He (Informant) was assaulted on
the neck, backside of head as well as on the forehead and right thigh
near the private part. At the time of assault, the assailants said that
they will not allowed him to attend the High Court and they will kill him.
He further deposes that Tiwari escaped from the said place of incident
and went towards the road and raised shout for help. Thereafter, the
accused ran away from the spot. The Informant identifed Accused
No. 4 as the person, who assaulted him by chopper. He also deposes
that Accused No. 4 had worn white shirt and Accused No. 5 had worn
red shirt, at the time of assault. He further deposes that there were
dim lights, hence, he could not identify all the assailants.
21. The Informant has categorically stated that, there were lights
but it was dim in nature. The said fact is not mentioned in the FIR. The
Informant has categorically admitted that he had stated the said fact to
the police, but it was not recorded. He could not give any explanation
for the same. So, the defence has proved the said omission. Thus,
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the evidence of the Informant on the point of availability of lights on the
spot is required to be ignored. On this point, the evidence of Tiwari is
crucial. According to him, he returned to the shop of the Informant at
about 10:30 p.m., the Informant tried to start his scooter, but there was
some problem in the plug wire, therefore, he saw the plug wire, at that
time, two persons came there and went near the Informant. The
Informant inquired with them as to why they came there. Thereafter,
one person removed chopper and other had given dash to him due to
which, he fell down. Mr. Tiwari (PW-2) cannot recognize the said two
persons and cannot say whether anybody amongst the accused
present in the Court were the assailants. He further deposes that he
had identifed three persons in TI parade as assailants, but he could
not remember the assailants as there was darkness. The witness
Tiwari did not mention about the source of light at the spot. On the
contrary he said that the incident took place in the darkness, therefore,
he could not see the accused properly. On this point, one has to
perused the scene of ofence panchanama, which was prepared on
21st January, 1999. It is deposed by the Investigating Ofcer that after
recording the FIR and statement of Tiwari, he rushed to the spot. The
scene of ofence was shown by Tiwari. In the second last para of the
pachanama (Exhibit 84) the scene of ofence is described as under:
i) Towards east, road runs north-south towards railway
station.
ii) Towards west, towards south and towards north salt pan.
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On perusal of the said description of the spot, it can be said that there
is no possibility of any electric pole on western, southern and northern
side of this spot. The scene of ofence is shown to be behind the shop
of the Informant. The shop was facing towards eastern side that is
towards the road. So it can be said that there was no provision of
electricity behind the shop. On scrutiny of scene of ofence
panchanama it appears that, there is no mention of source of light at
the place of incident. Even it is not mentioned that road, which passes
from eastern side had any street light. So it can be said that the
incident had taken place in darkness.
22. The evidence of the Informant is read as it is, it can be said that
he has not explained about the source of light at the scene of ofence.
According to him, two persons came near him and other persons
followed them. In the FIR it is mentioned that he was checking his
scooter, at that time, two persons came near him and two persons
followed them. It is further mentioned in the FIR that one person was
standing nearby him. He thought that he was urinating, hence, he
asked him as to why he was urinating there. Thereafter, the said
person removed the chopper and rushed towards the him. The said
portion is denied by the Informant in his cross-examination. According
to him, he did not state the above facts before the Investigating
Ofcer. On the basis of the said omissions, the learned Counsel for
Accused No. 4 submits that the Informant has improved his story that
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one person came near him and tried to assault him. In fact two
persons had rushed towards him and one of them assaulted him by
the chopper. The said story is not substantiated by the Informant.
Therefore, there is no clinching evidence against Accused No. 4, that
he was the person, who frst assaulted the Informant. It is true that the
Informant alleged in the FIR that two persons came near him and one
of them assaulted him by chopper, but in the evidence he deposes
that initially one person came near him and he asked him explanation
as to why he came there. Thereafter, the said person removed
chopper and assaulted the Informant. Therefore, there is serious
doubt regarding identity of the person, who assaulted frst to the
Informant.
