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20. P.W. 4. was attached to Agripada police station from 1984 to 1988 as police havaldar and at the relevant time was assigned the duty as lock up clerk. Said lock up is known at Satrasta lock up. The witness had alternat duty at night and at day time every week. Duty of the witness was to receive prisoners in custody, hand them over to the cell and make payment towards bhatta and make necessary entries in the relevant registers. This witness was on duty on the night of 4.3.1987 and his duty hours were 5 p.m. on 4.3.1987 to 9 a.m. on 5.3.1987. The witness took round in the lock up at 5 p.m. on 4.3.1987, he took the signatures of Inspector (Administration) on the concerned registers at about 9 p.m. and returned to the lock up. He took entries in the concerned registers immediately after midnight regarding the date of 5.3.1987. He completed the work of taking entries in the relevant registers at about 3 a.m. on 5.3.1987. He was doing this work on the ground floor of the office of the ACP and he was resting after completion of work. At about 3.30 a.m. he heard the noise like crackers coming from lock up side. He heard the big noise like crackers or the explosion of bombs. The witness turned back and contacted writer of Agripada Police station Shri Dhade on telephone. He informed Shri Dhade that some gundas are attacking the lock up and exploding bombs and he should send duty constables with officer to the lock up immediately. Then the witness slated that he started contacting control room on telephone. One person came in his front and said in Hindi 'telephone se haat ja' (Get away from the telephone). The witness had stated that the person also said that if the witness does not get moved he will throw abomb. The witness started climbing up the steps towards the ACP office. At the same time one of the constables from Nagpur started coming down by the same stair case. The person who had threatened the witness threw a bomb which struck the constable from Nagpur. The said constable sustained severe bleeding injuries. The witness immediately turned back and saw the same person who had thrown the bomb. The said person cut the telephone wire. The age of that person was around 25 yrs. He was wearing grey coloured jerkin. He had worn white coloured full pant. He left the place after cutting telephone wire. Thereafter the witness went to home guard office. The said office is at a distance of about 40 feet from the office of ACP. Another police constable also arrived in the home guard office, From there the witness informed the police control room on telephone about the incident and started coming back towards the lock up side. At that time they heard the shouting noise of many persons as 'Bajrang Bali ki Jai". When he reached the lock up everything was quiet. Gharte informed him that some assailants attacked the lock up forcibly entered the lock up, emploded the bombs and killed Babu Reshim. He also informed the witness that the assailants also fired towards the lock up. The witness entered the lock up and saw injured Babu Reshim in a sitting position inside the lock up. One bomb of the size of coconut was lying near the body of Babu Reshim. Babu Reshim was dead. P.I. Bhalerao arrived at the spot and started drawing panchanama. He started recording their statement. Witness was called at Arthur Road jail on 3.1.1996 for identification parade. In the parade witness identified accused No. 4. He identified accused as the person who had thrown the bomb towards the constable from Nagpur at the time of the incident. The witness stated that he also identified him as an assailant who had cut the telephone wire. The witness in the cross examination admitted that he could see the smoke only towards the lock up side and he could not see anything else on account of smoke. He could not see any police officer who were in the said lock up on account of smoke. The witness has further admitted that at that time person who cut the 'ielephone wire was unknown to him. The witness stated that he does not know whether in the year 1985 in crime No. 227 of 1985 at Agripada Police station accused Vinod Bhika Maria was involved or not. The witness stated that he does not remember whether he had written the name of Bansi in the lock up 'register. The witness also did not remember whether he had written the name of Kishore Maheshkar. The witness stated that he never saw accused Ravi Bansi and accused Kishore in the lock up. The witness denied the suggestion that accused Ravi Bansi and Kishore were detained in or about June 1985. The witness stated that in June, 1985 he was sick. The witness stated that he does not know whether in C.R. No. 564 of Agripada Police Station the accused Ravi, Kishore and Vinod were detained in the lock up and that he had seen accused Ravi, Kishore and Vinod detained in the lock up in December, 1986. The witness also staled that he does not know whether on or about 10.1.1987 the said accused were detained in respect of C.R. No. 22 of 1987 of Agripada police station. The witness denied the suggestion that from January till the end of February, 1 987 these accused were detained in the lock up and this witness had seen them in the lock up. The witness stated that he had heard the name of Vijay Uttckar. He also knew him as gunda, but he had not seen him at any time before the incident. The witness denied that he had seen the name and photograph of the accused Ravi, Kishore and Vinod in mavali register. He stated that he was not shown their photographs. He has further stated that in the open place there is no electric pole as such there is no lighting arrangement and there is no electricity arrangement in guard cabin. The witness stated that he had gone in front of the lock up after the incident. There were electric lights. Electric lights were on the ground and first floor. In further cross examination the witness has stated that he identified accused No. 4 as the person who cut the telephone wire. The witness could not explain as to why it is not so recorded in the memorandum of test identification. The witness stated that he has not identified this person as person who threw the bomb at him on 5.3.1987. The witness could not state why the Special Executive Magistrate recorded that the witness identified the person as the person who threw bomb at the witness. The witness has stated that he told the police that person cut the telephone wire but he could not assign any reason why it was not mentioned in memorandum that this is the person who cut off the telephone wire. The witness could not assign any reason why it was so recorded in his supplementary statement.

