In the High Court of Judicature at Bombay Case No. Criminal Appeal No. 227 with Criminal Revision Application No. 418 of 1982 Equivalent Citation: 1997 (1) BomCR 362 Appellants The State of Maharashtra Respondent Joseph Mingel Koli And Ors. Decided on 1st August, 1996 Bench Mr. Justice Vishnu Sahai, and Mr. Justice S. Parkar
The respondents including Joseph Mingel and 11 others were acquitted by Additional Sessions Judge, Greater Bombay for the offences punishable under §§ 143, 144, 147, 148, 149, 450, and 395 of Indian Penal Code, 1860 respectively. Antaya Shetty was the proprietor of Maharashtra Lunch House located at Sewree Koliwada in Bombay. At the distance of 100 feet away from lunch house was a hotel named Vijay Café which was in the name of his wife.
A F.I.R. was lodged in the nearby police station by Antaya Shetty for the act of vandalism committed by Joseph and 11 others which resulted into serious injuries to Antaya and other workers of the café. The case came to Additional Sessions Judge of Greater Bombay who acquitted all the respondents on the ground that petitioners were not able to establish identity of the accused.
So, aggrieved by the impugned judgment of the court, State of Maharashtra filed an appeal Section 378(1) of Cr.P.C. to the High Court of Judicature at Bombay.
Statue and provisions involved:
- Section 143, 144, 147, 148, 149, 395, and 450 of Indian Penal Code, 1860, respectively
- Section 161, 313, and 378 of Criminal Procedure Code, 1973
1. Whether the prosecution proves that on 23-4-1978 at Vijay Cafe, Sewree Koliwada, Bombay, there was an unlawful assembly of some persons, the common object of which was to commit the offences of rioting, causing hurt, dacoity, house breaking, house trespass, mischief by fire with intent to destroy Vijay Cafe?
2. Whether the prosecution proves that, the members of the assembly were armed with deadly weapons, namely stones, bottles and other weapons, lighted cloth balls, fire crackers?
3. Whether the prosecution proves that the accused were the members of the said unlawful assembly and if not, whether there were some of them and if so, whom?
On 23-4-1978 i.e. on Sunday Antaya Shetty came to Vijay Café from rear side. Since it was Sunday, the café was closed. After some time he saw through the window of the counter room Joseph and 11 others were standing on the road abusing Antaya and warning him to come out. On the refusal by Antaya to come out Joseph ordered his mates to “stone the hotel, break it and take him out”. Thereafter the entire group started throwing stones, soda bottles, lighted crackers, and lighted cloth balls inside kitchen.
The repercussions of this act of vandalism fire broke out in entire café and caused serious injuries to Antaya, Kumar Shetty the manager of café, some waiters namely Ramesh Sapalikar, Krishna Gauda, and Baburao Salunke.
The F.I.R. of this unlawful act was lodged by Antaya Shetty on 1:00 am of the very next day. The case was committed to the Sessions Court in the usual manner, but the respondents were acquitted on the ground that petitioners were not able to establish the identity of accused.
Contentions of both the parties
Counsel on behalf of petitioners: Mr. R.P. Behere, Additional Public Prosecutor of Maharashtra
It was strongly contended by the petitioners that as per the investigation conducted by Abdul Karim Ibrahim Shaikh, the investigating officer it is clear that respondent Joseph was feeling that Antaya was trying to get him externed and it is clear that the evidence to eye witness Antaya Shetty (P.W.1), and Kumar Shetty (P.W.3) fixes the identity of respondents beyond all reasonable doubts. Also, the fact that gist of acquittal in the lower court was that petitioners were not able to establish grounds of identity and the High Court doesn’t have any kind of doubt regarding maintenance of identity, so the impugned order must be set aside.
It was also argued by the petitioners that the unlawful assembly on the road outside the café was having deadly weapons like soda bottles, lighted crackers and cloth balls, which in itself is a prove that respondents intentionally came to kill Antaya as he was having feeling of getting externed because of Antaya.
Counsel on behalf of respondent – Mr. Raja Thakre
It was pleaded by the respondents that an unusual delay was made in lodging of F.I.R. and the time was enough for Antaya to establish frivolous evidences against Joseph and others. So, the appeal should be dismissed as the trial court found respondents not guilty on the ground that petitioner has failed to establish the identity of the accused.
They also contended that Antaya is falsely implicating them since respondents were members of koli community i.e. fisherman and they wanted to fetch water which it was not made available at his café so they stopped going to his café, and this provoked him file a false F.I.R. against them.
The court held that on prosecution of two eye witness i.e. Antaya and Kumar Shetty it can be found that Joseph and 11 other respondents were present with deadly weapons in front of Vijay Café and they were trying every way possible to fetch Antaya out and to assault him. The respondents were found guilty under Sections 143, 147, 149, 324, and 436 of IPC for the act of vandalism and a fine of Rs. 49,000 and in case of default they shall be taken into custody for the offence.
Concepts highlighted in the Case
A delay in F.I.R. cannot be a ground for dismissal of case, as it depends upon the facts of the case and in this particular case Antaya was immediately taken to hospital for treatment.
Also, for invoking ground of theft there must be clear evidences to prove the same. For conviction under Section 450 i.e. house trespass, it must be established that person violating this right should be inside the property of the owner or person filling complaint for it.
It can be concluded that high court has full power to re-examine the witness and evidence on record as it may deem fit and it can also set aside the impugned judgment of trial court if the order is against the principles of law and natural justice. Also, the punishment for an offence depends upon the age and other circumstances of offender. In this particular case Joseph was already dead and many other respondents were over the age of 70, so a fine of like amount was imposed by the Honorable Court.
Edited by Pragash Boopal
Approved & Published – Sakshi Raje