((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.302 OF 2005 Sajivkumar @ Kumar Pillai Sadanand Pillai Appellant versus The State of Maharashtra Respondent Abhaykumar Apte for appellant. Y.S.Shinde, APP for State. WITH CRIMINAL APPEAL NO.671 OF 2005 Samduddin @ Siddiqui Mohd.Shaikh Appellant versus The State of Maharashtra Respondent Rebecca Gonsalves for appellant. Y.S.Shinde, APP for State. CORAM : A.S.OKA, J. DATE : 30th January 2009 JUDGEMENT :- 1. These two appeals can be conveniently disposed of by a common judgement as the challenge in these two appeals is to the same judgement and order by which the appellants have been convicted of the offence punishable under section 392 read with section 34 read with section 397 of the Indian Penal Code. The appellants have been sentenced to suffer rigorous imprisonment for seven years and to ((-2-)) pay fine of Rs.1,000/- each. 2. I have heard detailed submissions made by the learned counsel appearing for the appellant in Criminal Appeal No.671 of 2005. Criminal Appeal No.671 of 2005 is by the first accused. and the Criminal Appeal No.302 of 2005 is by the second accused. 3. With a view to appreciate the submissions made by the learned counsel appearing for the parties it will be necessary to refer to the case of the prosecution in brief. The first informant is one Indrajit Yadav (PW-1). According to the case of the prosecution the said Indrajit Yadav was an employee as a driver of Mr.Arjun Mistry and Mr.Narayan Mistry to drive Fiat UNO Car. The incident occurred on 8th August 2001. The said Indrajit Yadav had taken his master Mr.Narayan Mistry to Bandra. After lunch at about 1.30 p.m, they proceeded to Lilavati Hospital. They left the said hospital at about 3.00 p.m.. Thereafter they proceeded to Sneh Sadan Building, Main Avenue Road, Santacruz. They reached the said building at about 3.30 p.m.. His master got down from the car with instructions to Indrajit ((-3-)) Yadav to wait in the car. The car was parked in front of said Sneh Sadan. The glasses of the car were rolled up and he was hearing songs on the car tape recorder. At about 4.15 p.m, two persons came from the rare side of the car. One of them opened the door of the car and pointed a weapon like Chopper to Indrajit Yadav. He threatened Indrajit Yadav and instructed him to sit quietly on the rear seat of the car. The other person occupied the rear seat of the car on his right hand side. The first person handed over the weapon to the other person who was sitting on the rear seat and the said person took the charge of the car. The person who was sitting next to Indrajit Yadav instructed him to keep quiet and threatened him to kill. The first person drove the car. he took the car to the Eastern Express Highway. Below the Kannamwar Nagar fly-over near Jogeshwari-Vikroli Link Road, the said accused snatched the cash of Rs.22/-, the driving licence, telephone diary and visiting card from the pocket of the said Indrajit. The said Indrajit Yadav was left below the fly-over. Thereafter the car took a turn and sped away towards Mumbai. The said Indrajit proceeded to Vikroli Police Station for lodging ((-4-)) a complaint. However, he was instructed to proceed to Bandra Police Station. As the incident occurred within the limits of Santacruz Police Station, he was sent to Santacruz Police Station where FIR was recorded. 4. In October 2001, during investigation, the Police realized that the accused in the case were arrested by Khar Police Station. Accordingly on 17th October 2001 the Police obtained custody of the accused. The case of the prosecution is that on 24th October 2001 the accused no.1 pointed out the place of offence. The further case of the prosecution is that on 30th October 2001 on the basis of the information disclosed by the accused no.2, the weapon used in the commission of the offence was recovered. Then identification parade was conducted by the Special Executive Magistrate on 20th November 2001. 5. The learned counsel appearing for the appellant in Criminal Appeal No.671 of 2005 has made detailed submissions. She submitted that the Trial Court has disbelieved the case of the prosecution as regards recovery of the weapon. ((-5-)) She submitted that there was a gross delay in holding the test identification parade. She submitted that due to various infirmities, the test identification parade is vitiated. She submitted that the learned Trial Judge has drawn corroboration to the testimony of the first informant from the identification of the accused in the test identification parade. She submitted that there is gross unexplained delay in holding the identification parade. She submitted that both the witnesses in the identification parade were not independent witnesses in the sense that one of them was the employer of the first informant and the other was a relative of the first informant. She submitted that there is nothing on record to show that the Special Executive Officer asked the witnesses as to whether they had an opportunity to see the suspect or his photograph prior to holding of the test identification parade. She pointed out several drawbacks in the test identification parade. She submitted that the mandatory requirements of the guidelines prescribed by this Court for holding identification parade have not been complied with. She submitted that the memorandum of the test identification parade ((-6-)) shows that the first informant has not described individual roles played by the accused persons and he has only stated that he identified the accused. She submitted that even the dummies were not chosen as provided in the guidelines. She submitted that there was vast age difference between the age of some of the dummies and the age of the accused persons. She submitted that even the dummies were not similar in the appearance