IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.464 OF 2006 Vijay Madhukar Thorat ] age 25 years, residing at ] Block No.407, ‘U’ Wing, ] Lodha Heaven Sankul, ] Dombivali (East), Dist.Thane ] (at present in Kolhapur ] Central Prison) ]..Appellant [Ori.Accused] Vs. State of Maharashtra ] (at the instance of Oshiwara ] Police Station, Mumbai in ] C.R.No.306 of 2002) ]..Respondent .... Ms.Pooja Bhojane Advocate for Appellant Mr.Rajesh More APP for State .... CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. DATE : APRIL 30, 2008 DATE : APRIL 30, 2008 DATE : APRIL 30, 2008 ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. Through this appeal, the appellant-original accused has challenged the judgment and order dated 21.3.2006 passed by the learned 10th Adhoc Additional Sessions Judge, Sewree at Mumbai in Sessions Case No.5 of 2003. By the said judgment and order, the learned Sessions Judge convicted the appellant under Sections 392 and 394 read with Section 34 of IPC and sentenced him to RI for ten years and fine of Rs.10,000/- in default RI for six [- 2 -] months. 2. The prosecution case briefly stated is as under: . The complainant PW 1 Devising Dasana was working in partnership with one Devilal Sain (deceased). Both of them were partners in jewellery business. Every Saturday, they used to visit jewellery shops at Andheri for selling the jewellery and receiving orders and payments. On the day of the incident, P.W. 1 Devising, along with Devilal went to Andheri. They were carrying various gold jewellery items weighing about 6 kgs. of gold and cash of about Rs.3 lakhs received by way of payments. They had visited about 12 jewellery shops and collected money which was due to them from various transactions. Thereafter, they went to Jogeshwari. When they were at Jogeshwari, their Rickshaw stopped at rickshaw stand near railway station, suddenly three persons attacked them. Out of said three persons, one person took out a revolver and held it to the head of Devising. The other persons started snatching away the bag of Devising. Devising was assaulted with chopper on the right shoulder by the said person and said person finally succeeded in [- 3 -] taking away his bag. Thereafter, these persons ran away. At that time, Devising saw Devilal lying on the road about 10 feet away from the Rickshaw. Devilal had sustained bleeding injury. The bag containing jewellery had been snatched from Devilal by the miscreants. Devising removed Devilal to Cooper Hospital, however, Devilal was declared dead on admission. Thereafter, the FIR came to be recorded and investigation commenced. The present appellant came to be apprehended in another case on 19.7.2002. Thereafter, he was arrested in the present case on transfer warrant on 22.7.2002. Test identification parade came to be held on 9.8.2002. Devising was called at Kalyan Jail for identification parade on 9.8.2002. Out of the persons standing in the parade, Devising identified the present appellant who assaulted him and took away his bag containing jewellery and cash. After completion of investigation, the charge sheet came to be filed. In due course, the case was committed to the Court of Sessions. 3. Charge came to be framed against the appellant and other accused under Section 392 of IPC. In the alternative, charge was framed under Sections 394 [- 4 -] and 397 read with Section 34 of IPC and under Section 302 read with Section 34 of IPC for causing death of Devilal Sain. The defence of the appellant was that of total denial and false implication. After going through the evidence adduced by the prosecution, the learned Sessions Judge convicted and sentenced the appellant as stated in paragraph 1 above. Hence, this appeal. 4. I have heard Ms.Pooja Bhojane, the learned advocate for the appellant and Mr.Rajesh More, the learned APP for the State. I have perused the judgment and order passed by the learned Addl. Sessions Judge as well as record pertaining to the present case. After giving my anxious consideration to the matter, I am of the opinion that the learned Addl. Sessions Judge has rightly convicted the appellant under Sections 392, 394 read with Section 34 of IPC. 5. The prosecution case is mainly founded on the evidence of sole eye witness PW 1 Devising who is the complainant in the present case. Devising has stated that he was working in partnership with one Devilal Sain (deceased). Both of them were partners [- 5 -] in jewellery business. Every Saturday, they used to visit jewellery shops at Andheri for selling the jewellery and receiving orders and payments. On the day of the incident, P.W.1 Devising along with Devilal went to Andheri. They were carrying various gold jewellery items weighing about 6 kgs. of gold and cash of about Rs.3 lakhs received by way of payments. They had visited about 12 jewellery shops and collected money which was due to them from various transactions. Thereafter, they went to Jogeshwari. When they were at Jogeshwari, their Rickshaw stopped