Bombay High Court
Sunil S/O. Maniksingh Bhada (In Jail) vs State Of Maharashtra Thr. Police ... on 26 June, 2018
Author: Swapna Joshi
Bench: Swapna Joshi
Appeal.154.18+
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
CRIMINAL APPEAL NO. 154/2018
WITH
CRIMINAL APPEAL NO. 172/2018
WITH
CRIMINAL APPEAL NO. 198/2018
WITH
CRIMINAL APPEAL NO. 209/2018
CRIMINAL APPEAL NO. 154/2018:
1) Sudhakar s/o Bapurao Yerkade
Aged about 48 years
R/o CPWD Telephone Quarter
Katol Road, Nagpur.
2) Nitin s/o Ganpatrao Raut
Aged about 43 years
R/o Mohan Nagar, Khalasi Line
Nagpur.
3) Naresh s/o Fattuji Kanekar
Aged about 38 years
R/o Gaddigodam, Sunderbagh
Near Masjid, Nagpur. .. APPELLANTS
versus
The State of Maharashtra
Through Police Station Officer
Police Station Sitabuldi, Dist. Nagpur. .. RESPONDENT
...............................................................................................................................................
Mr. C.R.Thakur, Advocate for the appellants
Mr. S.A. Ashirgade, Additional Public Prosecutor for respondent-State
................................................................................................................................................
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CRIMINAL APPEAL NO. 172/2018:
Kishor s/o Uttamrao Thakare
Aged about 24 years
R/o village Dhadi, Tah.Ashti Dist.Wardha. .. APPELLANT
versus
The State of Maharashtra
Through Police Station Officer
Sitabuldi, Dist. Nagpur. .. RESPONDENT
...............................................................................................................................................
Mr. Mir Nagman Ali, Advocate for the appellant
Mr. S.A. Ashirgade, Additional Public Prosecutor for respondent-State
................................................................................................................................................
CRIMINAL APPEAL NO. 198/2018:
Sunil Maniksingh Bhada
Age 30 years
R/o village Dhadi, Tah.Ashti, Dist.Wardha. .. APPELLANT
versus
The State of Maharashtra
Through Police Station Officer
P.S. Sitabuldi, Tah. & Dist. Nagpur. .. RESPONDENT
...............................................................................................................................................
Mr. A.C.Jaltare, Advocate for the appellant
Mr. S.A. Ashirgade, Additional Public Prosecutor for respondent-State
................................................................................................................................................
CRIMINAL APPEAL NO. 209/2018:
1) Arvind Nehrupal Dahiwade
Aged 29 years
R/o village Dhadi, Tah.Ashti, Dist. Wardha.
2) Nilesh Gopalrao Nehare
Aged 28 years
R/o village Dhadi, Tah.Ashti, Dist. Wardha. .. APPELLANTS
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3
versus
The State of Maharashtra
Through Police Station Officer
Police Station Sitabuldi, Dist. Nagpur. .. RESPONDENT
...............................................................................................................................................
Mr. U.P. Dable, Advocate for the appellants
Mr. S.A. Ashirgade, Additional Public Prosecutor for respondent-State
................................................................................................................................................
CORAM: MRS.SWAPNA JOSHI, J.
DATED : 26th June, 2018
ORAL JUDGMENT:
1. The above-referred Appeals are preferred against the judgment and order dated 27.02.2018 delivered by learned Additional Sessions Judge-3, Nagpur in Sessions Trial No.160/2014. By the impugned order, the original accused nos. (1) to (7) were convicted for offence punishable under section 394 read with Section 109 of the Indian Penal Code and sentenced to suffer R.I. for five years and to pay a fine of Rs. 5000/- each in default to suffer SI for three months. The original accused nos.1 to 4 were convicted for the offence punishable u/s 452 r/ws 34 of PC and sentenced to suffer RI for three years and to pay a fine of Rs. 2000/-each in default to suffer SI for one month. The original accused nos.1 to 4 were further convicted for offence punishable u/s. 342 r/ws. 34 of IPC and sentenced to suffer RI for one year and to pay a fine of Rs. 1000/- each in default to suffer SI for one month. The original accused nos. 1 to 4 were also convicted for offence punishable u/s 506 r/ws. 34 of IPC and sentenced to suffer RI for one year each in default to suffer SI for one month. All the sentences were directed to be run concurrently.
