IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.154 OF 2003 IN SESSIONS CASE NO.92 OF 1998 AND SESSIONS CASE NO.1183 OF 1998 1.Shahadat Hussain Rehmat Hussain alias Kallu Kanpuri, 2.Rambhavan Shriram Gulam Verma @ Sonar (at present both lodged at ...Appellants Arthur Road Central Prison, Accd.Nos.1 & 2 Mumbai) Versus The State of Maharashtra, (at the instance of Tardeo Police Station, Mumbai, C.R.No.241/1996) ...Respondent ...... Mr.Arfan Sait as amicus curiae for Appellants. Mr.K.V.Saste, A.P.P. for Respondent. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. FEBRUARY 8, 2007. FEBRUARY 8, 2007. FEBRUARY 8, 2007. ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : 1. This Appeal by accused Nos.1 and 2 respectively take exception to the Judgment and : 2 : order passed by the First Additional Principal Judge and Additional Sessions Judge, Greater Bombay dated 19th/21st/22nd October 2002 in Sessions Case No.92 of 1998. The Appellants have been found guilty of offence punishable under Sections 392 r/w 34, 397 r/w 34 and 452 r/w 34 of the Indian Penal Code, 1860 (hereinafter referred to as ‘the I.P.C.) Insofar as offence punishable under Sections 392 r/w 34 and 397 r/w 34 are concerned, the Appellants have been directed to undergo rigorous imprisonment for a period of seven years on each count and also to pay fine. Insofar as offence under Section 452 r/w 34 is concerned, the Appellants are directed to suffer rigorous imprisonment for three years and also to pay fine. 2. This order of conviction and sentence is subject matter of challenge in the present Appeal. The Appeal was originally presented through Advocate. However, later on the Advocate took discharge, as a result, notices were sent to the Appellants before proceeding with the hearing of the Appeal. From the service report, it transpired that Appellant No.1 was still in jail. He, in : 3 : turn, requested to provide legal assistance. Whereas, Appellant No.2 has already been released from jail after having completed the sentence awarded by the lower Court in relation to the present offence and was not available on the known address. In this backdrop, this Court appointed Mr.Arfan Sait to espouse the cause of the Appellants as amicus curiae. 3. The prosecution case is that on 21st August 1996, Behram Hemawant Namdariya (PW 1) and his wife Homai (PW 2) were in their residence Flat No.8 on the fourth floor of Sonawala Building No.A, Tardeo Circle, Mumbai - 400 007. At about 9.30 a.m., the door bell of the house rang. The said Behram (PW 1), thinking that maid servant had arrived, opened the door without ascertaining as to who was on the other side of the door. As soon as he opened the door, it is alleged that four unknown persons rushed into his house and closed the door. One of them told him that they were Income-Tax Officers and have come to raid his house. It is alleged that when Behram (PW 1) demanded the Identity Card from the intruders, one of them took : 4 : out a revolver from his pant’s pocket and placed it on the temple of PW 1. It is stated that on hearing this commotion, Humai (PW 2) who was in the bedroom, came to the main hall. Another person amongst the four intruders took out revolver and placed it on the temple of PW 2 and threatened her that she would be shot, if she raised any alarm. The said persons demanded keys of the cupboard and took both PW 1 and PW 2 inside the bedroom. The two intruders continued to hold the revolver on the temple of PW 1 and PW 2. The other two persons removed cash and ornaments from the cupboard. The other two persons were wielding daggers in their hands. It is alleged that while the said persons were about to leave, PW 1 demanded receipt, as the persons had represented themselves as Income-Tax Officers. It is stated that the said persons told Behram that he may prepare the receipt. It is alleged that when PW 2 started writing down on a piece of paper, one of the four persons snatched the paper and signed it in the name of Rajan Mane and told them to contact on the telephone number noted on the paper. Thereafter, all the four persons left the flat with the cash, gold and other : 5 : valuables worth Rs.3,10,200/- (Rupees Three Lakhs Two Hundred) and while leaving, they bolted the door from outside. This incident, it is alleged lasted between 9.45 a.m. to 10.30 a.m. It is stated that PW 1 in the evening, at about 7.45 p.m. on the same day went to Tardeo Police Station and narrated the incident to PSI Eknath Genba Pawar (PW 7). PW 7, in turn, recorded the statement of PW 1, which is noted as First Information