Rajjan @ Baggad Mishrilal Kuril vs The State Of Mah.Thr. Pso Nagpur on 7 February, 2019

[Cites 8, Cited by 0]

Bombay High Court

Rajjan @ Baggad Mishrilal Kuril vs The State Of Mah.Thr. Pso Nagpur on 7 February, 2019

Bench: V.M. Deshpande

Judgment

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR

CRIMINAL APPEAL NO.204 OF 2004
AND
CRIMINAL APPEAL NO.413 OF 2004

CRIMINAL APPEAL NO.204 OF 2004
Shambabu s/o Siddhagopal Suryawanshi,
Aged 33 years,
resident of Milan Chowk, Chankapur,
P.S.Khaperkheda, District : Nagpur. ..... Appellant.

:: VERSUS ::

The State of Maharashtra, through
P.S.O. Khaperkheda, District Nagpur. ..... Respondent.
================================
Shri Anil S.Mardikar, Senior Counsel with
Shri C.R.Thakur, Advocate for the Appellant.
Shri M.K.Pathan, Additional Public Prosecutor
for the Respondent/State.
================================

CRIMINAL APPEAL NO.413 OF 2004
Rajjan @ Baggad s/o Mishrilal Kuril,
Aged 21 years,
R/o : Digruwa, P.S.Jafarganj,
District : Fatehpur (U.P.). ..... Appellant.

:: VERSUS ::

The State of Maharashtra, through

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P.S.O.Khaperkheda, District Nagpur. ..... Respondent.
================================
Shri R.M.Daga, Counsel for the Appellant.
Shri M.K.Pathan, Additional Public Prosecutor
for the Respondent/State.
================================

CORAM : V.M. DESHPANDE, J.
DATE : FEBRUARY 7, 2019.

COMMON JUDGMENT

1. These two appeals are heard together and are

disposed of by this common judgment since both the appeals

arise out of judgment and order of conviction dated 24.3.2004

passed by 1st Ad hoc Additional Sessions Judge, Nagpur in

Sessions Trial No.572/2002.

2. By the impugned judgment and order of

conviction, the appellants in these appeals are convicted for

offence under Section 392 of the Indian Penal Code and

sentenced to suffer rigorous imprisonment for 5 years and to

pay a fine of rs.1000/- and in default of payment of the fine

amount to suffer rigorous imprisonment for 6 months.

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3. Criminal Appeal No.204/2004 is filed by

Shambabu s/o Siddhagopal Suryawanshi, the accused No.1.

Whereas, Criminal Appeal No.413/2004 is filed by Rajjan @

Baggad s/o Mishrilal Kuril, the accused No.2.

In this judgment, the appellants will be referred to

by their original positions in charge.

4. Accused No.1 Shambabu, is represented by learned

senior counsel Shri Anil S.Mardikar along with Advocates Shri

C.R.Thakur and Rishabh Khemuka. Accused No.2 Rajjan, is

presented by learned counsel Shri R.M.Daga. In both these

appeals, the State of Maharashtra is represented by learned

Additional Public Prosecutor Shri M.K.Pathan.

5. Facts giving rise to the present appeals can

conveniently be stated as under:

(A) Devprasad Himanshu Sengupta (PW7), firstly

went to Walni Outpost of Khaperkheda Police Station for

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narration of incident. However, he was asked to lodge a

report. Thereafter, he came to his house and then rang up to

Khaperkheda Police Station and informed police about

commission of robbery in his house.

(B) The telephonic information was received by

Assistant Police Inspector Rajesh Awdumbar Dudhalwar

(PW20) and accordingly he went to spot of incident. He went

to house of Smt.Shampa (PW2) (wife of Devprasad) and

recorded report of Smt.Shampa. Her oral report is at Exhibit

12. It appears that on the basis of the oral report (Exhibit 12),

a crime vide Crime No.44/2002 was registered at

Khaperkheda Police Station for offences under Section 392

read with Section 34 of the Indian Penal Code and under

Sections 3 and 25 of the Arms Act, 1959. The crime was

registered against 3 unknown persons. Printed First

Information Report is at Exhibit 23.

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Smt.Shampa recites that on 24.4.2002 at about 1:15 O'clock in

the noon, her husband Devprasad (PW7) went to village Bina

for attending a marriage and in the house she, her mother-in-

law Smt.Rama, and her two daughters, Jiya aged 12 years and

Bulbul aged 9 years, were present. Front door of her house

(quarter) was latched from inside. At 1:40 O'clock in the

noon, 3 persons entered the house by pushing the front door.