to the accused and infact some of them were sporting a beard. She pointed out the discrepancies in respect of the time at which the identification parade was held and the duration for which the identification parade was conducted. She has placed reliance on several decisions and submitted that the accused have discharged the burden by showing that there was a reasonable possibility of the accused being shown to the witnesses prior to the test identification parade. She submitted that the prior to holding of the test identification parade, admittedly the first informant had visited the concerned Police Station. She submitted that the prosecution has failed to adduce link evidence to the effect that right from the time of the arrest till the accused was sent to ((-7-)) jail, no opportunity was available to the first informant to see the accused. She submitted that as the test identification parade is vitiated, only on the basis of identification of the accused by the first informant in the Court, the order of conviction could not have been passed. 6. The learned counsel appearing for the appellant in Criminal Appeal No.302 of 2005 has generally adopted the submissions of the learned counsel appearing for the appellant in Criminal Appeal No.671 of 2005. He submitted that the learned Trial Judge has already disbelieved the recovery of the weapon at the instance of the second accused. He pointed out that the second accused was arrested on 17th October 2001 and the recovery has been made on 30th October 2001 which is the last day of police custody remand of the second accused. 7. The learned APP appearing for the State submitted that there are no material defects in the procedure followed in the test identification parade and the breaches, if any, are of minor nature which will not vitiate the test identification parade. He submitted that ((-8-)) the first informant had seen the accused in the day light and he was with the accused for sufficient length of time and, therefore, he was in a position to identify the accused in the Court. He submitted that the conviction could be based on the identification of the accused by the first informant in the Court at the time of trial. He submitted that no interference was required with the impugned judgement and order. 8. I have given careful consideration to the submissions. The unfortunate part is that the appellants have already undergone the substantive sentence. There is a separate direction issued today to the Registry for taking appropriate steps to ensure that such unfortunate situation does not arise in future. 9. It will be necessary to refer to the deposition of the material prosecution witnesses. PW-1 is the said Indrajit who is the first informant. He stated in his evidence as to how he along with his master Mr.Narayan Mistry came near the Sneh Sadan Building at Santacruz, Mumbai. As far as incident is concerned, PW-1 has stated thus :- ((-9-)) "... ... Mr.Mistri had gone inside an office. On account of rains the glasses were rolled up. I was listening songs. At about 4.15 p.m. two persons came there. They open the door of the car and put me on the point of chopper. they told me to get down of the car.; One of the persons held me like this and the other got into the car from the rear side. The person who was near me holding a chopper handed over the chopper to the said person and he continued to hold me in the car. They threatened me to keep quiet and to take them wherever they wanted else I would be killed. The person who was on the front seat took control of the vehicle and drew it past Bandra and then to Sion Highway. They then made me to get down under the highway and before that they took away my driving licence, visiting card, cash of Rs.22/- and noted my residential address. They also took away my telephone diary. They then took a U turn and sped back towards Bombay. ... ..." He stated that after few days he received a message from his employer Mr.Mistri that he was required to visit Arthur Road Jail for test identification parade. He stated that he identified two accused in the said parade and his statement was recorded after parade. He identified the chopper used by the accused in the offence. He stated that the accused no.1 had initially put him on the point of chopper and the accused no.2 is the other persons who had held him in the rear seat of the car at the point of chopper. In the cross examination he admitted that he was employed by Mr.Narayan ((-10-)) Mistry and Mr.Arjun Mistry and he was working with both of them. He stated that before the date of recording of evidence he visited the Trial Court on ten occasions. He stated that on every occasion he had seen both the accused in the Court. In the cross examination he admitted that he had disclosed to the Police at Vikroli that the vehicle was stolen from Bandra Linking Road. 10. He stated that after lodging the complaint he was called to the Police Station on two or three occasions. He stated that on 28th November 2001 he was called at Arthur Road Jail. He stated that he knew Vijaynath Yadav and Arjun Mistri. He volunteered that Arjun Mistri was his master. He stated that Vijaynath Yadav is his relative. He stated that when he was called at the Arthur Road Jail, the said Vijaynath Yadav was also with him. He stated that after he reached Arthur Road Jail at about 1.00 to 2.00 p.m., the Police Officer did not show the accused present before the Court. He stated that the persons standing in the line at the time of test identification parade were having all different physique, colour and height. He stated that he ((-11-)) left the jail at about 4.00 p.m.. In further cross examination he stated that he had been to the test identification parade with his master. He stated that from the room where the identification parade was held, everything outside was visible. 