1 SNS IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CRIMINAL JURISDICTION CRIMINAL APPEAL NO.395 OF 1992 Subhash Mahadeo Gaikwad of Bombay at present in Arthur Road Jail, Bombay ...Appellant. v. The State of Maharashtra (At the instance of Sakinaka Police Station) ...Respondents. Mr. Ganesh Bhujbal appointed advocate for the Appellant. Smt.P.P.Bhosale, APP for the Respondent/State. CORAM : J.H. BHATIA, J. DATED : DECEMBER 9, 2010. ORAL JUDGMENT: 1 The present appellant, who was accused no.1 in Sessions Case No.800 of 1989, has by this appeal challenged his conviction for the offences punishable under Sections 395 r/w section 397 of the I.P.C. and the sentence to undergo R.I. for seven year, awarded by the learned Additional Sessions Judge by the judgment dated 29th July, 1992. 2 Prosecution case, in brief is that, on 2.5.1998, shooting of film 'Panch Papi' was being held in the quarry at Chandivali. There were two units for shooting the film. One was on the hill top and another was 2 in the vicinity of Jatinseth's quarry. Complainant Akbar Bakshi alongwith his unit consisting of about 22 persons was in the quarry for shooting. Complainant P.W.3 Akbar was professional fight director for that film. At about 4.30 p.m. when the shooting of the film was in progress, 7 persons armed with swords, guptis, razors, etc. came there and surrounded the said team of the film and asked as to who was Mansingh. They were told that nobody in the unit was Mansingh. One of those persons armed with Gupti pointed out the said Gupti on the throat of Akbar and asked him to stop shooting. He also tried to assault with Gupti. Akbar gave a fist blow to him due to which he fell down. At that time, two persons also armed with Gupti rushed towards Akbar and started threatening all the members of the unit with the said Gupti. They also asked those persons to keep quiet and to sit down. One of them, who was armed with sword, snatched one envelope from the pocket of Kaushik Raj, who was assistant director. He threatened Akbar and removed an amount of Rs.3,200/- from his pocket and telephone diary. They also removed some cash from the person of Mangesh Ghadge. A person armed with sword also removed cash from other members of the unit including P.W.1 Sudhir Sharma. After snatching cash and other valuable articles, culprits went away. In the said incident, gold chain, 3 gold ring, wrist watch and cash of Rs.26,450/- was taken away by the culprits. Report of the incident, Ex.12 was lodged by P.W.3 Akbar at Sakinaka Police Station in the evening of the same day. 3 Accused nos.1 and 2 and one more boy, who was juvenile, were arrested on 2nd June, 1988. Test Identification Parade was held in a room within the campus of Sakinaka Police Station by Special Executive Magistrate. During that test identification parade, accused no. 1 Subhash and the accused no.2 Ramdas and third accused, who was juvenile, were identified as the persons, who had participated in the commission of offence. It was revealed that accused no.1 was armed with iron rod and accused no.2 was armed with Gupti. Later on, accused no.3 was also identified as the person, who was holding sword during the test identification parade. Three other culprits out of the group of 7 could never be arrested. Out of the four accused persons, who were arrested, the charge-sheet was filed against the accused nos.1,2 and 3. As far as juvenile was concerned, he was dealt separately. Case was committed to the Court of Sessions for trial. 4 Charges under Section 395 r/w Section 397 came to be framed. All the accused pleaded not guilty. On behalf of the prosecution in all 9 witnesses were examined. Several documents were also placed 4 on record. After trial accused no.3 Balu Govind Jadhav, who was allegedly holding the sword and had actually committed the robbery, i.e., snatching cash and other valuable articles was acquitted on the ground that there was discrepancy as to whether he was holding sword or gupti. Accused nos.1 and 2 were convicted under Section 395 r/w 397 and were sentenced to undergo R.I. for 7 years. It appears that accused no.2 did not prefer any appeal. Accused no.1 alone has preferred the present appeal challenging conviction and sentence. 