at rickshaw stand near railway station, suddenly three persons attacked them. Out of three persons, one person took out a revolver and held it to the head of Devising. The other person started snatching away the bag of Devising. Devising was assaulted with chopper on the right shoulder by the said person and said person finally succeeded in taking away his bag. Thereafter, these persons ran away. At that time, Devising saw Devilal was lying on the road about 10 feet away from the Rickshaw. Devilal had sustained bleeding injury. The bag containing jewellery had been snatched from Devilal by the miscreants. Devising removed Devilal to Cooper Hospital, however, Devilal [- 6 -] was declared dead on admission. Devising has given description of two of the accused persons who were near him. He was not able to give description of 3rd miscreant who was responsible for assaulting his partner Devilal (deceased). As the appellant was admittedly not known to the witness prior to the incident, test identification parade came to be held. The said test identification parade was held by P.W.12 Shri.Pande. Devising was called at Kalyan Jail for identification parade on 9.8.2002. Devising identified the present appellant as the person who assaulted him with chopper. 6. It may be stated here that Devising has stated that he did not see the assault on Devilal. He could not state as to who had assaulted Devilal. Devilal had been assaulted at some distance from the complainant. In view of these facts and the other evidence, the learned Addl. Sessions Judge acquitted the accused persons of the offence under Section 302 of IPC. The learned Sessions Judge observed that there was no material to show that who assaulted Devising and further there was no material to show that the appellant shared common intention of the other persons to assault Devising. In any [- 7 -] event, it is not necessary for me to go into the aspect whether the appellant was rightly acquitted under Section 302 of IPC as no appeal against acquittal under Section 302 of IPC has been preferred by the State. 7. I have already observed earlier that complainant Devising has stated that he identified the appellant as the person who assaulted him with Chopper and thereafter he was robbed of his bag containing gold jewellery and cash. PW 12 Special Executive Officer Pande has held the identification parade. He has stated that the complainant touched the suspect Vijay i.e. the present appellant and stated that he was the suspect who inflicted blow on him with chopper and snatched away his bag. Nothing has been elicited in the cross-examination of Devising or Shri.Pande so as to disbelieve their testimony. Hence, I have no hesitation in relying on the same. 8. Ms.Bhojane has submitted that the identification of the appellant in the test identification parade cannot be relied upon. In support of this contention, she has stated following reasons: [- 8 -] . Firstly there is a delay in holding test identification parade. As far as this aspect is concerned, it is seen that the appellant was arrested in the present case on 22.7.2002. The test identification parade was held on 9.8.2002 in Kalyan Jail, hence, it cannot be said that there was any delay in holding the parade. Obviously, the appellant would have been in police custody for about 15 days from the date of his arrest i.e. upto about 5.8.2002. After the accused was remanded to judicial custody, the test identification parade was held in Kalyan Jail. Obviously, test identification parade cannot be held in the police station. Hence, the test identification parade would have to be held only after the accused is remanded to the judicial custody. Thus, it cannot be said that there was any delay in holding the parade. . Secondly, Ms.Bhojane submitted that panchas cannot be said to be reliable as they were brought by the police. As far as this aspect is concerned, it is seen that police had got about five persons. The Special Executive Officer chose two of them to act as panchas. SEO had made necessary enquiries and thereafter, selected them as panchas. Hence, [- 9 -] the fact that police had got panchas, cannot be said to be such as to affect the test identification parade. . Thereafter, Ms.Bhojane submitted that the SEO has not taken any precautions which are necessary to be taken while holding test identification parade. She submitted that SEO stated that he was not aware of the guidelines issued by the High Court while holding test identification parade. On specific query as to what were the precautions which were not taken by the SEO, it was stated that the SEO had not taken precautions to see that the accused and the complainant are not able to see each other before holding of test identification parade and the SEO had not asked panchas about their antecedents. As far as this aspect is concerned, it is seen that the SEO has specifically stated that he had taken precautions to see that the accused and the complainant were not able to