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2. The facts of case as unfolded during the course of trial, are succinctly narrated as under :-
Complainant-Karuna Yogesh Bang (PW2) was residing at Brij Apartment Flat No.C-2, Civil Lines, Nagpur along with her husband and son. On 4.12.2003 at about 7.00 pm, when PW1 was all alone at home and watching television, she heard the door bell. On opening the door, she noticed one boy was standing at the door with a brown colour envelope in his hand. The said boy asked whether the said house belongs to Yogesh Bang, to which PW2 answered in affirmative. Suddenly, the said boy pushed the door and entered inside the house of PW2. Three persons followed him. They also rushed inside the house, thereafter they closed the door of the flat and at the point of knife they threatened PW2 not make any hue and cry otherwise they would kill her as well as her husband and son. They enquired with her as to where the cash and ornaments were kept in the house. The accused persons snatched the mobile from her hand. PW2 then gave keys of the lock. The accused persons opened the locker removed the cash amount as well as gold ornaments and kept all those articles in a pillow cover. The accused persons also removed the gold ornaments on the person of PW2.Those articles were four finger rings, a necklace and a kangan. Accused person then tied the hands and legs of PW2 by means of her chunni and tried to gag her mouth by means of adhesive tape. However PW2 told them that she would not make any hue and cry and they should leave that place. Accused persons then left the premises warning her that she should not raise any alarm and inform the police, otherwise they would kill her husband. PW2 somehow untied herself and came to the balcony of kitchen of her ::: Uploaded on - 09/07/2018 ::: Downloaded on - 10/07/2018 23:15:30 ::: Appeal.154.18+ 5 flat and started shouting as 'chor, chor'. All the accused persons boarded the red colour Indica car and fled away. PW2 then proceeded to the Police Station and lodged her complaint (Exh.85).
3. At the relevant time, API Jayendra Bhoyar (PW 3) was attached to Police Station Sitabuldi. At about 7.30 pm he recorded the complaint of PW2. On the basis of the said complaint (Exh.85) , he registered the offence vide C.R. No.431/2013 vide printed FIR Exh.87. PW3-Bhoyar then proceeded to the place of the incident and recorded the spot panchnama (Exh.99). PW9-Babagiri Goswami, PSI, tried to search the culprits. PW9 then arrested the original accused no.1 Sunil on 9.12.2013. The accused no.1 was brought to the Police Station along with car bearing No. MH31 : BB 9137. Thereafter, on the same day, PW9-Goswani arrested the accused Nos.5, 6 and 7. PW9-Goswami also arrested accused no.2 on 15.12.2013; accused No.3 on 18.12.2013 and accused no.4 on 4.1.2014. It is the case of the prosecution that at the instance of accused no.1-Sunil, cash amount of Rs. 18,000/- was taken charge by PW9- Goswami. Similarly at the instance of accused no.2 cash amount of Rs. 12,000/-; at the instance of accused no.3 cash amount of Rs. 14000/-; at the instance or accused no.4 cash amount of Rs. 25,000/- ; cash amount of Rs. 7500/- from accused no.5; cash amount of Rs. 5500 from accused no.6 and the cash amount of Rs.3000/- from accused no.7 was taken charge by PW9-Goswami. Separate memorandum panchnamas and seizure panchnamas were drawn by the Investigating Officer PW9-Goswami. PW9 arranged for the test identification parade (in short 'TI parade') in respect of accused nos.1 to 4 on ::: Uploaded on - 09/07/2018 ::: Downloaded on - 10/07/2018 23:15:30 ::: Appeal.154.18+ 6 24.1.2014. It is the case of the prosecution that accused nos.1 and 4 were identified by PW2-Karuna in the parade. During the course of investigation, statements of various witnesses were recorded by PW9. After completion of investigation, charge-sheet was filed in the Court of learned JMFC. Charge was framed by the learned Additional Sessions Judge. On appreciation of the evidence and after hearing both sides at length, the learned trial Judge convicted the accused as aforesaid.