5 Heard Mr. Bhujbal, the learned amicus curiae appointed for the accused/appellant to conduct the appeal as well as the learned APP. Mr. Bhujbal tried to point out that evidence of the prosecution witnesses, particularly the eye witnesses, namely P.W.1 Sudhir and P.W.3 Akbar about the identification of the present appellant is not satisfactory and not reliable. According to him, as identification parade was held within the campus of the police station, it should not be relied upon. He further contended that alleged recovery of the iron rod at the instance of the present appellant was from the open space and, therefore, it could not be given much importance. According to him, when the main culprit, i.e., accused no.3, who was also identified as the culprit has been acquitted, there is no reason to convict the present appellant, who had not played 5 any role in the alleged offence. On the other hand, the learned APP contended that the evidence on record is sufficient to establish that the present appellant was member of the gang of seven culprits, who had committed offence of dacoity. She contended that this applicant was also armed with iron rod and iron rod was seized from him. She also tried to support recovery as well as identification parade. 6 Out of the nine witnesses examined by the prosecution, for the purpose of present appellant, evidence of P.W.1 Sudhir and P.W.3 Akbar, who were the eye witnesses, P.W.2 Ashok, who was panch witness, P.W.4 Mohan Kamat, who was Special Executive Magistrate and who conducted test identification parade and P.W.9 PSI Ramdas are material. 7 Evidence of P.W.1 Sudhir and P.W.3 Akbar reveals that shooting of film 'Panch Papi' was going on 2nd May, 1988 in the quarry at Chandivali. There were two units for the purpose of shotting, one unit consisted of 22 members and another unit consisted of 98 members. P.W.1 Sudhir was assistant director and P.W.3 Akbar was fight director for the purpose of shooting of the film. Both of them were in the unit working in the quarry. Shooting was going on since morning. At about 4.30 p.m., about 6 or 7 persons armed with swords, guptis, razors, etc. 6 came there. They enquired from P.W.3 about one person and they were told that said person was not in the unit. After that one of the culprits, who was armed with sword, pointed the sword on the chest of Akbar. However, Akbar pushed him and as a result, that person fell down. At that time one of the culprits went near the camera and rest of them surrounded shooting party pointing their razors, swords, iron rods. Those persons removed all the belongings from Akbar Bakshi. According to P.W.1 Sudhir, one of the assailants put his sword at his right forearm and pulled his gold chain, wrist watch, gold ring and an amount of Rs.1,000/- P.W.3 Akbar deposed that person, who had pointed his sword on his throat removed an amount of Rs.3,200/- and telephone diary from the right side pocket of his pant. After removal of money from the members of the said unit, culprits left the spot. Thereafter, at about 7.15 or 7.20 p.m. P.W.3 Akbar and others went to the Sakinaka police station where P.W.3 Akbar lodged report Ex.12. 8 From the evidence, it appears that accused nos.1 and 2 were arrested and on 2nd June, 1988, test identification parade for accused nos.1, 2 and a juvenile accused Suresh was held by P.W.4 Mohan Kamat Special Executive Magistrate within the campus of Sakinaka police station. During that identification parade, P.W.1 Sudhir and P.W.3 Akbar 7 identified all the three persons. Evidence of P.W.4 Mohan Kamat and Test Identification Parade Memorandum, Ex.15 goes to show that P.W.1 Sudhir and P.W.3 Akbar had identified the accused nos.1 and 2 as the persons, who were holding iron rod and gupti respectively. These two witnesses also identified accused nos.1 and 2 before the Court during the trial. However, during the evidence before the Court, P.W.1 Sudhir did not state specifically that accused nos.1 and 2 were armed with any weapon nor he has stated that accused no.1 was armed with iron rod and accused no.2 was armed with gupti. P.W.3 Akbar deposed that one of them was armed with iron rod and another with gupti but does not recollect who was armed with gupti and who was armed with iron rod. 9 Evidence of P.W.4 Mohan shows that he was requested by PSI Rathod to hold test identification parade and accordingly, he went to Sakinaka police station on 2.6.1988 at about 3.30 p.m. He asked PSI Rathod as to where were the suspects. P.S.I. Rathod showed all the suspects to P.W.4. They were detained in the detection room of the police station. P.W.4 Mohan enquired from PSI as to how many witnesses were coming for the identification parade. PSI Rathod informed that four witnesses were there and those witnesses were made to sit on the bench in the premises of police station. Test identification 8 parade was held in the room of police inspector. According to P.W.4, the said room was at about 100 or 150 paces away from the detection room, where the accused persons were detained. He also noted in the memorandum panchanama that he had first called panch witnesses, then he had selected 18 persons to act as dummies and made them stand in the room where test identification parade was