At that time, Smt.Shampa had taken her bath and stepped out

of bathroom. Those 3 persons were looking for something in

3 different rooms. When she made enquiry as to how they

entered the house and what they are looking for, at that time

a person, wearing a navy blue coloured full sleeves shirt and

faded blue coloured jeans and who was of dark complexion,

short heighted and slim and having beard and whose hair

were combed backward, inserted revolver in her mouth and

they took her to bedroom where Television Set was kept and

asked her to give cash, gold and silver available in the house

by threatening to kill all the persons present in the house. The

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oral report further recites that she told them that she was not

having locker keys as doctor (her husband) had taken the

same with him. Thereupon, they snatched gold ornaments

from her person. One person remained with her and two

persons took search of the bedroom in which the Television

Set was kept. That time, she took out cash from almirah

amounting to Rs.600/- and gave the said to them. Thereafter,

they extended threats to kill her two children and under the

fear she showed keys of almirah and, thereafter, they opened

the almirah and looted various articles. It is also stated in the

oral report that out of those 3 persons, one was of 6 feet tall,

fair complexion, and aged about 27 years; another was of dark

complexion and short having grown up beard; and third was

short and whose age must be 26 years. All of them were

talking in hindi language and they were in her house till 2:00

O'clock in the noon.

(D) Investigating Officer Rajesh Dudhalwar

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(PW20) prepared spot panchnama (Exhibit 10). Dr. Ashok

Madhavrao Ganjare (PW1) is one of panchas. As the

descriptions of the intruders were given, Investigating Officer

Rajesh Dudhalwar zeroed his suspicion on Shambabu, accused

No.1. He went to his house, collected photographs from his

house, and showed the said photographs to Smt.Shampa

(PW2). Thereupon, Smt.Shampa pointed out the accused in

the photograph as one of intruders. On 26.4.2002, the

Investigating Officer got information that Shambabu had gone

to his village Bhawara, District Hamirpur (U.P.). Therefore,

he went to the village Bhawara. However, Shambabu was not

present there.

On 25.5.2002, he came to know that both the

accused are arrested by Jaripatka Police Station. Accordingly,

he arrested the accused. He seized motorcycle of Shambabu,

accused No.1 under seizure panchnama (Exhibit 39).

During Police Custody Remand, Shambabu gave

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his disclosure statement that he sold the ornaments at Agra.

Accordingly, he was taken by the Investigating Officer to Agra.

Shambabu led the police party to a Goel Jewellers at

Sultanpura where Puranchand Vithalal Agrawal (PW12) was

present. Puranchand Agrawal told the Investigating Officer

that he had purchased the gold ornaments from Shambabu,

accused No.1. Puranchand told that he purchased gold bars

from Shambabu, accused No.1. Those gold bars were seized

in presence of panchas under seizure panchnama (Exhibit 30).

Shambabu, accused No.1 also led the police party

to Ramdas Jewellers where Ramdas Mulchand Agrawal

(PW13) was present. From his shop also, gold bars were

seized under seizure panchnama (Exhibit 32).

(E) Rajjan, accused No.2, gave discovery statement

pertaining to fact that where he concealed the revolver. The

admissible portion is at Exhibit 49 and Exhibit 50 is recovery

panchnama.

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(F) After completion of other usual investigation,

Investigation Officer Rajesh Dudhalwar (PW20) filed final

report in the Court of jurisdictional Magistrate.

(G) Learned Jurisdictional Magistrate in whose

Court the final report in Crime No.44/2002 was filed was

pertaining to offences under Section 392 read with Section 34

of the Indian Penal Code and under Sections 3 and 25 of the

Arms Act, 1959, found that the offences are exclusively Triable

by the Court of Sessions. Therefore, he committed the case to

the Court of Sessions.

Till filing of the chargesheet and committal, third

unknown accused was not traced. Therefore, after issuing

standing Non Bailable Warrant, charge was framed against

both the accused by learned 1st Ad hoc Additional Sessions

Judge, Nagpur for offences under Sections 392 and 397 read

with Section 34 of the Indian Penal Code and under Sections 3

and 25 of the Arms Act 1959.

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(H) In order to bring home the guilt of the accused

persons, the prosecution examined in all 20 witnesses and also

relied on various documents duly proved during course of the

Trial.

(I) After appreciation of the prosecution case,

learned Judge of the Court below acquitted both the accused

of offences under Section 397 of the Indian Penal Code and

under Sections 3 and 25 of the Arms Act, 1959, however,

convicted them for offence under Section 392 read with

Section 34 of the Indian Penal Code.

Hence, this appeal.