4. I have heard learned Advocates S/ Shri Thakur, Mir Nagman Ali, Jaltare and Dable, for the respective appellants and Shri S.A. Ashirgade, learned APP for the respondent-State. With their assistance, I have gone through the entire record of the case.
5. Shri A.C.Jaltare, learned counsel appearing for appellant in Criminal Appeal No.198/2018, vociferously argued that the learned trial Judge has overlooked the fact that original accused No.1-Sunil and No.4-Kishor although were identified by the witness PW2-Karuna in the TI parade, accused no.4 was not identified in the court and although the accused no.1 was identified in the court by PW2 still it was not considered that while conducting the TI parade the Executive Magistrate has not followed the norms, procedures and the guidelines as laid down in the High Court Criminal Manual. He further submitted that the procedure is violated by the Executive Magistrate. The Executive Magistrate has not taken care of the fact whether the witnesses had an opportunity to see the accused persons after their arrest and prior to ::: Uploaded on - 09/07/2018 ::: Downloaded on - 10/07/2018 23:15:30 ::: Appeal.154.18+ 7 conducting the test identification parade. He further submitted that the description of the accused no.1-Sunil as shown in the FIR, transpires that he was a person, aged about 25 years old having 5 feet 8 inches height and curly hair, whereas memorandum of test identification (Exh.87) shows the description of accused no.1-Sunil as a person aged about 30 years and the age of accused no.4- Kishor as 24-years. However both the accused persons were put in the same parade although they were of different age, different complexion and different physic and height. In view thereof, the learned counsel submitted that the TI parade cannot be relied upon. It was further submitted that on the point of recovery no Panchas were examined by the prosecution insmsuch as the prosecution has simply relied upon the testimony of Investigating Officer PW 9-Goswami. He further contended that most of the witnesses in this case turned hostile and had not supported the prosecution case.
6. Learned Advocate for appellant in Criminal Appeal No. 172/2018 Shri Ali adopted the arguments advanced by Jaltare, Advocate. He further submitted that on the point of recovery none of the witnesses except the Investigating Officer PW9-Goswami whispers about the factum of recovery. He further submitted that even the ornaments which were allegedly taken charge at the instance of accused no.4-Kishor were not put in TI parade and the ornaments were directly identified by PW2 in the court. He submitted that such identification does not inspire confidence as such. Learned Advocate Shri Thakur in Criminal Appeal No. 154/2018 and Shri Dable in Criminal Appeal No. 209/2018 adopted the arguments advanced by the learned Advocate Mr.Jaltare and ::: Uploaded on - 09/07/2018 ::: Downloaded on - 10/07/2018 23:15:30 ::: Appeal.154.18+ 8 contended that the entire case of the prosecution is doubtful and the learned trial Judge has not considered the evidence led by the prosecution in its right perspective and has illegally convicted the accused persons. Thus, the learned Advocates for appellants prayed for acquittal of the accused persons.
7. Per contra, Shri S.A.Ashirgade, learned APP contended that the learned trial Judge has considered the entire material evidence on record properly, more particularly, the testimony of PW2-Karuna in whose house the incident had taken place. He contended that the PW2 had ample opportunity to see the accused persons hence there is no question of any TI parade as such. He further submitted that there are no infirmities in the TI parade conducted by the Executive Magistrate. He further submitted that the recovery of cash amount as well as recovery of ornaments at the instance of accused persons strengthens the case of the prosecution. According to learned APP, the learned trial Judge has rightly considered all the aspects of the matter and has rightly convicted the accused persons. He supported the impugned judgment.