held. Then he asked panch witnesses, one after another, to bring the accused persons. They were accordingly brought in the said room. After that witnesses were called one after another and P.W.1 Sudhir and P.W.3 Akbar identified the accused nos.1 and 2 and 3/juvenile Suresh as the persons, who were involved in the commission of crime. P.W.4 deposed and also recorded in memorandum that he had taken precaution that witnesses, who were to identify the accused persons did not get an opportunity to see the accused persons before coming to the room where test identification parade was held. 10 In view of the fact that all the accused persons were already at the police station and detained in the detection room of the police station and witnesses were also already called there and were made to sit on the bench in police station even before the Magistrate was called, the witnesses had every opportunity to see the accused persons at the police 9 station. P.W.4 Mohan Kamat Special Executive Magistrate could not be in a position to say that before his arrival at the police station, witnesses had no opportunity to see the accused persons or that accused persons were not actually shown to the witnesses. It is important to note that PSI Rathod, who had arranged that test identification parade, was not examined before the Court. P.W.9 PSI Ramdas Bodke was not concerned with test identification parade. He only made recovery of weapons. In view of the fact that test identification parade was held at the police station, where the accused were in police custody and where witnesses were also called even before the Special Executive Magistrate was called for the purpose of holding test identification parade, it is not safe to place reliance on such test identification parade. Even though in the memorandum of test identification parade, it is noted that P.W.1 Sudhir had identified accused no.1 as person, who was holding iron rod and accused no.2 was a person, who was holding gupti, before the Court during the evidence P.W.1 was silent on the subject. He did not state anything as to whether accused nos.1 and 2 were armed with any weapon. Similarly, as per the memorandum of test identification parade, P.W.3 Akbar had identified accused no.1 as person holding iron rod and accused no.2 as a person holding gupti, before the Court he admitted that 10 he could not say, who was holding gupti and who was holding iron rod. It is possible that after period of four years, one may forget such things and some confusion may be there. But in view of the manner in which test identification parade was held, it does not inspire confidence that P.W.1 and 3 had infact correctly identified accused nos.1 and 2 and also that they were armed with particular weapons. 11 The remaining evidence against the accused no.1 is in the form of recovery of iron rod. As per the evidence of P.W.9 PSI Ramdas Bodke and P.W.2 Ashok, who is panch witness, on 4th June, 1988, accused no.1 was in the police custody. In presence of panchas, he stated that he would show weapon which he had kept. Accordingly, memorandum was prepared. Thereafter he led the police party towards the engine room near Khairani quarry. He took out one iron rod from a ditch and it was seized under panchanama, Ex.10. Article 1 is identified as iron rod.. 12 For a moment, even if recovery of the iron rod is believed, that itself is not sufficient to prove the offence and to bring home the guilt to the accused. Evidence of P.W.1 Sudhir and P.W 3 Akbar does not show that any of the culprits had assaulted anybody with the iron rod. Though according to them the culprits were armed with swords, 11 revolvers, guptis, razors and iron rods. However, as stated above, P.W.1 Sudhir does not state before the Court that the present appellant, i.e., accused no.1 was armed with any weapon or iron rod. P.W.3 Akbar has also not stated whether accused no.1 was armed with iron rod or gupti. Further, the manner in which test identification parade was held shows that police had opportunity to show the accused persons to the witnesses at the police station even before the arrival of the Special Executive Magistrate. In view of the circumstances and particularly, when none of the eye witnesses had specifically stated about any role played by the accused no.1 in the commission of offence, I find that prosecution has failed to prove beyond reasonable doubt that the present accused was one of the culprits and that he had participated in the commission of offence of dacoity. Therefore, he is entitled to benefit of doubt. 13 For the aforesaid reasons, appeal is allowed and the impugned order of conviction and sentence is hereby set aside. Appellant/accused is acquitted of the charge . (J.H. BHATIA,J.)