Bombay High Court
The State Of Maharashtra vs Arun Umaji Bansode on 10 June, 2004
Equivalent citations: 2004CRILJ3706
Author: R.S. Mohite
Bench: R.M.S. Khandeparkar, R.S. Mohite
JUDGMENT R.S. Mohite, J.
1. This is an appeal against acquittal filed by the State against the judgment and order dated 19-2-1991, passed by the Judicial Magistrate, First Class (A.C.), Pune in Criminal Case No. 1296 of 1986.
2. The brief facts of the prosecution case are as under:-
A. That the complainant Vinayak Shankar Jadhav was the Superintendent at Sadhana High School, Hadapsar, Pune. On 15-2-1986 he and his brother-in-law Chandrakant Raoji More and two staff members of his school by name Dattatray Sarvottam Kapare and Mohan Anantrao Yadav decided to see a move at Rahul theatre. The complainant and his brother-in-law purchased tickets of the show of 4.00 p.m. and were waiting in the compound of Rahul theatre for the staff members Kapare and Yadav. While they were waiting, the audience went inside the theatre. The complainant was having tickets in his hand and at that he was approached by two police officers who were under impression that the complainant was indulging in black-marketing of the tickets. The accused who was a police officer caught hold of the left arm of the complainant. The accused was under the impression that the complainant was black-marketing. He slapped the complainant on the back side of the neck thrice and took him to the Shivaji Nagar Police Chowky. On verification, however, it was found that the complainant was not black-marketing and the accused was asked to release the complainant. However, the accused took the complainant outside and pushed him in a rickshaw. One another policeman entered from the other side of the rickshaw. The accused slapped the complainant while he was sitting in the rickshaw and took the rickshaw to Rahul Theatre. The policeman who was sitting on the other side asked the complainant to settle the matter. The accused told the complainant to take the rickshaw to his house and demanded Rs. 300/-. The rickshaw was then taken to the house of the complainant and there the accused went into his house and returned with the wife of his brother. The said lady then arranged for Rs. 300/- and paid the same to the complainant. The accused then took the complainant to Dapodi square and on the way, the complainant paid Rs. 300/- to the accused. The complainant was then allowed to go after a warning that if he disclosed the incident to anybody, his legs and hands would be cut off. This entire incident is said to have taken place on 15-2-1986.
B. By a letter dated 17-2-1986 the complainant lodged his complaint. The investigation was commenced. On 14-3-1986, an identification parade was held by the police in which the complainant PW-1 Vinayak Jadhav and the rickshaw driver (PW-14) Sampat Kashinath Ambre are said to have identified the accused person.
3. At the trial, the prosecution examined 18 witnesses to prove their case. The defence of the accused was of total denial.
4. The trial Court concluded that there was material to conclude that robbery had taken place but acquitted the accused on the ground that there was no proper and reliable identification of the accused.
5. We have perused the impugned judgment and order. The learned A.P.P. pointed out that the acquittal was based only upon the improper discarding of the evidence relating to identification. It was contended that the prosecution had examined the Special Judicial Magistrate PW-7 Shankar Balkrishna Deshmukh to prove the identification in the parade. One of the panch witnesses, PW-13 Shivaji Mohanrao Kandare, was also examined and he also corroborated the evidence of the Special Judicial Magistrate relating to the identification parade and the identification of the accused made therein.
6. We find from the records that the identification of the accused is suspect for the following reasons:-
(a) That in his substantial evidence, PW-14 Sampat Ambre, the rickshaw driver, was not able to identify the accused.
(b) That PW-8 Mrs. Heerabai Tukaram Bhosale was one of the witnesses who is said to have seen the accused person when he came to her house. The accused has not been put for identification in an identification parade before this witness. This witness in her cross-examination in chief has also not identified the accused before the Court. In fact, the question relating to identification was not even asked to this witness.
(c) That insofar as the identification by the complainant is concerned, the identification parade was held a month after the incident.
(d) That it appears from the evidence of PW-13 Shivaji Kandare that at the identification parade, the panch was asked by the PSI to call the witness Sampat amber. It was the PSI who had called the dummy persons in the hall. The complainant Jadhav was also called by the PSI. This indicated that the PSI was taking active interest and was present in the immediate vicinity of the place where the identification parade was being held.
(e) The panch admitted in his cross-examination that the six dummies who were called were not identical to the accused person. In fact, PW-14 Ambre in his evidence stated that the accused was a fat person. The identification parade nowhere gives any description of the dummy witnesses.
(f) That in his evidence the panch nowhere stated that the accused were asked to change the clothes.
7. These reasons have also been referred to in the judgment by the trial Court.
8. In our view, the view taken by the trial Court cannot be said to be perverse or impossible so as to be interfered with in an appeal against acquittal. The appeal is, therefore, dismissed.