8. I have considered the rival contentions of both the sides. In order to substantiate the case of the prosecution, it has heavily relied upon the testimony of PW 2-Karuna Bang, who is the complainant; PW6-Bhagwan Dongre, who is the watchman of the building where the alleged incident had taken place; PW9-Babagiri Goswami, the Investigating Officer and PW 10-Trimbak Kable, Special Judicial Magistrate, who has conducted the TI parade in respect of the accused persons. In order to verify the rival ::: Uploaded on - 09/07/2018 ::: Downloaded on - 10/07/2018 23:15:30 ::: Appeal.154.18+ 9 contentions, it would be advantageous to go through the evidence led by the prosecution.
9. The deposition of PW2-Smt.Karuna Bang shows that on 4.12.2013 at about 7.00 pm when she was in her house watching television, the door bell rang. On opening the door, she noticed one person standing at the door of her flat with a brown colour envelope in his hand. The said person enquired whether the said house belongs to Yogesh, to which PW2 answered in the affirmative. Suddenly, the said person pushed the door of the flat and entered inside the flat. Three persons followed him. They closed the door of her flat. Out of those persons, two persons went inside the bedroom; one person took out the knife and threatened to kill PW2, her husband and son in case she raises an alarm. The said person also asked her as to where the cash amount was kept and demanded the keys of the almirah. PW2-Karuna handed over the keys of almirah to the person who was holding a knife in his hand. He opened the almirah and asked PW2 as to where the cash amount was kept. PW2 pointed out the drawer in the cupboard of the almirah. One person took cash amount from the drawer and other person kept the cash in an empty pillow cover. The person who was holding knife removed golden bangles, diamond locket with golden chain from the person of PW2. The person who kept the cash amount in the pillow cover took out two chunnis from her almirah and tied both of her hands and legs. Thereafter, that person tried to gag her mouth by means of an adhesive tape. However as PW 2 said that she would not shout, all of them fled away. While leaving, the accused threatened that they would kill her husband and son if she lodges a report. After about two minutes PW2 somehow untied herself and went to ::: Uploaded on - 09/07/2018 ::: Downloaded on - 10/07/2018 23:15:30 ::: Appeal.154.18+ 10 balcony of kitchen of her flat and shouted as, 'Chor Pakdo, Chor Pakdo'. PW2 stated that the persons who were inside her flat, fled away in a red colur Indica car. On hearing her shouts, the persons from her neighbourhood gathered at that place. Her son returned home after playing basketball. Her son informed the incident to her husband telephonically. Thereafter all of them went to Police Station and PW2 lodged the complaint against the accused persons (Exh.85). PW2 stated that she had given description of the accused persons to the police while lodging her complaint. She had also informed the police about the theft of cash amount of Rs. 4,25,500/- 20 watches, Samsung mobile, passport, election card, Adhar card, etc.
10. On the point of TI parade in respect of accused persons, PW2-Karuna stated that on 24.1.2014, she was called by police at Central Jail, Nagpur. One Magistrate arranged the TI parade. 10 persons were kept standing in one room. The Magistrate arranged four rounds of the parade. During identification parade, PW2 identified accused no.1 and one person as the accused. She identified accused no.1- Sunil Bhada and accused no.2-Arvind Dahiwade in the Court. She also identified her ornaments in the Court (articles 1A to 1G and I and J).
11. During the cross-examination, PW2-Karuna categorically stated that she knows the difference between general man and Sardar. At the time of identification 5 to 6 sardars were kept standing and the accused was also kept standing, when she entered the room. The said testimony of PW2 shows that in the TI parade out of 5 Sardars she ::: Uploaded on - 09/07/2018 ::: Downloaded on - 10/07/2018 23:15:30 ::: Appeal.154.18+ 11 identified the accused no.1-Sunil. Significantly, in the complaint (Exh.85), there is no reference to sardar. PW2 further stated that police had been to her house so as to draw sketches of the accused persons and the police had prepared 2 to 3 sketches. According to her, the sketches were similar to that of the accused persons. Apart from that, there is no cross-examination to PW2 with regard to the TI parade. On the point of identifying the articles, PW2 stated in her cross-examination that police showed her articles one by one and she identified them accordingly. Meticulous scrutiny of the testimony of PW 2-Karuna indicates that according to PW 2 about four persons entered inside her house on the date of the incident and out of them, she identified accused no.1-Sunil in the parade as well as in the Court. Significantly, PW2 has not attributed any role to accused no.1-Sunil. So far as accused no.2-Arvind is concerned, it would not be out of place to mention here that PW2 has directly identified him in the court, however, she failed to identify the said accused in the TI parade.
