Bombay High Court
The State Of Maharashtra vs Ashok @ Suresh Laxman Babar & Others on 10 February, 2020
Equivalent citations: AIRONLINE 2020 BOM 1247
Author: V.G. Bisht
Bench: S.S.Shinde, V.G. Bisht
hcs
apeal355.99.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.355 OF 1999
The State of Maharashtra ... Appellant.
V/s.
1. Ashok Suresh Laxman Babar
Sainagar Zopadpatti, Gandhi
Kaomaran, 15th Road, Chembur
Mumbai - 400 071 ...
2. Laxman Narayan Gaikwad
V.K. Krishna Menon Zopadpatti,
136, P.L. Lokhande Marg,
Chembur (E), Mumbai 400 089 ...
3. Jilendar @ Jilhya Prabhuram Jaiswal
Khardev Nagar, Ghatala Village,
Chawl, G/D, Room No.2, Chembur
Mumbai 400 071 ...
4. Ankush Vithal Kaundra
Pallavi Chawl, Room No.388,
Limboni Baug, Govandi
Mumbai 400 043 ... Respondents.
Mrs.M.M.Deshmukh APP for the Appellant-State.
Ms.Jaymala Ostwal for Respondent No.4.
CORAM : S.S.SHINDE &
V.G. BISHT, JJ.
DATE OF RESERVE : 4TH FEBRUARY, 2020
DATE OF PRONOUNCEMENT : 10TH FEBRUARY, 2020
JUDGMENT (PER V.G. BISHT, J.) :
1. This Criminal Appeal has been preferred by the Appellant-State against the judgment dated 4th August, 1998 1/18 ::: Uploaded on - 27/02/2020 ::: Downloaded on - 22/03/2020 16:43:12 ::: apeal355.99.odt passed by learned Additional Sessions Judge, Greater Mumbai in Sessions Case No.330 of 1997 whereby the respondent- accused No.1 has been acquitted of the charges under section 109 read with 451 and 392 and accused Nos.2 to 4 have been acquitted of the charges under sections 451 read with 34, 392 read with 34, 397 and 394 of Indian Penal Code.
2. Briefly stated the prosecution case is that on 28/09/1996 the informant along with his servants, namely, Shyam Narayan Rampyare Gujar and Vijaya Uday Belose was present in the house. At about 8.10 pm somebody ranged door-bell and on opening the door, he found three unknown persons were standing there. One of them told informant that they have been sent by one Ashok and they inquired whether the work pertaining to curtains is required to be done. The informant replied that he does not know any person by name Ashok and that no work of curtain is to be done. According to the prosecution one of the person then demanded glass of water and the same was given by servant Ram Narayan. The person after taking water went into kitchen for keeping the glass. The prosecution alleged that at that time another person took out knife and gave blow from blunt side of knife 2/18 ::: Uploaded on - 27/02/2020 ::: Downloaded on - 22/03/2020 16:43:12 ::: apeal355.99.odt on informant's head and also closed the door from inside. The prosecution further alleged that another person made him sit on sofa in the hall and by that time next person took bedsheet from sofa, tore it and tied hands and legs of the informant. Similarly, the servants Shyam Narayan and Vijaya were tied. They were also gagged.
3. The prosecution then alleged that all of them entered the bedroom and removed various articles like wrist watches, ornaments and cash amount worth Rs.2,35,000/- and they went away by bolting door from outside. Later on, the informant untied himself and called watchman and liftman.
4. It appears that after arrival of the police, they recorded his statement and on the basis of which FIR under C.R. No.444 of 1996 under sections 109 read with section 451 and 392 read with 394 and 397 of Indian Penal Code came to be registered. After necessary investigation the accused were charge-sheeted.
5. The accused abjured their guilt and pleaded false implication.
3/18 ::: Uploaded on - 27/02/2020 ::: Downloaded on - 22/03/2020 16:43:12 :::
apeal355.99.odt
6. Mrs.Deshmukh, learned APP, submitted that evidence of the informant could not be shattered in cross examination and moreover, he had duly identified all the accused in test identification parade conducted by the Special Executive Officer. Apart from above, the stolen articles were also recovered at the instance of accused. Thus, the prosecution has been able to establish guilt of accused beyond reasonable doubt, argued learned APP.
7. Since evidence laid by the prosecution is not properly appreciated and accused wrongly came to be acquitted, interference of this Court is necessary in the light of evidence on record, urged learned APP.
