sat 1 crim.appeal 352-2005 and 534-2005 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 352 OF 2005 Akbar Hafij Khan, ) Aged about 22 Years, an adult, ) R/o. Cross line, Gali No.6, ) Dr.Khatri Galli, ) Room No.2, Sewree (West), ) Mumbai-400 015 ) ...Appellant/ Accused (Original Accused No.3) vs. The State of Maharashtra ) (At the instance of The V.P. Road ) Police Station C.R.No.286 of 2001, at ) the instance of Mishrimal Jain, ) Under section 452, 342, r/w.34, ) section 392 r/w 397 of IPC) ) ...Respondent/ Complainant AND CRIMINAL APPEAL NO. 534 OF 2005 Mohd Altaf Khan Santosh Rajput ) @ Altaf Khan, adult, Age 24, ) Indian inhabitant, residing at Rais Palace, ) ‘B’ Wing, Room No.202, 2nd Floor, ) Kismat Colony, Kausa, Mumbra, ) District Thane. ) Presently lodged in Arthur Road Jail ) ...Appellant/ Orig.Accused No.1 vs. sat 2 crim.appeal 352-2005 and 534-2005 The State of Maharashtra ) (At the instance of V.P. Road Police ) Station, CR No.286 of 2001) ) ...Respondent Mr.Arfan Sait .for the Appellants. Mr.P.S. Hingorani, APP for the State. CORAM : M.L. TAHALIYANI, J. DATED : NOVEMBER 11, 2011 JUDGMENT :- 1 Both the appeals are being decided by a common judgment and order as they arise out of the same judgment and order passed by the 6th Ad-hoc Additional Sessions Judge, Sewree, Mumbai. The appellant Mohd. Altaf Khan Santosh Rajput @ Altaf Khan in Criminal Appeal No.534/2005 was the original accused no.1 in Sessions Case No.700/2002 and appellant Akbar Hafij Khan, in Criminal Appeal No.352/2005 was the original accused no.3 in the said Sessions case. These two appellants along with the original accused no.2 Bilal @ Rahul Hasan Mir and original accused no.4 Kisanlal Nandarmji Prajapati were chargesheeted for various offences by V.P. Road Police Station. The original accused no.4 was acquitted. The sat 3 crim.appeal 352-2005 and 534-2005 original accused no.2 was convicted for some of the charges. He has not preferred any appeal . 2 As far as appellant Mohd. Altaf Khan Santosh Rajput @ Altaf Khan in Appeal No.534/2005 (hereinafter referred to as 'appellant no.1') is concerned, he has been convicted for the offences punishable u/ss. 397 of IPC, 452 read with 34 of IPC and 342 read with 34 of IPC and has been sentenced to suffer imprisonment and a fine as mentioned in the final order. 3 The appellant Akbar Hafij Khan in Appeal No. 352/2005 (hereinafter referred to as 'appellant no.2') has been convicted for the offences punishable u/ss. 392 of IPC, 452 read with 34 of IPC and 342 read with 34 of IPC and has been sentenced to suffer various punishments as stated in the final order. 4 The appellants alongwith other two accused had sat 4 crim.appeal 352-2005 and 534-2005 allegedly committed trespass at the shop of the complainant and had wrongly restrained the complainant, his brother and his servant by tying them by means of rope and had at the same time committed robbery of valuable articles like cash, gold ornaments and a wrist watch. Appellant no.1 had allegedly used a knife at the time of commission of the offence. He has, therefore, been convicted for the offence punishable u/ss. 397 of IPC. 5 The complainant Mishrimal Jain was a metal trader and was having his office at 7 Doshi Bhavan, First floor, Room no.8 and 9, 2nd Sutar Galli, Girgaon, Mumbai. At the time of incident, he was present in the premises alongwith his brother and his servant Shankar. The incident had occurred at about 7.15 p.m. when the appellants and accused no.2 had committed trespass at the shop of the complainant Mishrimal. They had tied the complainant and his brother and servant by means of rope and had stuffed gunny pieces in their mouth to prevent them from shouting. Appellant no.1 threatened the complainant sat 5 crim.appeal 352-2005 and 534-2005 and the other victims of the offence of dire consequences in case they shouted. After tying the complainant and the two other victims, they had taken away gold bracelets, gold rings, gold chains, a mobile phone, a wrist watch and cash of Rs. 15,000/- from the possession of complainant and his brother. After removing all the valuable articles from the person of complainant and two others, the appellants and accused no.2 fled from the spot. 6 It is a case of prosecution that the complainant anyhow could reach emergency call bell and pushed the button. Shopkeeper Mr.Satish Hingole of ground floor, who was running a Tailoring shop, came to the rescue of complainant and others. Matter was reported to police. FIR was registered and investigation continued. 