12. The testimony of PW6-Bhagwan Dongre, who is Watchman of the building, indicates that on the date of the incident, when he was on duty, he noticed one red colour four-wheeler entered through the main gate of the building. He stopped the vehicle. He stated that as there were black glasses affixed in the said vehicle, it was not visible as to how many persons were sitting inside the vehicle. On enquiry, those persons lowered down the window glasses and told him they wanted to go to the house of Bang in Hindi language. PW6-Bhagwan directed them to park the said vehicle at the back side of the building. However those persons parked the vehicle in front of the main ::: Uploaded on - 09/07/2018 ::: Downloaded on - 10/07/2018 23:15:30 ::: Appeal.154.18+ 12 gate and subsequently they went towards back side of the building for parking the vehicle. PW6 stated that in the meantime, he came on main gate of the building and after some time, he saw 4 to 5 persons running away from the building covering their faces by means of scarves. At that time he heard the cries of PW2-Karuna saying as 'Bhaiya Chor, Bhaiya chor'. Therefore he sounded whistle and cried 'chor, chor'. However all the accused persons fled away in the said vehicle on the spur of the moment. The testimony of PW 6 does not throw any light on the identification of the accused persons and, therefore, it is of no assistance to the prosecution case.
13. PW4-Rajkumar Bang, was examined in order to prove the spot panchnama of the place of incident. According to PW4 the spot panchnama was recorded in his presence. All the articles were scattered in the flat. The Panchnamas were prepare at Exh.99 and 100 respectively.
14. The testimony of the Investigating Officer, PSI Babagiri Goswami (PW9) indicates that cash amount was recovered from the all accused persons. He stated that the ornaments and cash amount was taken charge of. However, the testimony of Investigating Officer does not throw any light on the aspect of noting the currency numbers of the cash amount which was taken charge at the instance of accused persons. Significantly, the prosecution has failed to examine any of the panchas on the point of recovery of cash amount and the ornaments at the instance of accused persons. Thus, it is difficult to rely upon the recovery of the cash amount and ornaments from the accused ::: Uploaded on - 09/07/2018 ::: Downloaded on - 10/07/2018 23:15:30 ::: Appeal.154.18+ 13 persons in the absence of non-examination of panch witnesses. It is not clear whether it was the same cash amount which was taken away by the accused persons at the time of the incident. Similarly, with regard to the ornaments which were taken charge at the instance of accused no.4-Kishor, were not put in the test identification of articles. No test identification was conducted with regard to those ornaments. Those articles were identified by PW2-Karuna directly in the Court.
15. Now coming to the test identification parade in respect of accused persons, the evidence of PW10-Trimbak Kamble shows that on 24.1.2014, he conducted the TI parade in respect of accused no.2-Arvind and accused no.3-Nilesh. PW2 was asked to identify the accused persons who entered in her flat and under the point of knife gave threat and robbed her golden jewellery by pointing out the finger towards them. PW2-Karuna did not identify both the accused, namely, Arvind and Nilesh. Thus, accused nos.2 and 3 were not identified by PW2-Karuna in the TI parade. Again, PW 10 requested the jail authority to send 12 dummies having similar complexion with the accused no.1-Sunil and accused no.4 Kihor. The jail authorities then provided 12 dummies having similar complexion of accused no.1-Sunil and accused no.4-Kishor. Accordingly memorandum was prepared. Then PW 10 requested the Jail authority to bring the accused person from the lock up. Accused were asked to change their clothes if they wanted to, however they declined. Thereafter accused persons were asked to take position in the row of dummies. Accused no.1-Sunil took possession in between dummy nos. 2 and 3 and accused no.4-Kishor took position between dummy nos. 4 and 5. ::: Uploaded on - 09/07/2018 ::: Downloaded on - 10/07/2018 23:15:30 :::