SUBMISSIONS

6. Learned senior counsel Shri Anil S.Mardikar for

the appellant in Criminal Appeal No.204 of 2004 strenuously

urged before me that the entire prosecution case revolves

around identification by Smt.Shampa (PW2) and her husband

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Devprasad (PW7) during the course of the investigation and

identification by them in the Court. It is his submission that if

identification by prosecution witnesses including the said two

witnesses is found to be unreliable or cannot be considered,

then there is no evidence connecting the present appellants for

offence under Section 392 of the Indian Penal Code. He relies

on 3 judgments of the Honourable Supreme Court in the cases

of:

(i) Mohanlal Gangaram Gehani vs. State of
Maharashtra, reported at (1982) 1 SCC 700;

(ii) Mohd.Abdul Hafeez vs. Sate of Andhra
Pradesh, reported at AIR 1983 SC 367; and

(iii) Ravindra alias Ravi Bansi Gohar vs. State of
Maharashtra, reported at AIR 1998 SC 3031.

Also, he relied on the procedure for holding

identification parades, as mentioned in the Criminal Manual.

He submitted that though the prosecution proved that there

took the robbery in the house of Smt.Shampa (PW2), the

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prosecution failed to prove beyond reasonable doubt that the

appellants are the culprits. He, therefore, prayed for upsetting

the judgment recording the conviction against the appellants.

7. Learned counsel Shri R.M.Daga for the appellant in

Criminal Appeal No.413 of 2004 adopted the submissions

made by learned senior counsel. He submitted that he has no

other submission.

8. Per contra, learned Additional Public Prosecutor

Shri M.K.Pathan for the respondent/State vehemently

submitted that evidence of Smt.Shampa (PW2) and evidence

of Devprasad (PW7) shows that in Test Identification Parade

they identified both the accused. It is his submission that in

addition to identification by these two prosecution witnesses

in the Test Identification Parade, even during the course of the

Trial, they identified as persons who committed the crime in

their house. It is his submission that since both the accused

are identified during the course of the Trial, which is a

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substantive piece of evidence, the said is sufficient to uphold

the impugned judgment. In support of his submissions, he

relied on an authoritative pronouncement of the Honourable

Apex Court in the case of Malkhansingh and others vs. State of

Madhya Pradesh, reported at AIR 2003 SC 2669. In addition

to the said, it is his submission that there is a corroboration in

the nature of seizure of the gold from Jewellers Puranchand

Agrawal (PW12) and Ramdas Agrawal (PW13) who also

identified both the accused as persons who sold the gold to

them. He, therefore, submitted that the appeals be dismissed.

CRITICAL ANALYSIS OF THE PROSECUTION CASE

9. At the outset, I would like to mention that though

both the accused were charged for offences under 397 of the

Indian Penal Code and under Sections 3 and 25 of the Arms

Act 1959 and they were acquitted by learned Judge of the

Court below of the said charge. The prosecution accepted the

verdict of the Trial Court to that extent by not preferring any

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appeal.

10. Therefore, this Court is required to answer a

question posed to it as to whether the prosecution proved the

guilt of the accused for offence under Section 392 of the

Indian Penal Code beyond reasonable doubt.

11. Though the prosecution examined in all 20

witnesses, all panch witnesses turned hostile. Also, Rafiq

Ahmad Abdul Rehman (PW8), who runs a Chicken Centre at

Walni, who was examined by the prosecution to fix the

presence of the accused persons at the relevant time of the

commission of the offence in the vicinity of the spot of the

incident, has turned hostile. Similarly, Macchindra Rupchand

Shelare (PW18), who was examined by the prosecution to

show that he was driver of vehicle who took Shambabu,

accused No.1 to Dongargadh, has also failed to support the

prosecution case.

12. The law regarding appreciation of witnesses, who

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failed to support the prosecution case, is well crystallized in

the case of Khujji @ Surendra Tiwari vs. State of Madhya

Pradesh, reported at (1991)3 SCC 627. However, to support

the prosecution case even the law laid down in the said case

cannot be applied since there is nothing in evidence of the said

hostile witnesses by which one could state that to a slightest

extent they supported the prosecution case.

13. The prosecution also examined Dr.Somshubhra

Upresh Gupta (PW3). His evidence is also not relevant for

deciding the present appeals since his evidence shows that he

kept his gold ornaments in the house of Smt.Shampa (PW2)

which were also looted away.

14. A Jeweller Ashokkumar Khemrajji Daga (PW14)

from Dongargadh is concerned, learned Judge of the Court

below himself recorded a finding that the prosecution failed to

establish that Shambabu, accused No.1 sold the gold

ornaments to him.

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15. After keeping aside the evidence of hostile

witnesses Rafiq Ahmad (PW8) and Macchindra Shelare

(PW18) and evidence of Dr.Somshubhra Gupta (PW3) and

jeweller Ashokkumar Daga (PW14), the Court is required to

evaluate and scan evidence of following witnesses to record its

finding and they are:

1] Smt.Shampa Devprasad Sengupta (PW2);

2] Devprasad Sengupta (PW7) husband of Smt.Shampa

(PW2); 3] Arundhati alias Jiya Devprasad Sengupta (PW10);

4] Puranchand Vithalal Agrawal (PW12); 5] Ramdas

Mulchand Agrawal (PW13); 6] Naib Tahsildar Prakash

Ramrao Mahajan (PW17), and of course Investigating Officer

Rajesh Awdumbar Dudhalwar (PW20).