23. Learned Counsel for Accused No. 4 also submits that there was
darkness at the spot. The Informant has categorically admitted that,
after frst blow, he slightly fumbled. He also admitted that, after the frst
blow, rest of the accused also assaulted him. On the basis of the said
evidence, the learned Counsel for Accused No. 4 submits that due to
insufcient light and sudden assault on the Informant, he had no
opportunity to see the assailants properly. Therefore, the evidence of
the Informant on the point of identity is unbelievable. It is true that the
Informant has admitted that after the frst blow he was frightened and
thereafter the other accused persons assaulted him and there was no
sufcient light at the spot of incident. Therefore, it appears that the
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Informant as well as eye witness Tiwari had no sufcient opportunity to
observe the features of the assailants. We must mention here that the
Informant has not described the facial features of the assailants in his
evidence. No doubt that in the FIR he has described the frst assailant
as having fair complexion, round face, having medium built with short
hair but the said description is not deposed by the Informant in his
evidence. In fact, the Informant has not given description of any of his
assailants in the evidence. Therefore, the evidence of the Informant
regarding the identity of the assailants is doubtful.
24. The Informant has categorically identifed Accused No. 4 as the
frst assailant. He had also identifed Accused No. 5, but his
description was not given in the FIR or in the evidence by the
Informant. Admittedly, the Informant was called for TI parade by Mr.
Bharat Hase (PW-13)- Executive Magistrate. According to the
Informant, he was called at Thane jail for TI parade, wherein, he
identifed Accused Nos. 3, 4, 5, 6 and 7, but in the Court, he identifed
Accused Nos. 4 and 5. On this point, the evidence of Executive
Magistrate is crucial. According to him he received letter from
investigating Ofcer in C. R. No. 7 of 1999 and he was asked to hold
TI parade of six accused. Accordingly, he arranged TI parade on 13 th
February, 1999. He had summoned the Informant and Tiwari (PW-2),
but the Informant wrote a letter to Investigating Ofcer and expressed
his inability to attend the TI Parade. Accordingly, the Informant
remained absent, but Mr. Tiwari (PW-2) attended the TI parade. The
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Executive Magistrate deposes that he had called 30 dummy
witnesses. He asked dummy witnesses to stand in three rows in the
varanda of jail. The accused were asked to take seat position in the
said row. The Executive Magistrate further deposes that witness
Tiwari was called for TI parade. He identifed Alankar Talekar
(Accused No. 4) and Manoj Sawant (Accused No. 7) but Mr. Tiwari
(PW-2) has not identifed any of the accused in the Court.
25. The Executive Magistrate, Mr. Hase deposes that he arranged
the TI parade on 5th March 1999 for the Informant. On 5 th March,
1999, the Informant came to jail. The Executive Magistrate called
thirty dummy witnesses having similarity in complexion, height, ages
and colour with the accused persons. He arranged TI parade in the
varandah of the jail. The dummy witnesses were standing in the row.
Accordingly, accused took their position in the row along with the
dummy witnesses. The Informant was called. He was asked to
identify the accused. Accordingly, he identifed Accused Nos. 3, 4, 5,
6 and 7. In the cross examination Mr. Hase has admitted that he held
TI parade for identifcation of six accused persons. He admitted that
there are directions to hold separate TI parade for two accused
persons at a time, but he admitted that he arranged TI parade in three
rows namely, ABC and asked the witnesses to identify the accused
persons. The witness admitted that he knew that parade should be
held for two accused persons at a time. He held it for six accused
R. V. Patil 21 of 33 1. cr.apeal.790.2001 a.w cr. apeal.554.2001.doc
persons. In view of the said evidence, it can be said that the
Executive Magistrate has not followed the instructions given in the
Criminal Manual. He explained that for convenience, he arranged TI
parade for six accused persons, which is not permissible at all.
26. On going through the memorandum panchanama it appears
that the description of dummy witnesses is not given in the
memorandum. It appears that the dummy witnesses were supplied by
the jailer except the words of the Executive Magistrate, there is no
sufcient evidence on record to establish that the dummy witnesses
were having similarities with the accused persons in respect of
complexion, age, height, therefore, prosecution has not proved the TI
parade in the letter and spirit of law. We have already observed that
the Informant had not given proper description of the assailants in the
FIR and in the evidence. He had identifed only one person namely
Accused No. 4 in the Court. We have already observed that the
Informant as well as alleged eye witness Tiwari had no sufcient
opportunity to observe the features of the assailants due to darkness
at the place of incident. Similarly, the assault was sudden, therefore,
there is possibility that the Informant and witness Tiwari could not see
the assailants properly and the said fact is established from the
evidence of Tiwari (PW-2). Thus, in our opinion prosecution has failed
to establish the identity of Accused No. 4 beyond the shadow of
reasonable doubt.
