dgm gm gm IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE APPELLATE APPELLATE SIDE CRIMINAL JURISDICTION SIDE CRIMINAL JURISDICTION SIDE CRIMINAL JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPEAL NO.233 OF 2003 APPEAL NO.233 OF 2003 APPEAL NO.233 OF 2003 1. Ismail @ Salim Javed Yusuf Shaikh aged about 25 years, Indian inhabitant of Mumbai, resident of MHADA Colony, Shiv-Shakti Chawl, Room No.D-1, Gorai Road,Borivali(West), Mumbai 400 092. 2. Kisan @ Soma @ Akash Rathod, aged about 25 years, Indian inhabitant, resident of Mahatma Phule Nagar, Zhopadpatti, Opp.M.H.B.Colony, Gorai Road, Borivali(West), Mumbai 400 092. Appellants (Yerwada Central Prison) (Ori.Accused Nos.1 & 2) Vs. The State of Maharashtra Respondent. (at the instance of D.C.B.,C.I.D., Mumbai). Mr.M.S.Mohite for the Appellants. Mrs.P.H.Kantharia, APP for the State. CORAM CORAM CORAM : BILAL NAZKI & : BILAL NAZKI & : BILAL NAZKI & ANOOP ANOOP ANOOP V.MOHTA,JJ. V.MOHTA,JJ. V.MOHTA,JJ. DATE DATE DATE OF RESERVING THE JUDGMENT : 15/01/2009 OF RESERVING THE JUDGMENT : 15/01/2009 OF RESERVING THE JUDGMENT : 15/01/2009 DATE DATE DATE OF PRONOUNCING THE JUDGMENT: 02/02/2009. OF PRONOUNCING THE JUDGMENT: 02/02/2009. OF PRONOUNCING THE JUDGMENT: 02/02/2009. JUDGMENT JUDGMENT JUDGMENT (Per Anoop V. Mohta,J.) (Per Anoop V. Mohta,J.) (Per Anoop V. Mohta,J.) The Appellants (accused nos.1 & 2) have been convicted for offences under Section 302, 120B and 34 of Indian Penal Code (IPC) by the judgment and order dated 27.11.2002 in Sessions Case No.173/1999 and Sessions Case No.1336/1999 passed by the learned Additional Sessions Judge, Greater Mumbai and thereby ( 2 ) they have been sentenced to suffer imprisonment for life without any fine. Therefore, this Appeal. 2. As per prosecution, on 8.10.1998 at about 8.45 p.m. one Shri Bharat Shah (the deceased), entered Raza Communication Centre, near Juma Masjid, Shaikh Memon Street, Mumbai-400002. An owner of a tea stall, Mr.Prasanna Hegde Shetty was leaving the said STD booth. After making ISD call, while paying phone call bill at counter, three unknown persons entered into said STD both possessing fire arms and fired at the deceased. He succumbed to the injuries on the spot. The duty officer of L.T.Marg Police Station, received message from control room that firing incident took place at Mangaldas Market, near Juma Masjid in front of Crawford Market. 3. On receiving the said message, immediately the police rushed to the place of offence within 5 minutes, and were noticed that one person is lying in pool of blood and sustained injuries of fire arms. The police started inquiry and recorded complaint lodged by Ataullah Khan (PW 1) and on that basis registered an offence bearing C.R.No.396/1998 of L.T. Marg Police Station u/s. 302 r/w 34 of I.P.C. and Sections 3, 25 of Arms Act against the unknown ( 3 ) persons. 4. After conclusion of investigation, the police filed charge sheet against both the appellants before Additional C.M.M. 3rd Court at Esplanade, Mumbai on 22.1.1999. Some time in July, 1999, on an information, accused Vikram and Sanjay were arrested under the Arms Act at Ahmedabad. After completion of investigation on 11.10.1999 a supplementary chargesheet was filed. 5. Both the accused were tried by the Sessions Court, Mumbai. The statements of the accused were recorded under Section 313 of Code of Criminal Procedure (Cr.P.C.). All the accused pleaded not guilty. The prosecution examined eight witnesses. 6. The appellants have been convicted. Accused no.3-Vikram was acquitted, basically on the basis of two eye witnesses namely; PW 1-Ataullah Khan (owner of STD booth) and PW 4-Prasanna Shetty (owner of Tea stall). PW 1-Ataullah Khan has not supported the case of the prosecution. PW 1, the owner of STD booth, where the incident took place. Though lodged the F.I.R. but during the trial, he did not support the prosecution. He was declared hostile. He was working ( 4 ) in the said STD booth when he heard noise of bullet at about 8.45 p.m. At that time, he was making entry in the phone book. The customer who made STD call to Dubai, paid the bill. He fell down in the booth and in view of bleeding injury, blood was oozing from his head. At that time, the tea stall owner (PW 4)-Prasanna was also present in the booth for making telephonic call. According to this witness, at that time, there was a rush in the STD booth. PW 4 after making phone call, paid phone bill and left the STD booth. Within five minutes, the police arrived and made inquiry and recorded his statement. The injured was taken to J.J.hospital. This witness had not given description of suspects at the time of lodging complaint. Therefore, stated that false descriptions were recorded by the police in my complaint. 