Report (F.I.R.) (Exhibit 10) and registered offence vide C.R.No. 241-96 under Sections 452, 170, 392 r/w 34 of the I.P.C. as well as provisions of Indian Arms Act. PW 7 thereafter visited the place of occurrence namely the residential flat of PW 1 along with panch witness PW 5 and prepared spot panchnama. It is not necessary to refer to other details. Suffice it to observe that after investigation was completed, charge-sheet was filed. As the offence was triable by the Sessions Court, the matter was remitted to the Sessions Court and registered as Sessions Case No.92 of 1998. It is stated that while the said case was pending, accused No.3 came to be arrested in connection with the incident in question and after investigation was completed, : 6 : supplementary charge-sheet was filed against accused No.3. That case was also committed and heard along with the sessions case pending against Appellants/accused Nos.1 and 2. The same was numbered as Sessions Case No.1183 of 1998. The fourth accused, however, could not be nabbed and has remained absconding. 4. The prosecution has mainly relied on the evidence of two eye-witnesses PW 1 and PW 2 about the actual incident. The prosecution also examined the panch witnesses PW 5 and PW 6 as well as the Special Executive Magistrates (PW 3 and PW 4), who conducted the test identification parade in relation to accused Nos.1 and 2 and accused No.3 respectively. The prosecution also relied on the evidence of police officials PW 7 and PW 8. On analysing the ocular as well as the documentary evidence adduced by the prosecution, the Trial Court proceeded to record finding of guilt against the Appellants/accused Nos.1 and 2 only in respect of offence punishable under Sections 392 r/w 34, 397 r/w 34 and 452 r/w 34 respectively. : 7 : 5. Insofar as accused No.3 is concerned, the Trial Court has acquitted the said accused of all the charges. No appeal has been preferred by the State questioning the correctness of that Judgment. In this Judgement, therefore, I am not called upon to consider the case against accused No.3 or for that matter to consider the correctness of the finding recorded by the Trial Court acquitting the Appellants/accused of other charges. The Trial Court, in the first place, has accepted the evidence of PW 1 and PW 2 as trustworthy and reliable to proceed against the Appellants/accused Nos.1 and 2, inspite of the discrepancies and embellishments in their evidence. The Trial Court has noted that the main stand of the Appellants was that the prosecution evidence did not establish beyond reasonable doubt, the involvement of the Appellants/accused Nos.1 and 2 in the commission of the offence as the test identification parade was of no value. Left with that situation, there was no material to corroborate the prosecution version about the complicity of the Appellants in the commission of the offence. The Trial Court has addressed to this plea of the Appellants and : 8 : negatived the same. The Trial Court on analysing the evidence as a whole, took the view that the version of PW 1 and PW 2 was trustworthy and reliable and would clearly indicate complicity of the Appellants/accused Nos.1 and 2 in the commission of the crime. On that reasoning, the Trial Court proceeded to hold that even if the test identification parade was to be ignored, it would make no difference in the fact situation of the present case. The Trial Court has taken into account the spot panchanama proved by independent panch PW 5 to hold that the spot panchnama and the evidence of PW 5 would corroborate the case made out by PW 1 and PW 2 about the incident having occurred on the relevant date which would corroborate their version. The Trial Court has also relied on the dock identification parade of Appellants/accused Nos.1 and 2 during the trial. Essentially, on the above basis, the Trial Court proceeded to record finding of guilt against the Appellants. 