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27. The prosecution has tried to prove the nexus between Accused
No. 4 and crime with the help of memorandum and seizure
panchanama of weapon namely the chopper. Investigating Ofcer has
deposed that on 1st February, 1999, Accused No. 4 came to be
arrested. On 2nd February, 1999, Accused No. 4 made voluntary
statement and showed his willingness to produce the weapon of
assault. Accordingly, police party and panch witnesses went by jeep
near Rajesh Chikan Shop. The Accused No. 4 produced chopper
from the bushes, which was seized under panchanama (Exhibit- 126).
28. To substantiate the evidence of Investigating Ofcer, the
prosecution has relied on the evidence of panch witnesses:
(i) Mr. Pramod A. Bhalerao (PW-3).
(ii) Mr. Namdeo Wadekar (PW-4).
The panch witness Mr. Pramod Bhalerao did not support the
prosecution. He deposed that on 2 nd February, 1999, he was called at
Bhayander Police Station, where he was asked to sign the document,
accordingly, he signed the document. He did not see Accused No. 4.
He deposed that, he never accompanied Accused No.4. Thus, he did
not support the case of prosecution but he was not cross-examined by
the State. So the evidence of Mr. Pramod Bhalerao is not helpful to the
prosecution to prove the memorandum of the seizure panchanama of
the chopper.
29. Other panch witness Mr. Namdeo Wadekar (PW-4) deposes
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that on 2nd February, 1999, he along with Mr. Bhalerao another panch
witness were called at Bhayander police station. He further deposes
that the police pointed out weapon and disclosed him that the said
weapon was found near Custom Chawl, accordingly, panchanama
was drawn. Though the witness Mr. Namdeo Wadekar had not
supported the case of prosecution, still he was not cross-examined by
the prosecution. But subsequently, on 23 rd April, 2001, the
prosecution recalled witness Mr. Namdeo Wadekar for further
examination. Witness Mr. Namdeo Wadekar was re-examined,
wherein, he has supported the case of prosecution. He deposed that
on 2nd February, 1999, he was called at police station. He further
deposes that Mr. Bhalerao (PW-3) was also called as panch witness.
Both of them went to police station. Accused No. 4 was present along
with police writer. Accused No. 4 informed the police about weapon.
Accordingly, the police recorded information given by the Accused No.
4. He signed the said memorandum panchanama (Exhibit-93). He
further deposed that he along with other panch, accused and police
party went by jeep. The jeep was taken to the place near Rajesh
Chikan Shop, as per the say of Accused No. 4. Accused No. 4
alighted from the jeep and proceeded towards Custom Chawl. Police
and other panch witnesses followed him. He produced chopper,
which was seized by the police under the panchanama (Exhbit-126).
In the cross-examination he admitted that he signed the memorandum
as well as the seizure panchanama at police station. In the cross-
R. V. Patil 24 of 33 1. cr.apeal.790.2001 a.w cr. apeal.554.2001.doc
examination the panch witness has admitted that the accused was
handcufed when his statement was recorded. The said fact create
doubt about the voluntariness of the alleged statement.
30. In the cross examination, the witness Mr. Namdeo Wadekar
was repeatedly asked question namely that on earlier occasion he had
stated that police had pointed out weapon and informed that it was
found in the Custom Chawl and now he had stated something else,
whether earlier statement was true or statement given subsequently
was true. The witness could not answer the said question and kept
silence. On the basis of the said evidence, learned Counsel for
Accused No.4 submits that the evidence of witness Mr. Namdeo
Wadekar should not be believe, because he gave two versions of the
recovery of weapon at frst blush he said that police pointed out
weapon and informed him that the weapon was found in the Custom
Chawl. Subsequently, he deposed that the Accused No. 4 gave
statement and took police party to the Custom Chawl and produced
weapon. In panchanama, it is simply mentioned that accused gave
statement, accordingly, panchanama was prepared, but the content of
alleged voluntary statement is not mentioned in the memorandum
panchanama. Similarly, panch witness also did not give exact
statement alleged to have been made by Accused No. 4. Therefore,
the memorandum and seizure panchanama itself is inadmissible as
there is no specifc statement attributed to Accused No. 4. Similarly,
in the seizure panchanama it is mentioned that Accused No. 4 has
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produced the chopper from the bushes, situated in front of the Custom
Chawl. But the evidence of Mr. Namdeo Wadekar (PW-4) is
completely silent on the point of place of seizure. He simply stated
that accused took police party to the Custom Chawl and pointed out
the weapon to the police. There is no whisper in the evidence of PW-4
that accused took out chopper from the bushes and produced before
the police.