7. The complainant-PW 1 stated that on 6.11.1998 he along with PW 4-Prasanna were taken to Arthur Road Jail for attending identification parade. He could not identify any body. As he was unable to identify the accused and not supported the contents of supplementary statement, he was declared hostile. PW 1, even in the cross-examination, could not support the prosecution. Even as per this witness, he had not seen any accused person as he was sitting in the ( 5 ) booth. PW 4 had already left the booth by making phone call and paying bill. It is clear, therefore, that PW 4-Prasanna was not in STD booth and the deceased/customer was inside the booth. Therefore, this person in no way can be said to be eye witness except to the extent that he saw the deceased fallen down due to bullet injury. There was no occasion for him to see the accused. The evidence of this witness, therefore, in no way is sufficient to connect the accused with the offence. 8. PW 4 is the star witness according to the prosecution. He is the owner of tea stall running in front of STD booth (Razak Communication Centre) which is at a distance of 20 to 25 feet from his tea stall. He stated, " I paid bill of my STD call. After that when I was returning back to my Tea stall and reached outside door of Razak communication center somebody dashed me when I saw backside. I notice 2 to 3 persons shot firing to one person inside Razak communication center. I tried to apprehend assailants but could not succeed.". He stated, "They were firing at a distance of 2 to 3 feet. I saw incident of firing at a distance of about 10 feet.". Therefore, this witness could not see the accused as he saw the backside of two persons who, according to them, were ( 6 ) firing from a distance of 2 to 3 feet. He saw the incident of firing at a distance of about 10 feet. PW 1- the complainant has not even mentioned that he saw someone firing at the deceased. He could have seen someone firing as he heard the sound like cracker. Therefore, even at the time of firing, he could only see the backside of the accused. This witness could not specify against whom he had dashed. It also means that accused/assailants were not inside the booth except the deceased and the complainant. This witness has not stated how many assailants were firing and with what weapon. In the cross-examination he admits that he could not even see the assailants who were running from the place of occurrence. The doctor’s medical report-PW 3, indicates that there was no tattooing or singing around the bullet wounds that in case of fire from 2 to 3 feet the same is bound to be found. Therefore, the case of firing from the distance of 2 to 3 feet is unbelievable. It is also for the reason that Razak communication center is situated in the said passage of Ishwar market. The door to enter is situated in a passage which is 4 to 5 feet wide. The entire footpath outside is surrounded by various shops. The incident took place at about 8.45 p.m. at night and must have lasted for a short period. It is difficult to accept, therefore, the ( 7 ) case of PW 4 that he saw all the assailants correctly. There is no other corroborative witness to this incident except PW-4. It appears that PW 4 had just a fleeting glimpses of the accused. PW-1 declared hostile as not substantial to have identified the accused in I-parade. PW-1 stated that when he saw the falling injured in booth, Shetty was standing at its tea stall as he had already left the booth. PW-4 had witnessed incidence from a distance that itself is not sufficient to connect the accused with the crime. The learned Judge has agreed and has recorded that the witness might have not seen