1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 828 OF 2007 Zahiruddin Tajuddin Shaikh ) Age about 23 years, ) residing at Rajiv Gandhi Zopadpatti, ) Opposite Gudani Quarry, Turbhe, ) M.I.D.C., New Bombay. ) ... Appellant. (Orig.Accused No.4) Versus The State of Maharashtra. .... Respondent. Mr. Daulat G. Khamkar for the Petitioner. Mr. P. H. Kantharia, APP for the State. CORAM : BILAL NAZKI and A. R. JOSHI, JJ. DATED : 19TH MARCH, 2009. ORAL JUDGMENT (Per Bilal Nazki, J.) : This appeal is filed by accused No.4 in Sessions Case No.291 of 1998. Four accused were arrested. Accused No.2 absconded after getting bail. Accused No.3 was declared to be under some mental disorder and his trial was postponed and separated. So during the present trial only 2 accused No.1 and accused No.4 were tried. Accused No.1 has also been convicted but neither the learned Counsel for the appellant nor the Public Prosecutor were able to tell us as to whether accused No.1 has filed any appeal or not. In order to ensure that no prejudice is caused either to accused No.1 or to the prosecution, if any appeal has been filed, this Judgement should be construed only a judgment with respect to culpability or otherwise of accused No.4. We are also told that another accused No.3 was subsequently tried separately and has also been convicted. This judgment will also not affect the judgment regarding accused No.3 and if accused No.3 has filed any appeal or may file any appeal that can be decided on its own merits. 2. The prosecution case was that on 6th October, 1997 at about 3.15 p.m. six unknown persons entered into the office of Asiatic Travel Services. They were armed with revolver and choppers. They entered with intent to commit dacoity. They entered the office in two batches. Out of them one stood at the door and shouted “they are the persons of Dawood, don't move the place”. Another person stood in hall holding revolver and third person stood at the door of the office. Rest of the two held choppers. Thereafter, again three unknown persons armed with choppers entered the office of Asiatic Travel Services. One of them put chopper on the neck of 3 lady employee by name Anita D' Mello and robbed her ornaments. It may be pointed out at this stage that Smt. Anita D' Mello was not examined as a witness. Person holding revolver entered cabin of Ms. Motiwala, employee of the office and other person holding chopper threatened her for opening drawer of the table. At that time the complainant who was proceeding towards the cabin of Ms. Motiwala, was restrained at the point of chopper. During this incident, the complainant sustained injury to his both hands and back. Immediately, person holding revolver came out of cabin and threatened the complainant at the point of revolver that he would be finished and stared launching revolver due to which its barrel was opened when the complainant realised that the revolver was a toy revolver. Therefore, the said person was caught hold by the complainant. When the persons present in the room realised that the gun was not a real one, they tried to fight back and in the mele four of the intruders escaped. Two of them were captured on the spot and later on handed over to the police. 3. It has been consistent case of the prosecution that the persons who were captured by the inmates of the office were accused Nos.1 and 3. Therefore, we will proceed on the premise that the present appellant i.e. accused No.4 was not captured by the inmates of the office at the time of incident. 4 4. The charges were framed under Sections 394, 452 and 395 of the Indian Penal Code. The accused pleaded not guilty and claimed to be tried. The appellant herein (accused No.4) was convicted under Section 452 of the Indian Penal Code and sentenced to suffer R.I. for 7 years and also to pay fine of Rs.10,000/-. The appellant was also convicted under Section 394 of the Indian Penal Code and sentence to suffer R.I. for life and to pay fine of Rs.10,000/-. The appellant was also convicted under Section 395 of the Indian Penal Code and sentence to suffer R.I. for 10 years and to pay fine of Rs.10,000/-. In default of payment of fine on each count he has to undergo one year imprisonment. 5. The occurrence took place on 6th October, 1997 and the appellant was arrested on 13th December, 1997. He was in custody during the time of trial and continues to be in jail for more than 11 years. The prosecution examined 9 witnesses and exhibited certain objects and documents. PW 1, PW 2, PW 3 and PW 7 are eye witnesses. PW 4 is a panch to the arrest. PW 5 conducted identification parade. PW 6 is the complainant. PW 8 is a panch to the recovery. PW 9 is the Investigating Officer. 6. Learned Counsel for the appellant submits that there is not an iota of evidence produced by the Public Prosecutor which could connect the appellant to the offence for which he was charged. He submits that the 5 appellant was arrested almost after two months of the incident. It was an admitted case of the prosecution that they were strangers to the inmates of the office where the occurrence took place. No identification parade was carried as far as this appellant was concerned till 3rd January, 1998. So the identification parade was conducted almost after three months of the occurrence and after 20 days of arrest of the appellant. As such, he submits that identification itself has become meaningless. PW1, PW2 and PW3 were also projected as eye witnesses but no attempt was made by the prosecution to get the appellant identified by these witnesses. He was only sought to be identified by PW6 and PW7. In the light of this submission, we would like to have glance at the testimony of the witnesses. 