8. Mr.Ostwal, learned Counsel for respondent-accused, submitted that no independent witness is examined by the prosecution. In fact, the prosecution ought to have examined servants, who were present at the time of alleged incident but they are also not brought before the Court for reasons best known to the prosecution. As regards test identification parade, learned Counsel submitted that accused came to be 4/18 ::: Uploaded on - 27/02/2020 ::: Downloaded on - 22/03/2020 16:43:12 ::: apeal355.99.odt arrested on 30/09/1996 and 1/10/1996 but test identification parade was held on 13/11/1996. Thus, test identification was conducted after more than 40 days of the arrest of accused which itself creates doubt. Similarly, necessary rules which are required to be followed at the time of test identification parade were also not followed. Thus, it cannot be said that the prosecution was able to adduce cogent and convincing evidence. Acquittal being proper, no interference is called at the hands of this Court, submitted learned Counsel.
9. We have carefully perused evidence on record. Admittedly, the material witnesses, namely, Shyam Narayan Gujar and Vijaya Belose, who were servants with the informant at the relevant time are not examined by the prosecution for reasons best known to them. The prosecution is heavily banking on testimony of P.W.4 - Informant and P.W.7
- Special Executive Officer, who conducted test identification parade. Therefore, testimonies of these material witnesses are required to be gone into in order to ascertain whether they inspire confidence or not in the mind of this Court. 5/18 ::: Uploaded on - 27/02/2020 ::: Downloaded on - 22/03/2020 16:43:12 :::
apeal355.99.odt
10. P.W.4 Sayyad Sarfaraj Hussain - Informant stated in his evidence (Exhibit-16) that on 28th September, 1996, he along with servants, namely, Shyam and Vijaya were present in house. At about 7.30 pm somebody ranged doorbell and he found three unknown persons there. They told the informant that one Ashok had sent them to repair curtains in his flat but the informant replied that he has no concern with Ashok and that there is no repair work to be done. One of the accused then asked water, so his servant Shyam served the water. His evidence then shows that all accused suddenly pushed his servant and one of them gave blow of Chopper from blunt side on his head. They took out bed-sheet, tore it and tide hands and legs of the informant. His servants were also tied with help of bed-sheet and then accused removed gold ornaments, cash amount, wrist watches and they went away after bolting door from outside. At about 9.30 or 9.40 pm police reached there and his statement was recorded. He proved his FIR at Exhibit-17.
11. It is his further evidence that after 10 days he was called in Arthur Road jail for identification of suspected accused. There were 15 persons standing in a queue. One 6/18 ::: Uploaded on - 27/02/2020 ::: Downloaded on - 22/03/2020 16:43:12 ::: apeal355.99.odt officer was present who asked him to identify accused and he identified all four accused. Then, the informant also identified various articles which were recovered during the course of investigation from accused.
12. It doesn't give much difficulty to understand from evidence of the informant that in test identification parade, he identified all accused. What is pertinent to note here, firstly, is that according to his version, he was called after 10 days of the incident in Arthur Road jail for identification purposes. Whereas record and particularly evidence of P.W.7 - Special Executive Officer shows that it was done on 13/11/1996 i.e. after more than 40 days from alleged incident. Apparently, there is great inconsistency between version of the informant and so far as it relates to date of conduction of test identification parade. Be that as it may, we proceed further and find from his cross examination and admission to the fact that accused no.1 was not present at the time of incident. Admittedly, when accused no.1 was not present at the time of incident, there was no question for the informant to identify accused no.1 in test identification parade and at that time only he could have stated that accused no.1 was not there 7/18 ::: Uploaded on - 27/02/2020 ::: Downloaded on - 22/03/2020 16:43:12 ::: apeal355.99.odt when the incident took place.
13. Equally important feature of his evidence is that there were 15 persons standing in a queue from which he identified all the accused. The cross examination demonstrates that persons i.e. dummies who were standing in a queue were not similar in height, physique and appearance. This in itself goes to show that dummies which were required to be placed in accordance with rules for purpose of identification parade were not chosen by concerned Special Executive Officer and thus, there was violation or breach of guidelines/rules. Therefore, at the moment, testimony of this material witness, who is none other than the informant is not overwhelming and does not instill confidence in our mind.
14. P.W.7 Kirti Ramchandra Purandare stated in his evidence Exhibit-26 that at the relevant time he was the Special Executive Officer on 13th November, 1996, he conducted test identification parade at Aurthur Road Central Prison. He saw accused there and also noted their age, height and complexion. It is his specific evidence that in the first round of test identification parade qua two accused, namely, 8/18 ::: Uploaded on - 27/02/2020 ::: Downloaded on - 22/03/2020 16:43:12 ::: apeal355.99.odt Suresh Babar (A-1) and Laxmi Gaikwad (A-2). He selected 12 dummies and made arrangement. He then inquired from both identifying witnesses, whether suspected accused persons were shown at any time to them but they replied in negative. It is his further evidence that he then sent panch to fetch identifying witness Hussain (Informant) and then asked accused to stand among dummies as per their choice. They accordingly stood in a queue. The informant, accordingly, identified both A-1 and A-2 by touching them.