see each other before the test identification parade, so also, SEO has stated that he had asked the panchas about their antecedents. Nothing else has been brought out in the cross-examination of SEO. Hence, I see no reason to disbelieve his evidence. [- 10 -] 9. In respect of test identification parade, Ms.Bhojane has placed reliance on the decision of this Court in the case of State of Maharashtra Vs. State of Maharashtra Vs. State of Maharashtra Vs. Rajesh alias Kaka Madanlal Soni and others; Rajesh alias Kaka Madanlal Soni and others; Rajesh alias Kaka Madanlal Soni and others; reported in 1998 ALL MR (Cri.) 471 reported in 1998 ALL MR (Cri.) 471 reported in 1998 ALL MR (Cri.) 471. She has placed reliance on paragraphs 21, 22 and 23 of the said judgment. In paragraph 21 of the said decision, it is observed that "it has to be ensured that prior to test identification, the suspect was not shown to identifying witnesses and identification was held in the manner stipulated by the Criminal Manual." I have already observed above that the SEO has specifically stated that he had taken precautions to see that the accused and the complainant were not able to see each other before the test identification parade. 10. As far as far paragraph 22 of the judgment in Rajesh (supra) Rajesh (supra) Rajesh (supra) is concerned, Ms.Bhojane has submitted that Devising has stated that after he lodged FIR, he went to the police station on many occasions to see the progress of his case. The FIR was lodged on 15.6.2002 and the accused came to be arrested on 22.7.2002. Hence, there was every [- 11 -] probability that Devising saw the accused in the police station. In paragraph 22 of the said judgment, it is observed that if the accused can show from circumstances that there was a reasonable possibility of their being shown to the witnesses prior to the test identification parade, it could be said that the accused had discharged the burden. However, in the said paragraph, it is further observed that accused may discharge his burden by showing that he and the witnesses were present in the police station at the same time, (EMPHASIS SUPPLIED) or that he was marched through the village of the witnesses. In the present case, nothing has been brought on record that the accused and the witnesses were present in the police station at the same time. 11. In paragraph 23 of the said decision, it is observed that "identification held in derogation of the provisions contained in the Criminal Manual stipulates that when a witness arrives to identify the suspect, the Magistrate should ascertain from him whether he had an opportunity to see the culprit at any time subsequent to the offence or after the arrest. In the said case, the SEO had admitted that [- 12 -] he had not asked witnesses prior to the identification parade whether the suspect had been shown to him. Hence, it was observed "it has to be ensured that prior to test identification, the suspect was not shown to identifying witnesses and identification was held in the manner stipulated by the Criminal Manual." In the said case, various lacunae were there. Moreover, SEO has stated that he had written identification memo in his own handwriting. However, later on the SEO admitted that the test identification memo was not in his handwriting, but it was in the handwriting of one Naveenet Chavan. On account of these facts, the test identification parade was not relied upon in the said case and accused came to be acquitted. The facts in the said case and the facts in the present case are not similar, hence, this decision would be of no help to the appellant. 12. Looking to the evidence of complainant Devising and the evidence of SEO P.W.12 Pande, I am of the opinion that the prosecution has fully proved its case against the appellant. Hence, the learned Addl. Sessions Judge has rightly convicted the appellant under Sections 392 and 394 read with [- 13 -] Section 34 of IPC. 13. At this stage, Ms.Bhojane submitted that the appellant has a clean record and his old mother is dependent on him. Hence, she has prayed that the sentence of imprisonment may be reduced. It may be stated here that though it is the prosecution case that injuries were caused by the appellant to the complainant, there is no medical certificate on record to prove the same. Looking to all the above facts, I am inclined to reduce the sentence from ten years to seven years. 14. In the result, the conviction of the appellant for the offence under Sections 392 and 394 read with Section 34 of IPC is confirmed. However, the sentence of imprisonment thereunder is reduced from ten years to seven years. Rest of the judgment and order dated 21.3.2006 passed by the learned 10th Adhoc Additional Sessions Judge, Sewree at Mumbai in Sessions Case No.5 of 2002, is maintained. The appellant is in jail. He shall serve out the remaining sentence. 15. Appeal is partly allowed. [- 14 -] [SMT.V.K.TAHILRAMANI,J.] [SMT.V.K.TAHILRAMANI,J.] [SMT.V.K.TAHILRAMANI,J.]