6. In the present Appeal, it is argued on behalf of the Appellants that the prosecution : 9 : evidence fell short of bringing home guilt against the Appellants beyond reasonable doubt. In any case, the Appellants deserve to be given benefit of doubt. According to the Appellants, there was unexplained delay in registering F.I.R. The incident in question is stated to have occurred in the morning at about 9.30 a.m. whereas, the F.I.R. is registered in the evening after 7.30 p.m. Besides, there was improvement in the evidence of PW 1 and PW 2 on material points. Further, the test identification parade having been rightly discarded by the Trial Court, the Appellants deserve benefit of doubt as the dock identification of Appellants has been done after over five years. It is submitted that it is not the prosecution case that any injury was caused to any of the prosecution witnesses, nor any weapon or article was recovered. Moreover, there was material discrepancy about the description of the clothes worn by the accused as given in the F.I.R. and as given in the evidence. It is also argued that the Trial Court having acquitted the Appellants of charge of impersonation as posing themselves to be the Income-Tax Officers, the theory of the entry of : 10 : the Appellants in the flat itself becomes doubtful. It is then contended that for the reason accused No.3 has been acquitted, on the same basis, benefit ought to have been given to accused Nos.1 and 2 while weighing the evidence of the same prosecution witnesses who have spoken against the Appellants/accused Nos.1 and 2. It is also contended that there is discrepancy in the evidence about bolting of door from outside by the accused while leaving the flat and the name of neighbour who opened the door disclosed by the prosecution witnesses, having not been examined, was fatal. It is submitted that it is unusual that accused No.1 would lead to the place of offence within the meaning of Section 27 of the Evidence Act. It is lastly submitted that accused No.2 has already suffered the sentence awarded by the Trial Court. Insofar as accused No.1 is concerned, the sentence awarded to accused No.1 should run concurrently with the sentence awarded to him in respect of other sessions cases being Sessions Case No.504 of 1997 (for offences under Sections 396, 449 and 324 of I.P.C.) and Sessions Case No.579/97 (for offence under Sections 396, 449 and 324 of the I.P.C.). : 11 : 7. The Public Prosecutor on the other hand, supports the view taken by the Trial Court and would submit that the view so taken is not only a possible view, but the only inevitable conclusion to be reached in the fact situation of the present case. The Assistant Public Prosecutor has supported the finding and conclusion reached by the lower Court and pressed that the Appeal be dismissed being devoid of merits. 8. Having considered the rival submissions and going through the materials on record, I have no hesitation in affirming the conclusion reached by the Trial Court in recording finding of guilt against the Appellants for offences punishable under Sections 392, 397 and 452 r/w 34 of the I.P.C. Indeed, the prosecution has relied only on evidence of PW 1 and PW 2 to establish complicity of the Appellants in the commission of the offence. PW 1 and PW 2 were the only persons who have witnessed the incident and were victims at the hands of the Appellants and two others. Insofar as the occurrence of incident is concerned, the : 12 : evidence of PW 1 and PW 2 is not only consistent but would corroborate on material points. The Trial Court, on careful analysis of the said evidence and after taking into account the criticism of omissions and contradictions found in their evidence, has rightly proceeded to hold that their evidence was trustworthy and reliable. The discrepancies and embellishments found in their evidence were insignificant and did not affect the material evidence regarding the actual incident and the involvement of the Appellants as such. 9. We shall now examine the evidence of PW 1 and PW 2. PW 1 in his examination-in-chief has given the manner in which the incident occurred on 21st August 1996. He has deposed that he opened the door after the door bell rang. He saw two persons on the door. He has identified those two persons as accused Nos.1 and accused No.2/ Appellants herein. He has given the description of the clothes worn by those persons. He has further stated that accused No.1 represented that they were Income-tax Officers and have come to raid the flat. When he called upon them to show their Identity : 13 : Card, accused No.1 took out the revolver and put its barrel on his temple. Thereafter, both accused Nos.1 and 2 entered his flat and took him and his wife in the bedroom. He then stated that accused Nos.1 and 2 were then joined by two more persons. He has further deposed the role played by accused Nos.1 and 2. Accused No.1 put the revolver on the temple of his wife (PW 2) and accused No.1 put the revolver inside his mouth. He has stated that both the Appellants/accused Nos.1 and 2 threatened him as well as his wife and told them not to shout. He has then stated that two other associates accompanying the accused Nos.1 and 2 removed the cash of