FAIZALI SHAHEEN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellant in this case has appealed against the conviction by the learned Special Judge, Greater Bombay in Special Case No. 42, of 1990. It is unnecessary to refer to the several charges framed against the appellant by the trial Court except in passing to mention that the original charges came to be amended more than once, the last time being during the evidence of the complainant. The learned Special Judge at that stage added a 6th charge which virtually encompasses all the incidents that are the subject matter of the present prosecution. It appears that having regard to the peculiar nature of the facts and considering that the accused was not a public servant, that the learned Special Judge found it more appropriate to frame a composite charge under section 213 I. P. C. I am informed at the bar, as is evident from the record, that some of the witnesses were recalled pursuant to the amendment to the charge.

(2.) MRS. Shenoy, learned Counsel appearing on behalf of the appellant has not made any serious grievance with regard to this amendment, which in any event, was permissible in law, because she has seriously attacked the very basis of the conviction itself, though on the basis of submissions which to my mind were quite puerile.

(3.) THE facts of the present case are rather unusual and interesting. It is alleged that the present complainant Gulam Hussain was at the relevant time i. e. , between the period January 1979 and March, 1980 when the incident took place, facing a charge of murder along with one other accused before the Court of Sessions, Greater Bombay. We are not immediately concerned with the other accused in that case. According to the prosecution, the wife of the present appellant is alleged to have informed the Inspector of Police, Kherwadi Police Station, through her advocate that she was an eye-witness to the incident of murder that was the subject matter of the Sessions trial and that she is also alleged to have filed an affidavit to this effect before the police authorities. Pursuant to this, the police recorded her statement and it is alleged that she was one of the main witnesses on whom the prosecution evidence heavily rested. It is the prosecution case that the complainant had been released on bail by the High Court and that the present accused is alleged to have been instrumental in making an application before the High Court for cancellation of his bail. It is further alleged that the accused had gone to the extent of filing and affidavit before the High Court for purposes of getting the bail of the complainant cancelled. According to the complainant, the accused had represented that he is a man of considerable influence as also political clout and that he could materially assist in getting the complainant acquitted in the Sessions trial be seeing to it that his wife who was the most material and important witness would either not give evidence or would change her version. It is alleged that on the basis of this ploy and the threats to get the bail of the complainant cancelled, that the accused was extorting money from the complainant and that he is alleged to have extorted an amount of Rs. 500/- initially, followed by an instalment of Rs. 200/-, thereafter a substantial amount of Rs. 2,000/- and finally an amount of Rs. 200/- on 26th March 1980. It is alleged by the complainant that the accused was stepping up the pressure on him because the commencement of the Sessions trial was imminent and that the accused had demanded an amount of Rs. 20,000/- in consideration of which, the accused was to ensure that his wife was instrumental in scuttling the prosecution against the complainant and furthermore, that the Police Inspector Mangalji would also be taken care of. It is alleged that the complainant who could no longer tolerate this extortion and who could ill-afford to pay that substantial amount, finally approached the Anti-Corruption Department on 27-3-1980 and lodged a complaint, pursuant to which, the police arranged for a trap on the same afternoon. In the sum of Rs. 1,000/- to the accused at Oomez Hotel, Bandra and that an immediate panchanama was drawn up when the said amount was handed over. It is further alleged that the anthracene powder was seen on the hands of the accused as also on certain parts of his clothing immediately after the trap. The accused has denied the charges and has pointed out that the complainant is distantly known to him and that he has been wrongly implicated because of hostility in so far as even though the complainant had originally managed to get the police to exclude the evidence of the wife of the accused, that the accused had insisted on her statement being recorded and that he had also been instrumental in the matter of pointing out to the High Court that the complainants bail should be cancelled.