11. PW-2 Narayan Mahuluram Mistri is one of the two employers of PW-1 Indrajit Yadav. He deposed regarding the incident. He stated that at about 5.30 p.m. he received a telephone call on his cellular phone from Vikroli Police Station and he was informed by the Police that his car had been stolen and his driver was with them. He stated that thereafter he called his brother Arjun Mistri and instructed him to go Vikroli Police Station. 12. PW-3 is Vaman Dhondu Sapre who was working as a Special Executive Officer. He stated that on 20th November 2001 he was called on telephone by Police Inspector Khade of Santacruz Police Station. He was instructed to hold test identification parade of two accused. He stated that he visited the Police Station at about 2.00 p.m. and took details of crime from Inspector Khade. He stated that PW-1 Indrajit ((-12-)) Yadav was also present in the Police Station. He stated that he called two panch witnesses and thereafter he himself, the witnesses and two panch witnesses went to Arthur Road Jail. He has described the procedure followed prior to holding of the identification parade. He stated that PW-1 identified the culprits by touching them. He stated that Indrajit informed that on 8/8/2001 when he was sitting in the car three persons went to him, one of them pointed weapon to him and was asked to sit on back seat. He told that the accused Shamsuddin had pointed weapon to him. The culprit Sanjivkumar was sitting with him on rear seat by pointing weapon to him as Shamsuddin had given weapon to him. The PW-3 stated that the accused no.1 and 2 present before court are the same. After identifying accused no.1 and 2, the witness (PW-1) was asked to go out and sit. Thereafter, PW-3 told the jail officer to take away both the accused and the dummies and to bring other set of dummies and one accused namely Anilous Joseph. In the cross examination he admitted that the name of one of the accused is mentioned as Shamsuddin Rashid Mohammed Shaikh. He stated that the name was accordingly informed to him ((-13-)) by the Police. He stated that in the memorandum of identification parade he has not specifically mentioned as to what role was attributed to the accused in commission of offence by the witness concerned. He stated that a day prior to the test identification parade was held, he received a telephonic information from Police Inspector Khade of Santacruz Police Station instructing him to hold the investigation parade of three accused. In paragraph 7 he admitted that he knew the two panch witnesses for last three to four years and he did not enquire whether they were related to the complainant Indrajit Yadav. He stated that he was not aware whether one of the Panchas was a relative of the witness Indrajit Yadav and the other one was the master of Indrajit Yadav. He stated that from the place of identification parade outer area was not visible. The Panchanama of the test identification parade is at Exhibit-22. 13. PW-4 Raju Manu Harijan is the Panch Witness. His evidence is not material. 14. PW-5 is Shrikant Anant Bhandare who was attached to Santacruz Police Station. PW-6 is ((-14-)) one Subhash Mahadev Khade who at the relevant time was attached to Santacruz Police Station. He stated that the accused were arrested on 17th October 2001. Various questions ere posed to him including the question whether he accompanied the Special Executive Magistrate to the Arthur Road Jail. PW-7 Yunus Ismail Shaikh was attached to Santacruz Police Station at the relevant time. He registered the FIR and he prepared the spot panchanama. 15. The main submissions have been made as regards legality and validity of the test identification parade. It is, therefore, necessary to refer to the Panchanama recorded at the time of test identification parade. The name of the panch witnesses mentioned therein are Mr.Vijaynath Yadav and Arjun Mistri. Going back to the deposition of PW-1 Indrajit Yadav, he has stated that Arjun Mistri and Narayan Mistri were his employers. He has admitted that he knew Vijaynath Yadav and the said Vijaynath Yadav was his relative. He volunteered that when he was called at the Arthur Road Jail, said Vijaynath Yadav was also with him. At this juncture it will be necessary to refer to the deposition of PW-2 ((-15-)) Narayan Mistri. He specifically stated that after receiving the information from Vikroli Police Station of theft of his car he called up his brother Arjun and instructed him to go to the Vikroli Police Station. Thus, the first panch witness Vijaynath Yadav is a relative of the first informant who was very well known to the first informant and who accompanied the first respondent to Arthur Road Jail. The second witness Arjun Mistry is not only the employer of the first informant and the owner of the car which was stolen but as per the deposition of PW-2, he had instructed the said Arjun to visit the Police Station in connection with the offence. 16. The guidelines for holding test identification parades have been incorporated in the Criminal Manual issued by this Court laying down the manner in which the test identification parade ought to be held. Clause (iii) of the procedure for holding identification parade incorporated in the Criminal Manual requires that two independent respectable persons should be first called and the Magistrate should question the independent respectable panchas and satisfy himself that ((-16-)) they are independent. In the present case it cannot be said that both of them were independent. Infact, no efforts have been admittedly made by the Special Executive Magistrate in terms of clause (iii) to satisfy himself that the two persons were independent. A perusal of the evidence of PW-3 Waman Dhondu Sapre shows that he did not make any enquiry as contemplated by clause (iii) of the Guidelines. 