16. Devprasad (PW7), was not present in the house

when the incident took place. According to the prosecution,

he noticed presence of Shambabu, accused No.1 in proximity

of the actual incident of robbery in the vicinity of the spot of

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the incident.

Smt.Shampa (PW2) and her daughter Arundhati

(PW10) were present in the house at the time of occurrence of

the incident. Puranchand Agrawal (PW12) and Ramdas

Agrawal (PW13) are owners of jeweller's shops situated at

Agra and according to the prosecution, the looted property

was sold to them. Naib Tahsildar Prakash Mahajan (PW17)

conducted Test Identification Parade.

ABOUT TEST IDENTIFICATION

17. Admittedly, neither Smt.Shampa (PW2);

Devprasad (PW7) husband of Smt.Shampa (PW2); Arundhati

(PW10); Puranchand (PW12) nor Ramdas (PW13) were

knowing any of the accused prior to time when they came in

contact with them at different point of time.

18. From the evidence of Investigating Officer Rajesh

Dudhalwar (PW20), it is clear that from the descriptions given

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by Smt.Shampa (PW2) he zeroed down his suspicion on

Shambabu, accused No.1 and accordingly he went to his

house and collected the photographs from his house.

19. In order to ascertain identity of the accused

persons, after they were arrested on 25.5.2002, the

Investigating Officer gave a requisition (Exhibit 42) to Taluka

Magistrate for holding and conducting Test Identification

Parade and accordingly the Test Identification Parade was

held by Naib Tahsildar Prakash Mahajan (PW17) at tahsil

office at Saoner and per the prosecution, both Smt.Shampa

(PW2) and Devprasad (PW7) identified both the accused. The

Test Identification Parade memorandum Part-I is at Exhibit 13.

Whereas, Test Identification Parade memorandum Part-II is at

Exhibit 13-A.

20. Learned senior counsel stepped up a very serious

challenge not only to the procedure adopted by Naib Tahsildar

Prakash Mahajan (PW17) but also authenticity of the Test

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Identification Parade itself. According to him, if the record of

the case is properly examined in its correct perspective, there

is a serious doubt as to whether really on 25.5.2002 the Test

Identification Parade was held.

21. With the assistance of learned senior counsel

appearing in these appeals, I have gone through the record

and proceedings of the case, in addition to proved documents

during the course of the Trial.

22. Exhibit 13 shows that on 25.5.2002 at 2:40 in the

noon, Test Identification Parade (Part-1) was held in the Court

of Tahsildar, Tahsil Office at Saoner, in which Smt.Shampa

(PW2) and Devprasad (PW7) identified both the accused.

Exhibit 13-A, the Test Identification Parade, shows

that Naib Tahsildar Prakash Mahajan (PW17) completed

entire procedure including writing of memorandum (Part-II)

on 25.5.2002 at 4:00 O'clock in the noon.

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23. In the backdrop, holding of the Test Identification

Parades by two witnesses, my attention was drawn to Exhibit

42 and remand papers.

24. Exhibit 42 is a requisition given by Investigating

Officer Rajesh Dudhalwar (PW20) to Taluka Magistrate,

Taluka Office, Saoner on 25.5.2002 for holding Test

Identification Parade of the accused persons in Crime

No.44/2002 registered at Khaperkheda Police Station. The

said requisition shows that the Test Identification Parade is

required to be held for identification of the accused by

Smt.Shampa (PW2). The said requisition also recites that on

25.5.2002 at 00:30 hours the accused persons are arrested in

the crime.

25. From Exhibit 42, it is clear that Investigating

Officer Rajesh Dudhalwar (PW20) was intending that Test

Identification Parade should be through witness Smt.Shampa

(PW2) alone since name of Devprasad (PW7) is not finding

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place in the said document. The prosecution has not filed any

document on record to show that prior to holding of the Test

Identification Parade any summons was given to Devprasad

that he should remain present in the tahsil office at Saoner for

identification purpose. Therefore, his presence for the

purpose of the Test Identification Parade in the tahsil office at

Saoner itself creates a doubt. It is altogether different that he

may accompany his wife Smt.Shampa to the tahsil office at

Saoner but there was no occasion for Naib Tahsildar Prakash

Mahajan (PW17) to ask him to identify the culprits who were

standing with dummies.

26. Perusal of the record creates a very serious doubt

as to really the Test Identification Parade was held at tahsil

office at Saoner on 25.5.2002 between 2:40 O'clock in the

noon and 4:00 O'clock in the noon.

27. File-D of the record consist of remand papers along

with vakalatnamas, various applications for bail papers,

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summons warrant, and misc. applications.