Rs.1,21,500/- (Rupees One Lakh Twenty-one Thousand Five Hundred), golden earrings (four pairs) and other items (details whereof are given in his evidence). He has then deposed that the accused persons took away all those cash and valuable items and while going away, bolted the door from outside. He has also deposed that while the accused were inside the house, had cut out the telephone lines. He has then deposed that after the Appellants/accused had left the flat, he raised shouts for help and his neighbour rescued them from : 14 : the flat by opening the door from outside. Insofar as the version about the actual incident and the involvement of Appellants/accused Nos.1 and 2 is concerned, nothing has come in the cross-examination, so as to doubt the truthfulness thereof. In the cross-examination, as is rightly noted by the Trial Court, the Advocate for the accused No.2 has succeeded in bringing on record the omissions and contradictions noted by the Trial Court in Paragraph 15. However, said omissions or contradictions being insignificant, are not sufficient to doubt the veracity of the version given by PW 1. In any case, the said omissions or contradictions, in no way, were directed to doubt the claim of PW 1 of having identified accused No.1 and accused No.2 in the dock, albeit, after five years. Even this aspect has been considered by the Trial Court. It is seen that the prosecution witnesses PW 1 and PW 2 had opportunity to closely see the accused persons for sufficiently long time as they were inside the flat for almost over thirty minutes and in their close proximity. They had sufficient opportunity to notice their identity. The only suggestion put to this witness (PW 1) with : 15 : regard to identification in the dock is that he had done so at the instance of the police, which suggestion has been denied. It is the case of PW 2 that she also had occasion to closely watch the developments for over thirty minutes. She has deposed having seen accused Nos.1, 2 and 3 taking part in the crime. She has ascribed specific role to accused No.1 and accused No.2/Appellants herein. She has spoken about the fact that accused No.1 and accused No.2 were holding revolvers in their hands; and at the point of revolver, she and her husband were robbed. PW 2 claims to have attended test identification parade and identified accused Nos.1 and 2 in the test identification parade. However, the Trial Court has discarded the prosecution evidence regarding test identification parade for the reason that there was opportunity to the witness to see the accused standing behind the wall as the height of the wall was hardly 2’ 6". Besides, there were contradictions in the version of PW 1, PW 2 and PW 3 about the manner in reaching the venue. I am not elaborating on this aspect in the present Judgement, as I am inclined to affirm the conclusion reached by the Trial Court on the : 16 : basis of other evidence which clearly establishes the complicity of the Appellants/accused Nos.1 and 2 in the commission of the crime beyond reasonable doubt. PW 2 has been extensively cross-examined, however, the cross-examination is mainly on the identification of the accused in the test identification parade. There is no cross- examination in relation to the evidence given by PW 2 of the actual incident. There is only suggestion given by accused No.1 that no incident took place and that she was not present in the house on the date of incident. It is suggested to her that she had identified accused No.1 in Court at the instance of the police. These suggestions have been denied by PW 2. Even the cross-examination at the instance of accused No.2, does not affect the truthfulness and reliability of the version of PW 2 in relation to the actual incident. She has spoken about the occurrence of the actual incident and time of occurrence as well as involvement of accused Nos.1 and 2 is corroborated from the version of PW 2 as well as the spot panchanama. Even PW 2 besides identifying accused Nos.1 and 2 during the test identification parade has : 17 : identified them in dock during the trial. Insofar as accused No.1 is concerned, she has broadly described about his physique. She has stated that he was about 5’ 11" to 6’ and dark brown in colour. He was between age group of 28 to 35. As mentioned earlier, as this witness had opportunity to watch the accused persons closely for sufficiently long time about thirty minutes and from close distance, the dock identification of the accused at the instance of these witnesses cannot be brushed aside lightly. True it is, that the