Bombay High Court
Mohammad Iqbal Mangu Ismail vs The State Of Maharashtra on 12 January, 2024
Author: M. S. Karnik
Bench: M. S. Karnik
2024:BHC-AS:2671
PMB 903.apeal.385-97.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.385 OF 1997
MOHAMMED IQBAL MANGU ISMAIL ANSARI ..APPELLANT
VS.
THE STATE OF MAHARASHTRA ..RESPONDENT
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Adv. Megha Bajoria for the appellant.
Mr. A. R. Patil, APP for the State.
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CORAM : M. S. KARNIK, J.
DATE : JANUARY 12, 2024
ORAL JUDGMENT :
1. The challenge in this Criminal Appeal is to the order of
conviction rendered by the 1st Additional Principal Judge and
Additional Sessions Judge, Greater Mumbai in Sessions
Case No.304 of 1995 convicting the appellant Mohammed
Iqbal Magnu Ismail Ansari for the offence punishable under
Sections 367 read with 34 of the Indian Penal Code
(hereafter 'IPC' for short), thereby sentencing him to suffer
rigorous imprisonment for two years and to pay fine of
Rs.1,000, in default of payment of fine, to undergo two
months rigorous imprisonment. The appellant is also
convicted for the offence punishable under Sections 393
PMB 903.apeal.385-97.doc
read with 34 of the IPC and sentenced to undergo two years
rigorous imprisonment and to pay fine of Rs.1,000/-, in
default of payment of fine, to undergo further rigorous
imprisonment for two months. The appellant was found not
guilty of the other charges.
2. The prosecution case in brief is thus :-
PW-1 is the proprietor of a jewellery shop. On
08.03.1991 at about 10.45 p.m., PW-1 left his shop to meet
his acquaintance. As he came out of peru compound, two
persons (accused) stopped PW-1. One of them was holding
a knife in his hand. He pointed out the knife to PW-1 and
asked him not shout otherwise he will be killed. The other
accused put his hand on PW-1's shoulder and said "Saheb
Ke Pass Chalo". A taxi was standing near the spot. The taxi
driver was occupying the driver's seat and another person-
accused No.1 (present appellant) was sitting on the front
seat next to the taxi driver. The accused who threatened
PW-1 asked him to sit on the rear seat in the middle. The
two accused sat on the either side of PW-1. The accused
persons who were sitting on the rear seat uttered the words
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"Chalo". The taxi headed in the direction of Bharat Mata
Cinema. The accused sitting on the rear seat asked PW-1 as
to how much money he was carrying. They asked him to
take out the money. PW-1 kept quite. As the taxi proceeded
ahead one police jeep intercepted it. The person (appellant)
sitting on the front seat as well as the two accused who
were sitting next to the PW-1 on the rear seat started
running away. The taxi driver remained seated in the taxi.
The appellant was caught by the police with the help of the
public. Thereafter, PW-1 and the appellant were taken to
the police station. The FIR came to be registered. The
appellant was searched in presence of panchas. One knife
was found on his person. PW-1 identified the appellant in
the Court.
3. PW-2 who is examined at Exhibit 8 is the wireless
operator of the police vehicle which intercepted the taxi.
PW-2 deposed that he noticed the activities of the
passengers sitting on the rear seat suspicious and therefore
the police party decided to intercept the taxi. The appellant
who was sitting in front started running away when the taxi
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was intercepted by the police. PW-2 says that even the
accused sitting on the rear seat ran away. PW-2 with the
help of the public nabbed the appellant who is the accused
No.1.
4. So far as PW-4 is concerned, he was examined at
Exhibit 11. PW-4 is the Inspector of the Traffic Department
who was also in the police vehicle. PW-2 informed PW-4
about the activities of the accused in the taxi which PW-2
found to be suspicious. The evidence of PW-3 is not relevant
as he is a panch witness in respect of the test identification
of the co-accused.
5. PW-5, examined at Exhibit 13 is the panch witness in
respect of the search of the person of the appellant at the
police station. PW-5 has turned hostile. In any case the trial
Court has returned a finding that the case against the
appellant about possession of knife at the time of attempt
to commit robbery or at the time of his search is not proved
beyond reasonable doubt and the accused cannot found
guilty of those offences. PW-6 examined at Exhibit 14 is a
Police Havildar, his evidence is not relevant. PW-7 examined
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at Exhibit 19 is the Investigating Officer.