Running page No.10 of File-D is a remand paper

dated 25.5.2002. By the said, Investigating Officer Rajesh

Dudhalwar (PW20) sought police custody remand. The said

remand paper dated 25.5.2002 shows both the accused were

arrested on 25.5.2002 at 00:30 hours and various reasons

were cited for police custody remand of the accused from

25.5.2002 to 8.6.2002. One of reasons in the said remand

paper for claiming the police custody remand is at item No.7

and it recites as under:

"vkjksihaph vksG[k ijsM d#u ?ks.ks vkgs- rlsp
?kVukLFkGkoj xqUgk dsY;kps uarj iksyhlkauk cksVkps Bls
feGkys vkgs R;kdfjrk vkjksihrkaps cksVkps Bls ?ksowu
rikl.kh dj.ks vkgs-"

For the Test Identification Parade, identification of

the accused and also for obtaining finger prints for comparing

the same with the finger prints found at the spot of the

occurrence, learned Magistrate passed an order on 25.5.2002

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and granted police custody remand, till 4.6.2002. It would be

very useful to reproduce the remand order by learned

Magistrate and the said is reproduced herein under:

"O
Accused produced before me on 25.5.2002 at
4:15 p.m. (emphasis is supplied). No
complaint. I.O. present. Case diary
seen. ............"

From the order, it is clear that the accused persons

were produced before learned Magistrate for claiming their

police custody remand at 4:15 p.m. and one of reasons for the

police custody remand was for holding Test Identification

Parade.

If that be so, no explanation is coming on record

from the prosecution side as to how documents Exhibits 13

and 13-A recite time as 2:40 in noon and 4:00 in the noon.

The aforesaid creates a doubt in the mind as to

really the prosecution conducted the Test Identification

Parade, as stated in documents Exhibits 13 and 13-A.

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28. On 25.5.2002, at 00:30 hours, the accused were

arrested in a cognizable office.

Section 57 of the Code of Criminal Procedure

mandates that, "no police officer shall detain in custody a

person arrested without warrant for a longer period than under

all the circumstances of the case is reasonable, and such period

shall not, in the absence of a special order of a Magistrate under

section 167, exceed twenty- four hours exclusive of the time

necessary for the journey from the place of arrest to the

Magistrate' s Court".

In the present case, in connection with the

commission of the cognizable offence, the Investigating Officer

detained the accused persons after arresting them at 00:30

hours. Therefore, it was well within the right of the

Investigating Officer to do all investigations within 24 hours of

the arrest of the accused persons and if the Investigating

Officer was of opinion that it would be impossible to complete

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the investigating without the presence of the accused persons,

for authorization of their detention, the Investigating Officer

was bound to move before learned Magistrate for extension of

period as envisaged under Section 57 of the Code of Criminal

Procedure.

29. How to conduct investigation, is a sole prerogative

of the Investigating Officer. In his wisdom, he can take all

necessary steps for fruitful investigation. One of such steps

could be holding of Test Identification Parade.

Documents Exhibits 13 and 13-A show that the

said was done between 2:40 in the noon and 4:00 O'clock in

the noon. Thus, well within first 24 hours of the arrest of the

accused persons, the said part of investigation was done by the

Investigating Officer.

In that view of the matter since the Test

Identification Parade was already over, there was no reason

for the Investigating Officer to claim police custody remand

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for the reason of holding the Test Identification Parade.

30. In this case, it is also to be seen that whether the

Test Identification Parade was held properly and how much

weightage should be given to it.

31. The Test Identification Parade was conducted by

Naib Tahsildar Prakash Mahajan (PW17).

32. Instructions given by this Court for conducting Test

Identification Parades are contained in paragraph No.61 of the

Criminal Manual.

The Division Bench of this Court in the case of

Vilas Vasantrao Patil vs. The State of Maharashtra, reported at

1996 CRI L.J. 1854 ruled that the instructions are not

statutory but have been consistently followed to ensure a fair

and unassailable identification parade.

33. In this context, clauses 7 and 21 of the said

Criminal Manual under the head procedure for holding Test

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Identification Parades are relevant and those are reproduced

herein under:

"(vii) After the parade is arranged, one of the
two respectable persons should be sent up to
bring the accused from the lock-up. Care
should be taken to see that when the accused
is being brought from the lock up, the
identifying witnesses do not have an
opportunity of seeing him. They should be
kept in quite a different room, out of sight of
the lock-up.

(xxi) The most important part of the
memorandum will be the statements made by
the identifying witnesses. These should be
very carefully recorded, alongwith the
questions asked to the identifying witnesses.
(This recording need not be in the question
and answer form). For example, an
identifying witness may be asked if he is able
to identify any one in the parade as the
persons who fired the shot, and the
identifying witness may point out the accused
and may add that it was not the accused who
actually fired, but that the accused was
standing by the side of the man who had
fired the shot. In that case, whatever the
identifying witness states, should be carefully
noted, as far as possible in his words
(translated into English)."