17. In the examination-in-chief, PW-3 has not at all specifically stated that he asked PW-1 as to whether he had an opportunity to see the suspects prior to the parade or their photographs were shown to him prior to the parade. The memorandum of panchanama of the identification parade also does not refer to the said aspect. Thus, the Special Executive Officer has not complied with the requirement of clause (xi) of the guidelines. The learned counsel for the appellant has placed reliance on the decision of this Court in the case of Rakesh Hiralal Kahar vs. State of Maharashtra (2006-ALL MR (Cri)-3062). It will be necessary to refer to paragraph 5 of the said decision which reads thus :- ((-17-)) "5. Only today, I have had occasion to decide this issue in Criminal Appeal No.115 of 2001 dated 4th and 5th September, 2006. I have accepted the I have accepted the I have accepted the argument argument argument canvassed in that Appeal that it canvassed in that Appeal that it canvassed in that Appeal that it was was was obligatory for the Special Executive obligatory for the Special Executive obligatory for the Special Executive Officer Officer Officer to ask the witness as to whether to ask the witness as to whether to ask the witness as to whether he he he had opportunity to see the suspect or had opportunity to see the suspect or had opportunity to see the suspect or his his his photograph prior to the parade. That photograph prior to the parade. That photograph prior to the parade. That is is is the requirement stipulated in the High the requirement stipulated in the High the requirement stipulated in the High Court Court Court Criminal Manual and it is mandatory Criminal Manual and it is mandatory Criminal Manual and it is mandatory to to to be observed. On this reasoning, the be observed. On this reasoning, the be observed. On this reasoning, the test test test identification parade conducted in identification parade conducted in identification parade conducted in the the the present case will have to be present case will have to be present case will have to be discarded. discarded. discarded." (Emphasis added) 18. The memorandum of test identification parade at Exhibit-22 discloses that the Dummies who were chosen were of the age group of 18 to 42. The respective ages of the accused were between 16 to 29 years. PW-1 Indrajit Yadav has stated that the age of the persons standing in the parade was different. Moreover, it is admitted that the dummies were not having similar appearances. This is one more aspect where breach has been committed of the guidelines laid down by this Court and in particular clause (v) thereof which requires an Executive Magistrate to ensure that the dummies are the persons who more or less have the same physical appearance and are approximately of the same age as the person to be identified. Apart from this, it is an admitted position as reflected from the evidence of PW-1 that from ((-18-)) the room in which the test identification parade was held, what was happening outside the room was visible. Thus, as stated earlier, there is clear breach committed of mandatory requirements of the procedure laid down by this Court for holding identification parade. 19. The matter does not rest here. In the present case the date of incident is 8th August 2001. The accused were arrested on 17th October 2001 and the test identification parade was held on 20th November 2001. None of the prosecution witnesses have tried to explain the delay from 17th October 2001 to 20th November 2001. In this behalf it will be necessary to refer to certain decisions relied upon by the counsel for the appellants. Reliance has been placed on the Apex Court decision in case of Hasib vs. The State of Bihar (AIR-1972-SC-283). The Apex Court in paragraph 7 of the decision has observed thus:- "7. ... ... Now, identification parades are ordinarily held at the instance of the investigating officer for the purpose of enabling the witnesses to identify either the properties which are the subject matter of alleged offence or the persons who are alleged to have been concerned in the offence. Such tests or parades belong to the investigation stage and they serve to provide the ((-19-)) investigating authority with material to assure themselves if the investigation is proceeding on right lines. It is It is It is accordingly accordingly accordingly desirable that such test desirable that such test desirable that such test parades parades parades are held at the earliest possible are held at the earliest possible are held at the earliest possible opportunity. opportunity. opportunity. Early opportunity to identify also tends to minimise the chances of the memory of the identifying witnesses fading away by reason of long lapse of time. But much more vital factor in determining the value of such identification parades is the effectiveness of the precautions taken by those responsible for holding them against the identifying witnesses haying an opportunity of seeing the persons to be identified by them before they are paraded with other persons and also against the identifying witnesses being provided by the investigating authority with other unfair aid or assistance so as to facilitate the identification of the accused concerned." (Emphasis added) In the facts of the case before the Apex Court the appellant was arrested on 29th January 1963. The identification parade in relation to the appellant was held on 14th February 1963. The said delay was held as fatal by the Apex Court in the facts of the case. A reliance has been placed on the decision of the Division Bench of this Court in the case of The State of Maharashtra vs. Rajesh @ Kaka Madanlal Soni and others (MANU/MH/0611/1998) and in particular what has been observed by the Division Bench