7. PW 1 – Keki Bomanji Vania, stated that he was working on the day of occurrence at Asiatic Travel Service. He was a senior executive and he was supposed to attend his duties from 10.00 a.m. to 1.00 p.m. and 1.30 p.m. to 5.30 p.m. He attended the office on 6th October, 1997 as usual. There was no separate cabin for him in the office. He was sitting along with other staff members. The partners of the firm Ms. Silla Motivala and Mr. Sarosh Irani were present in the office. Some of the staff members present were Ms. Swati Nath, Minal Karkera and Rita. Six people entered the office at around 3.15 p.m. in three pairs of two each. One of those six 6 came near the Indian Airlines counter where the girls were sitting and pointed out a revolver at them and said “Hum Dawood ka aadami hai, hilana nahi”. Two of them were having knives. Those weapons were in their bag when they entered and after entering those knives were removed by them and they threatened the staff with the same. He did not see any arms in the hands of other three persons. They were standing aside. He saw one of them, who was without arms, removing ornaments from those girls in the office. He took courage and entered the cabin of his partner who was being shown out the gun. He caught hold the hand holding gun and in the process the gun fell down. This happened in the cabin of Ms. Motivala. One of them was exhorting the man with the gun and others on knife. He kicked that man and he fell down. On seeing this, the other staff took courage and they were able to catch hold of two of them and others ran away. The chains were removed from the necks of Minal and Swati. It may also be pointed out that Minal was not produced as a prosecution witness. Then this witness further stated that two people were caught and they were present in the Court. This obviously was not true because accused No.4 i.e. the present appellant had not been caught on the spot as it has been the case of the prosecution itself that he was arrested only on 13th December, 1997 i.e. almost after more than 2 months of the incident. 7 Therefore, much reliance cannot be placed on the testimony of this witness because he was sure that the appellant was caught on the spot at the time of occurrence itself. Even otherwise, he has not attributed anything to accused No.4 which would be sufficient for this Court to come to the conclusion that the appellant was responsible for committing the offence for which he was charged. 8. Similarly, PW 2 – Gopal Shankar Shetty, was also working in the office and he gave almost the same testimony as was given by PW 1. But he did not identify the appellant as one of those two persons who were apprehended by the staff members of Asiatic Travel Service at time of occurrence. He was, however, emphatic in saying that the man who was hit in the office was not present in the court. PW 3 – Swati Gurunath Nath, also gave the evidence on similar lines as was given by PW 1 and PW 2 as she was also a staff member. She said that out of the two persons caught on the spot, one was present in the court and she identified the present accused having been present at the time of occurrence. PW 4 – Vishwanath Sadashiv Kore, is the panch witness. Obviously, this panch did not say truth in the court. This panch was a panch witness and he was called to Azad Maidan Police Station by the Police Officer on 6th October, 1997 i.e. the date of occurrence. He stated that personal search of two accused was 8 conducted in his presence and from one of the accused a chain and cash of Rs.120/- was taken charge. This chain was stolen chain. He submitted that this recovery was made from accused No.4. But the police case was that the accused No.4 was arrested after more than two months of the date on which the alleged recovery was made from him in the police station. PW 5 – Sanjay Shivanand Bhatkal, is a person who was called to conduct the identification parade. We do not understand why identification parade was conducted for only two witnesses as it was the case of the prosecution itself that the accused had no prior acquaintance with the witnesses. However, he stated that the two witnesses i.e. Laxman and Irani, both identified the present appellant. PW 6 is Sarosh Shaboor Irani, who identified the present appellant. Much cannot be attributed to his statement because this identification parade was carried in the presence of the witness who also claimed to be an eye witness. He almost stated what has been stated by PW 1, PW 2 and PW 3. About identification, he stated that for the purpose of identification he was taken to Arthur Road Prison and he had identified accused No.4 in the presence of the Magistrate. Similarly, PW 7 – Laxman Vasudeo Sawant, was also an eye witness and also a person who identified the accused. He stated that he went to Byculla for parade on 10th December, 1997 and on that day he identified one 9 person, who was not present in the court. He was again taken for identification on 3rd January, 1998 when he identified the present appellant i.e. accused No.4. Evidence of these two witnesses identifying accused No.4 cannot be relied upon simply on the fact that the identification parade was carried almost after three months of the incident. Accused No.1 had been arrested on the day of occurrence itself, but identification was carried after two months without any reason. Thereafter, accused No.4 was arrested on 13th December, 1997 and his identification was carried after 20 days of his arrest which has not been explained. PW 8 – Banwar Krishna Malik is the panch witness who is not concerned with accused No.4. PW 9 – Ansari Habib Rehman is the Investigating Officer. 9. We have considered the whole evidence and come to the conclusion that this evidence does not connect the accused No.4 to the occurrence at all. 10. For these reasons, we allow the appeal and set aside the order of sentence and conviction dated 3rd April, 2000 passed by the Additional Sessions Judge, Mumbai in Sessions Case No. 291 of 1998 and direct the release of the appellant Zahiruddin Tajuddin Shaikh (accused No.4) forthwith, if not required in any other case. If any fine has been paid by 10 the appellant, the same shall be refunded immediately. Sd/- (BILAL NAZKI, J.) Sd/- (A. R. JOSHI, J.)