31. It appears that the seizure of weapon was from open place, so
there should have been the evidence of panch witness that the
weapon was concealed in the bushes and it was produced by the
accused. But, no such evidence is laid by the prosecution. Therefore,
the evidence of Mr. Namdeo Wadekar (PW-4) is not helpful to the
prosecution case to prove the memorandum as well as seizure
panchanama. We must mention here that Mr. Pramod Bhalearo (PW-
3) and Mr. Namdeo Wadekar (PW-4) did not support the prosecution
case, but they were not cross-examined by the prosecution. But it
appears that the prosecution has re-examined Mr. Namdeo Wadekar
(PW-4) after a period of four months, wherein, Mr. Wadekar simply
stated that, accused informed that he will produce the weapon, but
verbatim statement of the accused is not mentioned in the
panchanama as well as in the evidence of Mr. Wadekar (PW-4). The
witness was specifcally asked, whether his earlier evidence is true or
subsequent evidence is true, but he did not answer the said question.
Therefore, we are not inclined to believe the evidence of Mr. Namdeo
R. V. Patil 26 of 33 1. cr.apeal.790.2001 a.w cr. apeal.554.2001.doc
Wadekar (PW-4) on the point of memorandum statement and the
recovery of weapon at the instance of Accused No. 4, in pursuance
thereof. The prosecution has failed to establish the nexus between
Accused No. 4 and the weapon.
32. It is the case of the prosecution that Accused No. 4 made a
voluntary statement that he had accepted Rs.10,000/- for killing the
Informant. He shown his readiness and willingness to produce
Rs.3,000/- which he had given to his father. Accordingly, Accused
No. 4 took police party to his house and his father Nitin Talekar
produced cash amount of Rs. 3,000/-, which was seized under
panchanama. For proving the said panchanama, the prosecution has
not examined the panch witnesses. The said panchanama was
proved by Investigating Ofcer. Even if the memorandum
panchanama is read as it is, it is simply mentioned that Accused No. 4
had accepted Rs.10,000/- for killing the Informant but he had not
disclosed as to who paid him the said amount. As the memorandum
and seizure panchanama is not proved by the prosecution through the
independent witness, therefore, the prosecution has not proved nexus
between the seized amount and crime.
33. Eye witness Tiwari deposes that, after the incident, he took the
Informant to the Nakoda Hospital. To prove the injury, the prosecution
has relied on the evidence of Dr. Vimalkumar Jain (PW-8), he deposes
that since 1989 he is running dispensary. On 20 th January, 1999,
R. V. Patil 27 of 33 1. cr.apeal.790.2001 a.w cr. apeal.554.2001.doc
Milan Mhatre was brought by four persons to his dispensary. There
was profused bleeding from his skull injury. He was in state of shock.
He had sustained bleeding injuries, after frst aid, the wounds were
sutured. There was serious wound at thigh which was treated after
general anasthetia. He deposes that there were eight wounds on the
frontal to occipital region, two wounds were on the frontal region in
longitute to the direction. Three wounds were on fronto-parietal region
and three wounds on the posterious side. All were measuring to three
to fve and half inches, exposing to the bone. There was sharp wound
at the medial, upper aspect of thigh which was two and half - three
inches in depth. That was punctured wound. He gave treatment to
Mr. Mhatre, thereafter, issued medical certifcate (Exhibit-148). Dr.
Vimalkumar Jain (PW-8) further deposes that Mr. Surendra Tiwari
(PW-2) also sustained one or two small wounds, which were simple in
nature. He was admitted for observation for a day. In the cross-
examination, witness has admitted that the Informant did not state the
history of assault. On going through the medical certifcate, the
Medical Ofcer (PW-8) has simply noted down the injuries, but the
cause of injury namely the history of injury is not mentioned in the
certifcate. It appears from the evidence of Dr. Vimalkumar Jain (PW-
8) that the Informant was brought by four persons including Mr. Tiwari
(PW-2), he had sustained only two injuries, which were minor in
nature. The Medical Ofcer has not described the said injuries.