Appeal.154.18+ 14 PW2-Karuna was asked to identify the culprits. At that time, PW2 identified both accused persons by pointing out fingers towards accused no.1-Sunil and accused no.4-Kishor. During the cross-examination, PW10 stated that he had not recorded statements of any of the witnesses in concern with the identification parade. He had not recorded their statement explaining whether they had seen the accused persons earlier anywhere or shown by the police. PW10 stated that accused no.10-Sunil is Sikh Sardar. The dummies who were provided by the jail authority for identification parade of Sunil and Kishor in that dummy persons, some of the persons were Sikh (Sardar). PW10 however admitted in his memorandum that he had not referred in front of the name of dummies either Sikh or Sardar. PW10 stated that he is well aware about the Manual of identification parade so also the notifications issued by the Bombay High Court with regard to conducting of the TI parade. He stated that he is aware of the guidelines issued by the State in that regard. PW10 however stated that he had not referred the names of the persons who had brought the accused persons in the parade. He had not asked the witnesses whether they had seen the photographs of the accused persons any time earlier. PW10 admitted that he had not mentioned in the memorandum of parade that the accused persons have right to engage an Advocate at the time of conducting the parade. He stated that when the TI parade was conducted at that time the dummies were of similar complexion however he had not mentioned weight, height and complexion of the dummy persons who were placed in the TI parade and had not made any mention in that regard in the memorandum. PW 10 fairly admitted that dummies who were called for TI parade were not having similar complexion with the accused persons. He stated ::: Uploaded on - 09/07/2018 ::: Downloaded on - 10/07/2018 23:15:30 ::: Appeal.154.18+ 15 that at the time of TI parade the lady police constable had brought PW2 in the TI parade room. PW10 finally admitted that he had not followed the guidelines issued by the State.
16. Careful scrutiny of the evidence of PW10 reveals that he had not conducted the TI parade as per the norms and specifications mentioned in the High Court Criminal Manual. Similarly, he has not followed the guidelines issued by the State Government. From the testimony of PW 2, it appears that accused no.1-Sunil appears to be from Sikh community and he is a Sardar, having beard. The description mentioned in the complaint shows that a culprit was having a beard, however, the description of hair was that it was curly. There was no reference of long hair or of wearing turban or being a Sardar. Even the testimony of PW10 does not show that accused no.1 was a Sardar and he was kept in the TI parade where the dummies were Sardars. If that was the position, PW10 should have kept the said accused person along with other Sardars and he should have conducted a separate TI parade with regard to the accused no.1, who is a Sardar. However, the memorandum of TI parade does not make a reference of Sardars in the list of dummies. It appears that PW10 had selected a few dummies who were Sardars and few others who were not Sardars and has placed two accused persons i.e. accused no.1- Sunil, who is a Sardar and accused no.4-Kishor, who is not a Sardar in the same TI parade. The accused no.1 was Sardar whereas accused no.4 was not a Sardar. There is no mention in the memorandum that accused nos.1 and 4 possess similar height, complexion and physic. The dummies in the parade were conspicuously different than ::: Uploaded on - 09/07/2018 ::: Downloaded on - 10/07/2018 23:15:30 ::: Appeal.154.18+ 16 the accused no.1. It was, therefore, easy to identify the accused no.1. Thus, it is crystal clear that PW10 had not followed the guidelines. PW10 also failed to verify whether the witnesses had opportunity to see the accused persons after their arrest and prior to conducting TI parade. Even the memorandum of TI parade does not reveal that PW10 had verified whether the photographs of the accused persons were shown to the witnesses prior to conducting the TI parade. Thus, the entire TI parade stands vitiated.