evidence regarding participation of this witness in the test identification parade has been held to be of no value, that however, would not affect the credentials of this witness about her version regarding the actual incident and about the role played by each of the accused in the incident. Merely because the authorities (police as well as Special Executive Magistrate) had faltered in ensuring proper test identification parade, that cannot be the basis to completely throw out the version of PW 1 and PW 2 which is the substantive evidence and more so, when the same is trustworthy and reliable. There is nothing in the : 18 : cross-examination, not even any suggestion given as to why these witnesses PW 1 and 2 would falsely implicate accused Nos.1 and 2 in the commission of the crime. On this finding, the conclusion reached by the Trial Court about the involvement of the Appellants will have to be affirmed. 10. To get over this, Counsel for the Appellants would contend that there is unexplained delay in registering the F.I.R. The argument though attractive, will have to be rejected. The Trial Court has considered this contention in Paragraph 34 of the Judgment. The Trial Court has rightly noted that nothing has been brought on record in cross-examination of PW 1 and PW 2 that they had concocted a false version to fabricate a case against the accused by taking so much time in approaching the police. The view taken by the Trial Court on analysing the evidence of PW 1 and PW 2 is a possible view. Merely because some time has been spent in reporting the matter to the police, does not affect the substantive evidence which has come on record regarding the involvement of the Appellants in the commission of the crime. : 19 : That having remained unshaken, delay of few hours in reporting the matter to the police, cannot be basis to lightly brush aside the prosecution case moreso in absence of cross-examination on the point that the version of these prosecution witnesses was false version and a fabricated case to falsely implicate the Appellants. The Trial Court has also adverted to two decisions of the Apex Court in the case of State of Haryana v. Ram Sarup decided on 9th April 2002 in Criminal Appeal No.21 of 1994 and Bhagwan Singh v. State of Madhya Pradesh reported in (2002) 4 SCC 85 to reject the stand taken on behalf of the Appellants. That view being possible view, no interference is warranted on the basis of the argument under consideration. 11. Counsel for the Appellants had argued that the evidence of PW 1 and PW 2 was not sufficient to record finding of guilt against the Appellants. Instead, in view of the omissions and contradictions in the evidence of these witnesses, the Appellants ought to be given benefit of doubt. Even this argument does not commend to me. The Trial Court has analysed the evidence of PW 1 and : 20 : PW 2 threadbare and has concluded that the same was trustworthy and reliable one. The so-called omissions and contradictions noticed in the evidence were minor discrepancies or embellishments which in any case were insignificant. Insofar as the actual incident and the involvement of the Appellants in that incident are concerned, that evidence of PW 1 and PW 2 has remained unshaken. The view so taken by the Trial Court is a possible view. To reassure myself, the evidence of these witnesses was analysed and I see no reason to depart from the conclusion so reached by the Trial Court. 12. It was contended that the Trial Court having disregarded the evidence regarding test identification parade, ought not to have recorded finding of guilt against the Appellants on the basis of dock identification done by PW 1 and also by PW 2. It was argued that having regard to the importance of conducting test identification parade, the Appellants deserved benefit of doubt. It was argued that in absence of evidence of identity of the accused in the test identification : 21 : parade, the prosecution case cannot succeed. For considering the argument on the point of effect of discarding the evidence regarding test identification parade, we shall straightaway refer to the decision of the Apex Court in the case of Suraj Pal v. State of Haryana reported in (1995) 2 Suraj Pal v. State of Haryana reported in (1995) 2 Suraj Pal v. State of Haryana reported in (1995) 2 SCC 64 SCC 64 SCC 64. In Para 14 of this decision, the Apex Court has noted the object, purpose and importance of the test identification parade. The Apex court has observed thus : "14. Before dealing with the various contentions advanced by the learned counsel for