15. It is his further evidence that then he called another identifying witness, namely, Shyam Gujar (servant of the informant), who also identified A-1 and A-2.
16. The evidence of this witness further shows that in the second round, the informant and said Gujar duly identified accused Jilendar Jaiswal (A-3) and Ankush Kaundare (A-4).
17. We have already pointed out that the prosecution has failed to bring servant of the informant, namely, Shyam Gujar before the Court. His non-examination cripples the stand taken by the prosecution that he was one of eye witness 9/18 ::: Uploaded on - 27/02/2020 ::: Downloaded on - 22/03/2020 16:43:12 ::: apeal355.99.odt to incident and then had successfully identified accused in test identification parade. To that extent no such corroboration is forthcoming.
18. As regards due identification by the informant is concerned, the evidence of P.W.7 does not sound convincing for more than one reasons. While the evidence of P.W.4 - Informant no where shows that he was escorted upto place of identification parade by panch witness, the evidence of P.W.7 shows otherwise.
19. Similarly, cross examination of P.W.4 - informant clearly points out that dummies were of not similar physic, height and appearance as that of accused. On the other hand, the evidence of P.W.7 - Special Executive Officer although shows that before conducting test identification parade, he saw accused, their complexion, age and height but no where deposed that the dummies were accordingly selected keeping in mind the features of the accused. Similarly, his evidence is conspicuously silent as to the fact that he placed suspects/accused among persons who were as far as possible of the same age, height, general appearance 10/18 ::: Uploaded on - 27/02/2020 ::: Downloaded on - 22/03/2020 16:43:12 ::: apeal355.99.odt and position in life. This very essential requirement as contemplated by the provisions of Criminal Manual were clearly overlooked by P.W.7 - Special Executive Officer.
20. The evidence of informant also does not show, as is deposed by P.W.7, that there were two rounds of test identification parade and that Gujar was also there to participate in the test identification parade.
21. It also appears from evidence of P.W.7 - Special Executive Officer that he did not follow necessary guidelines pertaining to test identification parade and this becomes clear when he stated in cross examination that he is not aware about rules framed by the High Court in respect of test identification parade.
22. We are aware of settled principle that test identification parade is not substantive piece of evidence and to hold test identification parade is not even rule of law, but a rule of prudence so that identification of accused inside Court room at the trial can be safely relied upon. It can be used only for corroboration of the accused by witness in the Court. 11/18 ::: Uploaded on - 27/02/2020 ::: Downloaded on - 22/03/2020 16:43:12 :::
apeal355.99.odt
23. The above discussion facilitates us to hold that when whole process of test identification parade was marred by procedural irregularity and inconsistency between version of the informant and Special Executive Officer, it cannot be gainsaid that evidence on the point of test identification parade is here to stay.
24. The prosecution has also placed reliance on the testimonies of P.W.1, P.W.2 and P.W.8 - Investigating Officer on the point of recovery of ornaments at the instance of various accused. We propose to take them one by one.
25. P.W.1 - Vicky Shantaram Toraskar stated in his evidence Exhibit-10 that on 30th September, 1996 he was called at Gamdevi police station to act as panch. A-1, A-2 and A-3 were also present there. They all made disclosure statement and agreed to produce gold ornaments and other articles and accordingly the memorandum panchnama Exhibit- 11 came to be prepared. Pursuant to the statement A-1 took him and other police officials to his residence and from inside the room took out leather bag. There were two wrist watches, 12/18 ::: Uploaded on - 27/02/2020 ::: Downloaded on - 22/03/2020 16:43:12 ::: apeal355.99.odt one tie pin, 4-5 gold colour buttons which were seized by the police.
26. His evidence then shows that A-2 also took them to his house and produced two wrist watches, tie pin and one round shaped watch which were seized. Thereafter A-3 also took them to his residence at village Athala and produced two wrist watches and other articles which were seized by the police.
27. The above alleged discovery, as per evidence of P.W.1 was at the instance of A-1, A-2 and A-3. The nature of evidence of this witness would be outlined after going through evidence of P.W.2 and P.W.8 - Investigating Officer.
28. P.W.2 Sudesh Punaji Rane stated in his evidence that on 3/10/1996, he was called to act as panch witness. According to him A-4 was also present in the police station but it did not so happen that he made disclosure statement in his presence. It is his further evidence that after signing panchnama, A-4 took him and other police staff members to his house from where he produced two wrist watches, one 13/18 ::: Uploaded on - 27/02/2020 ::: Downloaded on - 22/03/2020 16:43:12 ::: apeal355.99.odt golden chain, one pearl mala (Motyachi Mal) and one leather pouch containing in the plastic and 3 currency notes of 100 denomination and 17 currency notes of 20 denomination. He also produced one chopper, one pair of shoes and one pair of socks which were kept on on the loft in the room.