Therefore, it was expected from Mr. Tiwari (PW-2) to explain, as to
R. V. Patil 28 of 33 1. cr.apeal.790.2001 a.w cr. apeal.554.2001.doc
how and in what manner, the Informant and he himself sustained
injuries. Even it was a duty of the Medical Ofcer to note down the
history of injuries, but he did not inquired with either the Informant or
the Mr. Tiwari, as to how they sustained injuries. The Informant and
Mr. Tiwari categorically deposed that there was assault on them by six
unknown persons. The evidence of Medical Ofcer establishes that
the Informant and witness had sustained injuries in the night of 20 th
January, 1999. The prosecution has proved the injuries sustained the
Informant. So it can be said that in the night of 20 th January, 1999, the
Informant and witness Tiwari were assaulted by the unknown persons.
34. To prove the arrest of Accused No. 3, the prosecution has relied
on the evidence of Mr. Vaizir Hussain Shaikh (PW-11). According to
him, in the year 1999, he was attached to Mira Road Police Station.
He was directed by PI, Mira Road Police Station to visit Village
Ghoshila, Distrcit- Varanashi, Uttar Pradesh to arrest Accused No. 3
Pintya @ Vivek. Accordingly, he went to village Ghoshila and arrested
Accused No. 3. He prepared arrest panchanama dated 28 th January,
1999 (Exhibit-156). He produced Accused No. 1 before the
Investigating Ofcer- Pandurang Niphade. He further deposes that
Accused No. 3 made statement that he had kept money in wooden
cupboard in his house. Accordingly, the memorandum panchanama
(Exhibit-156) was prepared. Thereafter, Accused No. 3 took the
Investigating Ofcer to his house and produced 49 Government
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Currency notes of 100 denomination, which were seized under the
panchanama. He further deposes that Accused No. 3 had also made
statement that he had kept weapon near ticket window of Bhayander
Railway Station. He searched the said place but nothing was found.
He admits that he did not record the statement of inmates of the
house, from where he seized cash amount. He also admits that arrest
panchanama of Accused No. 3 is not produced on record, therefore,
he cannot say at what time he arrested Accused No. 3. He also
admits that he has no documentary evidence to show that he had
taken accused in custody on 26 th January, 1999. From the above
evidence it can be said that the witness Vaizir Shaikh has not
produced on record the diary entry showing his visit to Varanasi for
arresting Accused No. 3. Similarly, he has not produced on record
arrest panchanama. Therefore, the prosecution has failed to establish
the arrest of Accused No. 3 at Varanasi. As far as the recovery of
money is concerned, there is no nexus between seized money and the
crime. It is not the case of prosecution that Accused No. 3 had made
statement that he had received money from co-accused to eliminate
the Informant. There is no reference in the panchanama from whom
Accused No. 3 had received the money. Therefore, the seizure of
money has also no legal signifcance.
35. Accused No. 8 was arrested as a conspirator, but the Informant
has deposed that Accused Nos. 4 to 8 were his assailants. It is also
deposed that after the assault, Accused Nos. 4 to 8 ran away from the
R. V. Patil 30 of 33 1. cr.apeal.790.2001 a.w cr. apeal.554.2001.doc
spot. We must mention here that the Informant was examined twice in
this case. The frst prosecutor examined him and his evidence was
concluded on 9th January, 2001. Thereafter, the Special Prosecutor
was appointed to conduct the trial, who made application for recalling
the Informant. The said application was allowed. In the evidence,
the Informant has stated that Accused No. 8 was not amongst the
assailants. So it can be said that the Informant has changed his
version. Initially, he has stated that Accused Nos. 4 to 8 assaulted
him. Thereafter, he said that Accused No. 8 was not amongst his
assailants. It is pertinent to note that Accused No. 8 was a laundry
man. The case of prosecution was that, Accused Nos.4 and 5 went to
the shop of Accused No. 8 and changed their clothes. They asked
Accused No. 8 to wash the clothes. The said clothes were produced
by Accused No. 8, which were seized under panchanama. So, it was
the case of prosecution that Accused No. 8 helped Accused Nos. 4
and 5 to conceal the evidence. But the Informant initially alleged that
Accused No. 8 was his assailant but subsequently he gave clean chit
to him. The prosecution has not laid any evidence to prove the
involvement of Accused No. 8 in the crime. As far as Accused No. 3 is
concerned, the Informant has not whispered anything about him. He
simply deposed that Accused Nos. 4 to 8 were his assailants, but the
Informant was recalled by Special Prosecutor, at that time, he
identifed Accused No. 3 as his assailant, but he has not attributed any
act of overtact to accused No. 3.