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34. In the above context, the Court will have to

scrutinize evidence of Naib Tahsildar Prakash Mahajan

(PW17) who conducted the Test Identification Parade. His

evidence shows that after receipt of requisition (Exhibit 42),

he directed the police to arrange more than 12 dummy

candidates. He called two panchas. He asked both the

accused persons to stand amongst the dummy candidates as

per their wish.

35. As per clause 7 of the Criminal Manual, before

Identification Parade, identifying witnesses should not have an

opportunity to see accused person.

In this context, it would be useful to notice

evidence of Devprasad (PW7). He stated on oath that after

about one month of the incident, he was called in Saoner

Tahsil for identification and he and his wife sat in the corridor,

meaning thereby that they were not sitting in room. No

evidence is brought on record by the prosecution which clears

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a doubt regarding not having an opportunity to them to see

the accused persons when these two prosecution witnesses

were sitting in the corridor.

36. In addition to that, Naib Tahsildar Prakash

Mahajan (PW17), who conducted the Test Identification

Parade, candidly stated that when the accused persons were

brought to the Tahsil Office, that time the faces of the accused

persons were not masked. On the contrary, he stated that

they were uncovered.

Thus, the faces of the accused persons were

exposed to everybody before they were being taken inside the

room where the Test Identification Parade took place.

Further, Smt.Shampa (PW2) was already shown photographs

of Shambabu, accused No.1 by the Investigating Officer during

the course of the investigation.

37. Evidence of Naib Tahsildar Prakash Mahajan

(PW17) shows that he has not followed clause No.21 of the

.....30/-

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Criminal Manual inasmuch as after holding of the Test

Identification Parade, he has not recorded statements of

Smt.Shampa (PW2) and Devprasad (PW7).

38. Thus, from the aforesaid, insofar as Test

Identification Parade is concerned, following things emerge:

(i) by giving requisition (Exhibit 42), the

Investigating Officer asked to hold Test

Identification Parade for identifying the accused by

Smt.Shampa (PW2) alone;

(ii) there is no document available on record to

show that Devprasad (PW7) was asked to attend

Saoner Tahsil Office for identifying the accused

persons in the Test Identification Parade;

(iii) in addition to that, Investigating Officer

Rajesh Dudhalwar (PW20) is silent that even he

orally directed Devprasad (PW7) that his presence

.....31/-

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is required at Saoner Tahsil Office to facilitate the

Test Identification Parade;

(iv) Smt.Shampa (PW2) and Devprasad (PW7)

were sitting in corridor and there is no evidence

that there was no opportunity for them to see the

accused persons before they were taking inside the

room where the Test Identification Parade took

place;

(v) when the accused persons were brought to

Saoner Tahsil Office for their identification, at that

time they were unmasked and their faces were

uncovered;

(vi) after completion of the Test Identification

Parade, statements of the witnesses were not

recorded by Naib Tahsildar Prakash Mahajan

(PW17); and

.....32/-

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(vii) Smt.Shampa (PW2) was already shown

photographs of Shambabu, accused No.1 by the

Investigating Officer during the course of the

investigation.

39. The Honourable Apex Court in paragraph No.9 in

the case of Ravindra alias Ravi Bansi Gohar vs. State of

Maharashtra cited supra observed as under:

"Another disturbing feature of the case is that
the TI parade was held inside the lock-up of
the CID Department of the Bombay Police
which was investigating into the case at the
material time. In Hasib vs. State of Bihar AIR
1972 SC 283, this Court observed that a vital
factor for determining the value of an
identification parade is the effectiveness of the
precautions taken by those responsible for
holding them against the identifying witnesses
having an opportunity of seeing the persons
to be identified by them before they are
paraded with other persons and also against
the identifying witnesses being provided by
the investigating authority with other unfair
aid or assistance so as to facilitate the

.....33/-

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identification of the accused concerned. The
above observations aptly apply in the facts of
the instant case for not only the photographs
of the appellants and other accused were
shown before the TI parades, but they were
held in the lock-up of the investigating agency
thereby giving sufficient opportunity to the
identifying witnesses of seeing the persons to
be identified. Having regard to the fact that
the above two identifying witnesses were
police constables attached to the concerned
police station, it was all the more necessary
for the investigating agency to ensure that the
TI parade was held in a manner and at a
place (preferably in jail) so as to avoid any
criticism about its legitimacy."

In my view, since the accused persons were

brought to Saoner Tahsil Office unmasked, they were exposed

to everybody to see them even prior to the Test Identification

Parade. Therefore, the observations of the Honourable Apex

Court cited supra is fully applicable to the present case.