21. The fourth and the last eye witness is P.W. 21 Mohd. Shakil Mohd. Ibrahim Ansari. He has stated that on 4.3.1987 he was in the lock up at Satrasta. He was in the 2nd room on the ground floor. There were about 4/5 other suspects with him. He was playing cards in the passage of the cell. Havaldar on duty asked them to sleep. The witness did not sleep because he heard sound of explosion from the road side. One bomb was exploded near the leg of constable having rifle. The constable holding rifle ran away and witness also ran inside the room out of fear. The witness saw smoke due to bomb explosion. Lights went off due to explosion. Thereafter he head the noise of firing and explosion of bombs. Thereafter the witness has stated that the police came and his statement was recorded. He heard firing by the side of his room. He saw that the person in the adjoining room had died. The witness stated that he did not see any person throwing bombs or any person who was firing. The witness was again called at Matunga police station for identification of persons who ran away. The witness identified constable who ran away with rifle. The witness stated that there is nobody in the court whom he had identified. At that stage Learned Public Prosecutor declared the witness as hostile and sought permission to cross examine him. The witness has stated that the statement recorded by the police was not read over and explained to him. The witness stated that Vijay Kanjari is known to him but he docs not have acquaintance with Vija Kanjari and Kisha. In the further cross-examination the witness has stated that it is true that he was hearing the abuses from the neighbouring room that Babu Reshim uttered "Vijay Ye Achha Nahin Hai Jo Kuch Hai Bhar Hai". The witness has admitted that he was called at DCB CID Crime Branch for test identification parade and out of the persons who were standing in front of the Special Executive Magistrate he had identified three persons. However, he stated that it is not correct that he had seen persons at the time of incident. The witness voluntered; there is danger to his life, if he goes out of the court hall, questioned the witness who will save his life? In the cross examination by the Ld. Advocate for the accused he stated that he heard big explosion sound. He also had seen bomb thrown to the guard room and sentry constable leave his rifle and ran away at that time. Lights in the lock up went off and there was darkness. All police men ran away because of fear. Hurling of bombs and fire was going on for 5 to 10 minutes. The witness also stated that before the test identification parade he was shown the photographs of accused persons. There were two photos of Vijay Uttekar and Vijay Kanjari.

45. The question is what is the effect of showing of photographs. Normally identification parade is held with a view to seeing whether unknown culprits could be identified by the witnesses and if the culprit is already known to the witnesses there is hardly any weight that could be given to the evidence in the identification parade. If the photograph of a particular unknown person-accused is shown prior to the parade obviously subsequent identification by the witness in the identification parade must be held to be worthless as held by the Supreme Court. However, on the basis of the evidence on the record we have come to the conclusion that accused No. 3 was known to the P.W. 2 and accused No. 1 was known to P.W. 12. In these circumstances if the police officers just to ensure earlier identity of accused who were already known to the witnesses and further the said fact was confirmed by holding identification parade soon after the accused were arrested in the facts and circumstances of the case we do not see that it creates any infirmity in the case of the prosecution so far as the identification of accused No. 1 by P.W. 12 and accused No. 3 by P.W. 2 is concerned. We must emphasize the fact that the material on record in our opinion clearly shows that high degree of probability of P.W. 2 knowing the accused No. 3 and P.W. 12 knowing the accused No. 1, the witnesses being police officers attached to the Agripada Police Station and the accused being inmates of the lock up in recent past of the occurrence of the incident in question. However on the very reasoning we have to discard the identification of accused No. 2 by P.W. 2 and for more serious reasons identification of accused No. 4 by P.W. 4 Sawant. So far as the identification of accused No. 2 is concerned admittedly P.W. 2 does not state that he knew accused No. 2 before hand. The name of accused No. 2does not find mention in the earlier statement. In such circumstances if the photograph of accused No. 2 was shown to P.W. 2 which as stated earlier is an admitted position then subsequent identification of accused No. 2 will have to be discarded. So far as accused No. 4 is concerned the case is worst for the prosecution. Accused No. 4 was found in Tihar Jail, Delhi and was brought before the court under production warrant on 23.11.1995 and the test identification parade was held on 3 1.1996 wherein P.W. 4 Sawant has identified accused No. 4. First circumstance which we must take into consideration is that the incident took place in the early hours of 5.3.1987. Sawant does not claim to know the accused No. 4. Thus we find it extremely difficult and hazardous to accept identification of accused No. 4 by P.W. 4 Sawant almost after 9 years. Secondly there is another infirmity even in the identification parade after such a long lapse of time. P.W. 4 Sawant in his evidence stated that he had identified accused No. 4 as a person who had thrown the bomb towards the constable from Nagpur at the time of the incident and that he also identified accused as assailant who had cut the telephone wire whereas PW. 22 the Executive Magistrate Choubal has stated that P.W. 4 Sawant identified accused No. 4 as the person who threw the bomb on Sawant on 5.3.1987 when he was on duty at Jacob Circle Police lock up. In his supplementary statement of P.W. 4 Sawant recorded after identification parade he has stated that he identified accused No. 4 as one of the accused persons whom he had seen throwing bomb on the lock up. All these contradictions are proved. In these circumstances we find it extremely hazardous to accept the evidence of identification in respect of accused No. 4 on the testimony of P.W 4 Sawant.