29. As far as the evidence of this witness regarding the alleged disclosure statement of A-4 is concerned, that at all is not proper inasmuch as in his examination itself, the witness deposed clearly and categorically that no such disclosure statement was made in his presence in the police station. Needless to say the subsequent alleged recovery looses significance inasmuch as according to the prosecution, same was pursuant to discovery statement given by A-4.
30. The evidence of P.W.8 - Laxman Mashnaji Bhure, Investigating Officer is on the similar lines as that of P.W.1. As far as A-4 is concerned, his evidence shows that on 1.10.1996, A-4 made disclosure statement in presence of this witness and agreed to produce ornaments and articles from his house. Pursuant to his disclosure statement, he seized one mala of pearl and two pairs of shoes, one chain, one leather pouch 14/18 ::: Uploaded on - 27/02/2020 ::: Downloaded on - 22/03/2020 16:43:13 ::: apeal355.99.odt containing currency notes, one wrist watch of Benrus company and one wrist watch of seikho company and seized all those articles under seizure panchnama Exhibit-13.
31. Section 27 of the Evidence Act comes into operation only :
(i) If and when certain facts are deposed to as discovered in consequences of information received from the accused person in police custody; and (ii) if information relates distinctly to the fact discovered. The fact discovered embraces the place from which the object is produced and knowledge of the accused as to this and the information given must relate distinctly to this fact.
32. We may refer with profit the decision in State of Maharashtra v. Damu S/o Gopinath discovery Shinde and others,1 wherein it has been observed that, "the basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is a 1 AIR 2000 SC 1691, 15/18 ::: Uploaded on - 27/02/2020 ::: Downloaded on - 22/03/2020 16:43:13 ::: apeal355.99.odt guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature, but if it results in discovery of a fact it becomes a reliable information. Hence, the legislature has permitted such information to be used as evidence by restricting the admissible portion to the minimum."
33. In the case at hand, evidence of P.W.1 panch witness only shows that A-1 to A-3 had simply agreed to produce gold ornaments and other articles. His evidence no where reveals that above said accused had also pointed out a particular place where they had concealed gold ornaments. Merely because the said accused then took this witness and police officials to their residence and produced ornaments and other items will not in itself be sufficient compliance of section 27 of the Evidence Act.
34. Although P.W.8 - Investigating Officer does say in his evidence that A-4 had agreed to produce the ornaments and articles from his house in his disclosure statement but the fact remains that version of P.W.8 Investigating Officer is not corroborated by independent panch witness and for that 16/18 ::: Uploaded on - 27/02/2020 ::: Downloaded on - 22/03/2020 16:43:13 ::: apeal355.99.odt reason, as also having regard to nature of alleged disclosure statement given by A-1, A-2 and A-3, we are not keen to accept the version of P.W.8 - Investigating Officer.
35. In view of above, we hold that the evidence laid by the prosecution on the point of alleged recovery of ornaments and other items is not cogent, convincing and satisfactory and, therefore, cannot be taken into consideration. Even otherwise recoveries by themselves do not take prosecution case any further, where evidence of eye witness is not acceptable.
36. P.W.5 is Medical Officer, who had examined the informant on 19th September, 1996. On examination, he found contusion over vital region by means of hard and blunt object. The medical evidence in absence of cogent and convincing ocular evidence alone will not be sufficient in itself to further the case of prosecution.
37. Similar is fate of P.W.6, Finger Print Expert (Exhibit-20). According to evidence of this witness, the finger prints of A-4 were found on cupboard, steel tin (dabba), small 17/18 ::: Uploaded on - 27/02/2020 ::: Downloaded on - 22/03/2020 16:43:13 ::: apeal355.99.odt jar (bharni), white drawer and telephone receiver. As already noted, there is no satisfactory identification of any of the accused by prosecution witnesses, the finger prints if at all found, cannot be conclusive proof of involvement of the accused.
38. For the aforesaid reasons, we hold that the prosecution has not been able to prove the guilt of accused beyond reasonable doubt. The learned trial Court has properly appreciated evidence on record and rightly acquitted the accused. No interference is, therefore, called for. The appeal stands dismissed. Bail bond, if any, stands cancelled.
(V.G. BISHT, J.) (S.S. SHINDE, J.) 18/18 ::: Uploaded on - 27/02/2020 ::: Downloaded on - 22/03/2020 16:43:13 :::