the suspect while running from the place of offence after leaving the said booth. The medical evidence PW-3 also does not support the evidence of PW-4 that the firing took place from 2 to 3 feet. 9. PW-4 is an important witness as according to the prosecution, he identified the accused in the Identification parade. Importantly in the cross-examination he admitted that "It is true that I could not saw assailants who were running from the place of offence. Within a minute or one and half minute the alleged incident of firing taken place. And within that time assailants started running the place. I was available in Bombay from the date of ( 8 ) incident till attending Identification parade, and thereafter till 18-9-99." It means, this witness could not see the assailants clearly when they were firing and when they were running from the place of offence as a within a minute or half the alleged incident of firing took place. He stated that when he was called for identification parade on 06/11/1998 at Arthur Road Jail, he was harassed till 4.30 p.m. He identified two accused out of 13 to 14 persons standing in a hall. There he came to know the names of both the accused. He also stated "I am having cross term with L.T.Marg Police." It appears, therefore, that this PW-4 was either forced and / or compelled to depose in favour of the prosecution. The identification parade was held on 06/11/1998. It was one month after the date of incident. None of the two independent panchas, who were present during the identification parade, were examined. There is no independent corroboration to the identification evidence. This is clear even from the evidence of PW-5 Sharad Vichare (SEO). PW-4 also nowhere mentioned the present any panchas either in the office or in the jail. In this back ground, we are of the view that the identification as done in the present case itself is not sufficient to convict the accused as it raises various doubts. As the identification parade itself ( 9 ) appears to be conducted and not in accordance with the prescribed procedures, it was held to be breaches of various mandatory provisions. 10. PW-5, Special Executive Officer (SEO), who conducted the identification parade as noted apart from two independent panchas, he admitted that "it is true that I used pancha provided by police and dummies provided by Jailor for holding parade and I myself not called either panch or dummies". "It is true that both the suspects fetched in parade i.e. Accused No.1 and 2 Ismail and Kisan are dissimilar by all respect." "I did not come across with guide-lines issued by the Hon’ble High Court that two dissimilar suspect should not fetch in one parade." " It is true that one of the important factor asking both the suspects and witness as to whether they have shown to each other while in police custody in the office of DCB CID not recorded by me in I Parade, panchanama Exh. 31". 11. We have noted that even as per the evidence of PW-5, he with eye-witnesses PW-1 and PW-4 had gone to the jail along with I.O. P.W.7 (P.I.Ghuge for the T.I.parade." There was no precaution taken to see that eye-witnesses who were accompanied by the I.O. were to sit in a different room from where they would not ( 10 ) see the accused being brought into the room for holding I.P. parade. He also admits "it is true that one of the important factor to the effect that precaution taken by me that witnesses should not see the suspects before attending parade, not recorded in I parade panchanama. There was no steps taken to see that PW-1 completed his part of identification parade and there is nothing to show that both the witnesses PW-1 and PW-4 had no opportunity to exchange the information about the suspects before PW-4 were made to identify the suspects- accused during the parade. There is also nothing to show that the accused were given opportunity to change their place in the line of dummies. Both were standing in the same line, at the same place where both the witnesses identified them. In Ramcharan Bhudiram Gupta & Ors. Vs. The State of Ramcharan Bhudiram Gupta & Ors. Vs. The State of Ramcharan Bhudiram Gupta & Ors. Vs. The State of Maharashtra, Maharashtra, Maharashtra, 1995(1) All MR 122, 