17. In the case of Dharmendra laxman Sahare vs. The State of Maharashtra, reported in 2014 All MR(Cri) 3196, the Division Bench of this Court has issued guidelines with regard to TI parade. Para no.16 thereof reads as under :-
"16. Criminal Manual contains guidelines about "Identification Parades". The guidelines are contained in circular of Home Department, having No. MIS.1054/84588 dated 22.04.1955. It is stated that these guidelines are to be adhered to and that the same are not exhaustive. The exercise of discretion by the officer holding identification parade in this respect is declared to be the sole criterion.The guidelines state that witnesses should be prevented from seeing the suspect before he is paraded with other persons. The witnesses who have previously seen photograph or description of the suspect, should not be led in identifying the suspect by reason of their recollection of the photograph or description. The suspect should be placed amongst persons (if practicable eight or more), who are as far as possible of the same age, height, general appearance (including standard of dress and grooming) and position in life. The suspect should be allowed to select his own position in the line and should be asked expressly, if he has any objection to the persons present with him or the arrangements made. He needs to be informed that his Advocate can remain present at such parade. ::: Uploaded on - 09/07/2018 ::: Downloaded on - 10/07/2018 23:15:30 :::
Appeal.154.18+ 17 The suspect is also free to change his position after each witness leaves the room. The stage at which Executive Magistrate has to commence writing the memorandum is also indicated. Such a memorandum, has to mention that except the persons in line in parade and two respectable persons, nobody else was allowed to remain in the room and all police officers and constables were asked to withdraw. The name of respectable person who fetches the accused from lock up must be indicated and the fact that identifying persons were in different from and they could not see him and when he was brought from lock up to the said room, should also be noted."
In the instant case, no guidelines are followed by the Executive Magistrate in its right perspective.
18. Thus, the identification does not inspire confidence for the simple reason that accused no.1-Sunil and accused No.4-Kishor were not similar in height, complexion, physic, age and were put in the same TI parade and PW2 claims to have identified the accused in the said parade. The parade itself seems to be faulty.
19. On the point of identification of the articles, the prosecution has not led convincing evidence with regard to the identification of the articles. The currency number of the cash amount is not verified by the Investigating officer. The panchas in respect of the recovery of cash amount are not examined by the prosecution. The ornaments are not properly identified by the witnesses as the same articles removed from the house of the complainant. Those articles were not having special identification marks so that the ::: Uploaded on - 09/07/2018 ::: Downloaded on - 10/07/2018 23:15:30 ::: Appeal.154.18+ 18 witness could identify. No doubt, the identification of articles by the witness on the basis of his impression of the articles because of its user by him or her has been recognized, but then for that purpose there must be a procedure followed for identification. No such procedure for identification of articles was followed. The only evidence on record is that of PW9 indicating that those articles were shown to the complainant and were identified by her. She might have identified the same on the basis that she must be having impression in her mind because she was the user of those articles. However, it was necessary to hold identification of the articles by keeping those articles along with similar type of articles. In the absence of that, there is no substance in simply identifying the articles. In view thereof it cannot be said that those articles were the same articles in respect of which the dacoity had taken place, particularly when no recovery of the articles at the instance of accused has been proved by the prosecution.
20. Thus, the prosecution has utterly failed to prove the case beyond reasonable doubt that the accused persons had committed the offence as alleged. The learned trial Judge should have considered all these aspects in its right perspective. Hence the order :-
ORDER
i) All above-referred Criminal Appeals are allowed.
ii) The impugned judgment and order dated 27.02.2018 passed by the learned Additional Sessions Judge-3,Nagpur in Sessions Trial No. 160/2014 is quashed and set aside. The appellants/accused nos.1 to 7 are acquitted of the offence punishable under section 394 r/ws.109 of the Indian Penal Code accused nos. 1 to 4 of offence u/s 452 ::: Uploaded on - 09/07/2018 ::: Downloaded on - 10/07/2018 23:15:30 ::: Appeal.154.18+ 19 r/ws.34; accused nos. 1 to 4 of offence 342 r/ws.34, accused nos. 1 to 4 of offence 506 r/ws.34 along with fine amount.
iii) All the accused/appellants are in jail. They be set at liberty forthwith, if not required in any other case.
iv) Muddemal property be dealt with as directed by the trial Court after the appeal period is over.
JUDGE sahare ::: Uploaded on - 09/07/2018 ::: Downloaded on - 10/07/2018 23:15:30 :::