40. In view of the aforesaid discussions, though in

paragraph No.16 of the judgment and order impugned in the

present appeals learned Judge of the Court below observed

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that there is a doubt about validity of the Test Identification

Parade, on re-appreciation and reevaluation of the entire

prosecution case, in respect of the Test Identification Parade,

there is no slightest doubt in my mind to reject the entire

exercise of the prosecution agency in respect of the Test

Identification Parade by those two prosecution witnesses.

IDENTIFICATION IN THE COURT

41. By now, the law is well crystallized and settled that

identification by the prosecution witnesses during the course

of the Test Identification Parade is not a substantive piece of

evidence. The said exercise is done only to ensure that the

investigating agency is on the right track. Learned Additional

Public Prosecutor was right in submitting that the

identification by the witnesses in the Court during the course

of the Trial is a substantive evidence and, in my view, he

rightly relied upon an authoritative pronouncement of the

Honourable Apex Court in the case of Malkhansingh and

.....35/-

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others vs. State of Madhya Pradesh, cited supra in that

behalf.

42. The Honourable Apex Court in the case of

Mohd.Abdul Hafeez vs. Sate of Andhra Pradesh, cited supra

observed that where identification by witnesses of accused in

the Court after 4 months of offence without the victim giving

description of the accused in the first information report and

no Test Identification Parade was held, conviction on such

evidence is unsustainable.

43. The Honourable Apex Court in the case of

Mohanlal Gangaram Gehani vs. State of Maharashtra cited

supra has ruled the same.

44. In the context of the law laid down in the aforesaid

two cases, let us scrutinize evidence of Smt.Shampa (PW2)

and Devprasad (PW7) on the point of identification in the

Court.

.....36/-

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Smt.Shampa (PW2), after identifying the accused

persons, states that Shambabu, accused No.1 was holding a

revolver. In the oral report (Exhibit 12), she narrated as

under:

".............. a person wearing navy blue
coloured full sleeves shirt and faded blue
coloured jeans and who was of dark
complexion, short heighted and slim and
having beard and combed his hair backward
inserted his revolver into my mouth."

Thus, in the First Information Report it was

specifically reported by the first informant that person having

dark complexion was holding a gun in his hand and he was

short heighted person. However, in cross-examination, she

agreed Shambabu is having fair complexion.

In any case, she did not state Shambabu is having

black complexion when she identified him in the Court.

Further, from evidence of Devprasad (PW7) it is

brought on record that height of Shambabu is about 5' feet 10"

.....37/-

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inches.

Therefore, in any case, Shambabu, accused No.1

cannot be termed as a person having short height as claimed

in the First Information Report.

45. Further, the evidence of these two prosecution

witnesses were recorded on 15.10.2003 and 16.10.2003

respectively about 1½ year from the date of the incident on

24.4.2002.

In the First Information Report or even from her

substantive evidence, Smt.Shampa (PW2) never claims that

she was able to identify the accused persons because of some

special characteristics noticed on the persons of the accused.

In that view of the matter, when there is variance

of the description of Shambabu, accused No.1 in the First

Information Report and from the witness box, it would be very

hazardous on the part of the Court to record a finding that in

.....38/-

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this circumstance the Court is bound to give sanctity for the

identification of the accused persons.

Similar is the case in respect of Devprasad (PW7) is

concerned.

46. It is true that Arundhati (PW10) identified the

accused persons. According to the prosecution, the said girl was

present at the time of the incident. She was at the time of the

incident aged about 12 years. Though she was witnessed to the

crime, for the reasons best known to the prosecution, during the

course of the investigation, in the Test Identification Parade, the

said witness was not produced by the prosecution to identify the

accused persons. Her evidence is also recorded after 1½ year

from the date of the incident on 24.4.2002.

47. There is one more reason for not accepting the

evidence of Smt.Shampa (PW2) and Arundhati (PW10).

According to these two witnesses, the main door of the house

was latched from inside. It is not brought on record that except

.....39/-

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that door there exists any other way for entry in the house.

None of these two witnesses claims that they opened the door.

The spot panchnama (Exhibit 10) does not show any signs that

the door was broke open. In this backdrop, suggestion given to

these two witnesses that they were not present in the house at

the time of the incident assumes importance and their presence

itself comes under cloud.

In such circumstances, the observations of the

Honourable Apex Court in the case of Mohd.Abdul Hafeez vs.

Sate of Andhra Pradesh, cited supra apply with its full force in

respect of this prosecution witness.

48. Learned Additional Public Prosecutor heavily relies

on evidence of Puranchand Agrawal (PW12) and Ramdas

Agrawal (PW13) to the effect that these two prosecution

witnesses have identified the two accused persons. Puranchand

and Ramdas are owners of jeweller's shops situated at Agra.