1995(1) All MR 122, 1995(1) All MR 122, the Division Bench of Bombay High Court has held that referring to Section 9 of Evidence Act dealing with the facet of the identification parade, it is settled that the evidence of identification can only be relied upon if all the chances of suspects being shown to witnesses prior to the test of Identification are eliminated and precautions were taken to ensure that the accused was not seen by any outsider. The procedure prescribed in the High Court Criminal Manual with this regard should ( 11 ) be strictly complied with. (Vilas Vasantrao Patil Vs. (Vilas Vasantrao Patil Vs. (Vilas Vasantrao Patil Vs. The The The State of Maharashtra, 1996(1) ALL MR 513) State of Maharashtra, 1996(1) ALL MR 513) State of Maharashtra, 1996(1) ALL MR 513). 12. Accused No.1 was arrested on 25/10/1998 and Accused No.2 was arrested on 30/10/1998. The identification parade held on 06/11/1998. Therefore, there is no much delay but still the order of conviction based upon the evidence of PW-4 and PW-5 in the present fact is unsustainable as the evidence of PW-4 is independently not sufficient to convict the accused with crime. Accused No.3 is already acquitted by the said Judgment. Taking all this into account the identification evidence against the Appellants does not inspire confidence, raises various doubts. The identification parade is just an aid to the investigation. It cannot be relied solely to convict accused. 13. PW-6, Rajan Dinanath Dhoble was attached to L.T.Marg Police Station as Crime P.I.. On receipt of message about firing incident they rushed to the spot within 5 minutes. He recorded inquest cum spot panchanama without recording injuries on the dead body (Exhibit 19) and forwarded the dead body to J.J.Hospital. He made inquiry, recorded the complaint lodged by the Ataulla and registered the offence ( 12 ) against 3 unknown persons. He recorded various statements. On 23/10/1998, the investigation was handed over to the DCB CID. 14. Though the prosecution has recovered some weapons from the accused no charges under the Arms Act were framed against the Accused in the present case, but registered two cases separately. No panchanama of recovery of any weapons at the instance of the accused brought on record. No panchas examined to prove recovery of any weapon from the accused. 15. PW-7 and PW-8 stated that as recovery of fire arm at the instance of accused separate cases are registered under Section 3 and 25 of the Arms Act and separate charge-sheet filed by concern police station. Except this, there is nothing brought on record to complete the links that those weapons were used for committing offence in question. 16. In a case and situation of murder by firing, the investigating agency needs to take various additional precautions and measures to collect all possible material and evidence to link the accused with the crime. Any lacuna gives benefit of doubt to the accused, in absence of direct evidence or eye-witnesses. ( 13 ) The conviction based upon the circumstantial evidence needs unbroken, corroborative and cogent evidence as law stands today. 17. There was no independent eye-witness inspite of the fact that the incident took place in a crowded locality surrounded by several shops. The motive so referred, even if any, is based upon the alleged threat, which was prior to the 2 years of the incident. There is nothing to link the accused with particular group. Therefore, taking all this into account, we see there is no clear and cogent evidence to connect the accused, basically for want of missing links as recorded above. There is nothing to prove beyond the reasonable doubt that the accused and no one else committed the murder. 18. Resultantly, Appeal is allowed. The judgment and order dated 27.11.2002 in Sessions Case No.173/1999 and Sessions Case No.1336/1999 passed by the learned Additional Sessions Judge, Greater Bombay is quashed and set aside. The Appellant no.1-Ismail @ Salim Javed Yusuf Shaikh and Appellant No.2-Kisan @ Soma @ Akash Rathod be released forthwith, if not required in any other case. (ANOOP (ANOOP (ANOOP V. MOHTA, J.) V. MOHTA, J.) V. MOHTA, J.) (BILAL (BILAL (BILAL NAZKI, J.) NAZKI, J.) NAZKI, J.)