6. Learned APP submitted that the appellant was
apprehended at the spot. It is submitted that the appellant
was in the taxi at the time when PW-1 was asked to sit on
the rear seat by the co-accused. It is submitted that the
appellant was carrying a knife. Learned APP further
submitted that when the police vehicle intercepted the taxi,
the appellant started running away. It is his submission that
the appellant's presence in the taxi, the conduct of running
away when the police vehicle intercepted the taxi and the
knife found on his person is sufficient to demonstrate that
the appellant is guilty of the alleged offence and hence the
conviction recorded by the trial Court be sustained. My
attention is invited by learned APP to the findings recorded
by the trial Court to submit that the appeal is without any
merit.
7. With the assistance of learned counsel for the
appellant and learned APP I have perused the paper book,
the depositions of the witnesses and the impugned order. I
have heard learned counsel for the appellant and learned
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APP and perused the materials on record.
8. The prosecution case against the appellant is mainly
based on the evidence of PW-1 - the complainant and that
of PW-2 - wireless operator of the police vehicle which
intercepted the taxi. A careful perusal of the evidence of
PW-1 would reveal that no overt act is attributed to the
appellant. PW-1 was forced to sit in the taxi by the co-
accused. It is the co-accused who threatened PW-1 at the
point of a knife. Nothing is seen from the evidence of PW-1
to indicate that there was any communication between the
co-accused who forced PW-1 to sit in the taxi by
threatening him and the appellant who was sitting in front
seat of the taxi. According to learned APP, the incriminating
circumstances against the applicant is (a) he was sitting on
the front seat of the taxi when PW-1 was forcibly made to
sit in the taxi by the co-accused and (b) that the appellant
tried to make good his escape when the police vehicle
intercepted the taxi. The learned APP was at pains to point
out that these circumstances are enough to sustain a
conviction against the appellant.
PMB 903.apeal.385-97.doc
9. Apart from this there is absolutely no material on
record to indicate that the co-accused shared a common
intention with the appellant to commit the aforesaid
offence. The Hon'ble Supreme Court in the case of
Gadadhar Chandra Vs. The State of West Bengal1, in
paragraph 9 has observed that the common intention
contemplated by Section 34 of IPC pre-supposes prior
concert. It requires meeting of minds. It requires a pre-
arranged plan before a man can be vicariously convicted for
the criminal act of another. The criminal act must have been
done in furtherance of the common intention of all the
accused. In a given case, the plan can be formed suddenly.
10. In the present case, the taxi driver has not been
examined. There is nothing on record to show that there
was any communication between two accused sitting on the
rear seat of the taxi and the appellant or for that matter
any other evidence to form an opinion that the co-accused
shared a common intention with the appellant. To convict
the appellant only on the basis of him sitting in the taxi on
the front seat coupled with his conduct of trying to run
1 Criminal Appeal No.1661 of 2009 dated 15.03.2022
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away when the police intercepted the taxi, will be highly
unsafe. In my opinion the evidence on record falls short in
proving the guilt of the appellant beyond reasonable doubt.
11. I have perused the judgment and order of the trial
Court. As indicated earlier, the trial Court has found that so
far as the case against the appellant about possession of
knife at the time of attempt to commit robbery or at the
time of his search is not proved beyond reasonable doubt
and hence the accused has not been found guilty of those
offences. However, the trial Court while holding that there is
sufficient evidence against the accused to hold the appellant
guilty for the offences punishable under Section 367 read
with 34 of the IPC has observed that there is every reason
to believe that he shared a common intention with the other
two accomplices of kidnapping PW-1 and putting him in fear
of death, attempted to rob him. The observation that when
the demand for money was made by other two persons who
were sitting besides the victim, the appellant played a role
of keeping a watch over the driver of the taxi is an inference
which is without any basis. For arriving at the conclusion
PMB 903.apeal.385-97.doc
that the appellant shared a common intention with the
other accused, in my opinion there is hardly any material to
indicate the existence of a prior concert or pre-arranged
plan. In the absence of any cogent materials against the
appellant, the impugned judgment and order dated
10/11.04.1997 of the 1st Additional Principal Judge and
Additional Sessions Judge, Greater Mumbai so far as the
appellant is concerned needs to be set aside. The appellant
is acquitted for the charges against him.
12. The Criminal Appeal is allowed in the above terms.
The fine amount if paid be refunded to the appellant.
13. I appreciate the able assistance rendered by Advocate
Megha Bajoria appearing on behalf of the appellant
appointed by the Legal Aid Services Authority.
(M. S. KARNIK, J.)
Signed by: Pradnya Bhogale
Designation: PA To Honourable Judge
Date: 29/01/2024 14:46:20