According to the prosecution, when Shambabu, accused No.1

.....40/-

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was in police custody remand, on 28.5.2002 he gave his

disclosure statement to the effect that he sold gold ornaments at

Agra and, therefore, Investigating Officer Rajesh Dudhalwar

(PW20) along with Shambabu and other staff members went to

Agra. At the Agra, Shambabu led the police party to Goel

Jewellers wherein Puranchand was present. As per the evidence

of the Investigating Officer, Puranchand told him that he

purchased the gold ornaments from Shambabu, melted those

ornaments, prepared gold strips, and produced that gold bars

before him and he seized those gold bars under seizure

panchnama (Exhibit 30).

Similarly, as per the evidence of the Investigating

Officer, Shambabu led the police party to the shop of Ramdas

Agrawal (PW13). He came to know from Ramdas that he

purchased the gold ornaments from Shambabu, accused No.1

and, thereafter, he melted the same and prepared gold bars

which were seized from him under seizure panchnama (Exhibit

.....41/-

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32).

49. Learned Additional Public Prosecutor submitted that

the seizure of the gold-bars from the shops of the aforesaid two

prosecution witnesses and they identifying Shambabu, accused

No.1 in the Court the person from whom they purchased the

gold-bars is a corroborative piece of evidence.

50. I find myself unable to agree with the submission of

learned Additional Public Prosecutor. If evidence of Puranchand

Agrawal (PW12) and Ramdas Agrawal (PW13) are perused,

evidence of Puranchand shows that about 1½ year back one lady

and three men had come to his shop and those persons wanted

to sell gold ornaments to him. However, he was not ready to

purchase those gold ornaments. One of men told him that all

the articles belong to him were stolen away and there is a

marriage of his sister and due to that he wanted to sell the

ornaments. Evidence of Puranchand further reveals that since

he was not ready to purchase the ornaments, they went away.

.....42/-

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After one hour, all of them came to his shop and they brought

melted piece of the gold weighting 31 grams which he purchased

at the price of Rs.17,000/-.

Insofar as Ramdas (PW13) is concerned, his

evidence also shows that Rajjan, accused No.2 along with two

other came to his shop and told him that he wanted to sell

ornaments of his wife. However, he shows reluctance to

purchase the ornaments. Thereafter, he asked him firstly to melt

the ornaments, bring pure gold, and then only he will purchase

the same. After, half an hour, Rajjan again came to his shop. At

that time, it was weighing 40 grams. He purchased that the said

gold at price of Rs.21,000/- from Rajjan.

51. From the evidence of these two prosecution

witnesses, it is clear that they are giving altogether different

narrations as to how the gold strips came in their possession. As

per the evidence of Investigating Officer Rajesh (PW20), when

he visited their shops and seized the gold bars, at that time it

.....43/-

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was narrated by these prosecution witnesses that they purchased

the gold ornaments and then melted and converted it into the

gold bars. However, in the Court they are deposing exactly the

opposite.

In any case, the Investigating Officer was knowing

that the gold seized from these two prosecution witnesses was

stolen property in its original state. Therefore, it was very clear

that these two persons were receiver of the stolen property

which is punishable under section 411 of the Indian Penal Code.

However, these two persons were not booked for the said

offence by the Investigating Officer. It is altogether different

that whether the prosecution would have been successful in

proving their guilt for the offence under Section 411 of the

Indian Penal Code. However, they were not booked for the said

offence. The said shows that the Investigating Officer showed

some leniency in their favour by not registering the offence

against them which clearly brings them under the thumb and

.....44/-

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dictate of the Investigating Officer. Therefore this Court is not

ready to attach any importance to the identification of the

accused persons by these two prosecution witnesses in the Court

hall.

52. As noticed in the earlier part of this common

judgment that in the first remand paper the Investigating officer

claimed police custody of the accused persons for obtaining their

fingers' prints because according to the said remand paper

fingers' prints were found on the spot at the time of the

investigation. When the police custody remand was granted, the

Investigating Officer must have taken all steps for obtaining their

fingers' prints for comparing the fingers' prints taken from the

spot of the incident. However, the prosecution case is totally

silent about the said aspect. Therefore, that circumstance, in my

considered view, goes in favour of the accused persons.

53. The re-appreciation and the reevaluation of the

entire prosecution case and conspectus of all the aforesaid

.....45/-

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discussions made in this common judgment leads me to pass

following order:

ORDER

(i) The criminal appeals are allowed.

(ii) The judgment and order of conviction dated 24.3.2004 passed by 1st Ad hoc Additional Sessions Judge, Nagpur in Sessions Trial No.572/2002 is hereby quashed and set aside.

(iii) Both appellants are acquitted of the offence under Section 392 of the Indian Penal Code.

(iv) The appellants are on bail. Their Bail Bonds stand cancelled.

JUDGE !! BRW !! ...../-

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