R. V. Patil 31 of 33 1. cr.apeal.790.2001 a.w cr. apeal.554.2001.doc
36. The prosecution has examined Mr. Bhaskar A. Pande (PW-5),
Deputy Secretary in Urban Development Department, at Mantralaya,
Mumbai. He produced on record notice issued by the Government of
Maharashtra to Mira Bhayander Municipal Council, which was signed
by him. The said notice was issued in pursuance of the order passed
by the High Court in PIL fled by the Informant. The said notice is not
disputed by the defence. It appears that Mr. Bhaskar Pande (PW-5)
has just completed formality to issue notice to the Mira Bhayander
Municipal Council.
35. The prosecution has examined Mr. Sanjay S. Degaonkar (PW-
6). He deposed that in the year 1999, he was working in Mira
Bhayander Municipal Corporation. He produced on record copy of an
order passed by the Ministry of State Urban Development
Department, Government of Maharashtra, whereby the Mira
Bhayander Municipal Corporation was dissolved. The said fact is also
not disputed by the defence. Therefore, the evidence of Mr. Sanjay
Degaonkar (PW-6) is formal in the nature.
37. The prosecution is also relied on the evidence of Dr. Tejaswini
U. Bharat (PW-7) to prove the physical condition of Accused No. 1.
According to Dr. Tejaswini Bharat, on 15 th February, 1999, she was
working as C.M.O, Civil Hospital, Thane. On that date, Accused No. 1
had been to Thane Civil Hospital. Accused No. 1 had complained of
chest pain, pain in stomach and severe giddyness. She examined him
R. V. Patil 32 of 33 1. cr.apeal.790.2001 a.w cr. apeal.554.2001.doc
and issued medical certifcate (Exhibit-145). The said medical
certifcate is also not disputed, so it can be said that on 15 th February,
1999, Accused No. 1 had severe giddyness and he had complained of
chest pain.
38. The prosecution has also examined Mr. Gopinath Narayan
Gharat (PW-10), who was working as Tahsildar of Konkan Bhavan
Commissioner's Ofce, New Mumbai. According to him the ofce has
issued letter dated 28th November, 1997 to Milan Mhatre (present
Informant) in response to his complaint. The said letter (Exhibit-154)
is produced on record by the witness. The said letter is also not
denied by the defence. By the said letter it is established that the
Informant had written several complaints to the Commissioner of
Konkan Bhavan, New Mumbai about alleged corrupt activities of
ofcers of Mira Bhayander Municipal Corporation.
39. To sum up it can be said that the prosecution has failed to prove
the conspiracy between Accused Nos. 1 and 2 on one hand and
Accused Nos. 3 to 8 on other hand. The trial Court has rightly
appreciated the evidence on record and came to the correct
conclusion that the prosecution has failed to prove the alleged
conspiracy hatched by Accused No. 1 to kill the Informant. The
prosecution has failed to establish the identity of Accused No. 4 as the
assailant beyond the shadow of reasonable doubt. The trail Court has
not properly appreciated the evidence of the Informant and eye
R. V. Patil 33 of 33 1. cr.apeal.790.2001 a.w cr. apeal.554.2001.doc
witness Tiwari on the point of identity of Accused No. 4. The trial
Court has wrongly held that the TI parade was properly held. The
prosecution has failed to establish the charge against Accused No. 4
beyond the shadow of reasonable doubt. Hence, we pass the
following order:
ORDER
i) The Appeal No. 790 of 2001 preferred by the State is hereby
dismissed.
ii) The Appeal No. 554 of 2001 preferred by Accused No.4- Ahya
@ Alankar Nitin Talekar, is hereby allowed.
iii) The order of conviction passed by the Sessions Court in
Session Case No. 294 of 1999 against Accused No. 4, is hereby
quashed and set aside.
iv) Accused No. 4- Ahya @ Alankar Nitin Talekar is hereby set at
liberty, if not required in any other crime. The bail bond executed by
Accused No. 4 is hereby cancelled.
v) Accused No. 4 is directed to furnish bail bond of Rs.15,000/-
with one surety in the like amount, within a period of four weeks from
the date of this judgment, as per Section 437-A of Cr.P.C.
vi) The fne amount paid by Accused No. 4, if any, be refunded to
him.
(SURENDRA P. TAVADE, J.) (S. S. SHINDE, J.)