7 The alleged incident had occurred on 3rd November, 2001. The suspects could not be arrested for about two to three months. It is in the month of February that sat 6 crim.appeal 352-2005 and 534-2005 appellant no.1 was suspected to be involved in this case. He was already in custody of Aaray sub Police Station in connection with other crime. His custody was taken by V.P. Road Police Station on 28th February, 2002. As far as original accused no.2 and appellant no.2 are concerned, they were in custody of J.J. Marg Police Station. They were also suspected offenders in the present case. Their custody was taken from J.J. Marg Police Station by V.P. Road Police Station on 13th March, 2002. As such, appellant no.1 was arrested on 28th February, 2002 and accused no.2 and appellant no.2 were arrested on 13th March, 2002. It is a case of prosecution that during the course of investigation, most of the property was recovered on the basis of information given by the appellants and accused no.2. The property was identified by the complainant and other victims to be the same which was robbed by the appellants and accused no.2. Identification parade was held on 21st March, 2002. 8 When both the appeals were taken up for hearing, it was noticed from the cause list that both the appellants are in sat 7 crim.appeal 352-2005 and 534-2005 custody. Though bail has been granted to appellant no.2, he has not been able to execute a bond and as such, he could not go out of jail. Learned Counsel Mr.Arfan Sait had agreed to assist the Court as Amicus Curiae. The arguments of learned Counsel Mr.Arfan Sait and learned Additional PP Mr.Hingorani are heard by me. Mr.Arfan Sait, at the outset, has submitted that as far as appellant no.1 is concerned, the trial against appellant no. 1, in fact, stood vitiated as he was not provided free legal aid. It was submitted by Mr.Arfan Sait that appellant no.1 was deprived of the fair and just procedure and therefore, his conviction may be set aside on this ground itself. It was brought to my notice that PW 1 and 2 are star witnesses in this case. PW 1 is the complainant. PW 2 is his brother. Their servant Mr.Shankar has not been examined. Though there is recovery of property allegedly on the statements made by the appellants and accused no.2, the conviction mainly appears to be based on the evidence of PW 1 and 2. I have gone through the evidence of PW 1 and 2 and the notes of daily Roznama. The evidence of PW 1 and 2 was recorded on the one and the same day i.e. on sat 8 crim.appeal 352-2005 and 534-2005 29th September, 2004. Learned Counsel Mr.Korge had appeared on behalf of accused no.3 i.e. appellant no.2. However nobody had represented appellant no.1 Mohd Altaf Khan Santosh Rajput @ Altaf Khan, accused no.2 Bilal @ Rahul Hasan Mir and accused no.4 Kisanlal Nandarmji Prajapati . Accused nos.1, 2 and 4 had declined to cross-examine the PW 1 and 2. It is seen from the record that rest of the witnesses were cross- examined by the Advocate appointed by the Court. However Advocate appointed by the Court did not apply for recall of PW 1 and 2 nor did the Court find it necessary to recall those witnesses for cross-examination on behalf of appellant no.1 and accused no.2. It is now well settled that right to free legal aid is an integral part of reasonable, fair and just trial and it is implicit in the guarantee under Article 21. The Hon'ble Supreme Court as back as in the year 1981 in the case of Khatri vs. State of Bihar {1981 Criminal Law Journal 470(1)} had made following observations at para 4 :- “This Court has pointed out in Hussainara Khatoon’s case (supra) which was decided as far sat 9 crim.appeal 352-2005 and 534-2005 back as 9 th March, 1979 that the right to free legal services is clearly an essential ingredient of reasonable, fair and just procedure for a person accused of an offence and it must be held implicit in the guarantee of Article 21 and the State is under a constitutional mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so require, provided of course the accused person does not object to the provision of such lawyer.” It was held by the Hon'ble Supreme Court :- “We must, therefore, hold that the State is under a constitutional obligation to provide free legal services to an indigent accused not only at the stage of trial but also at the stage when he is first produced before the magistrate as also when he is remanded from time to time.” The Hon'ble Supreme Court has further stated in the same judgment “Legal aid would become merely a paper promise and it would fail of its purpose. The magistrate or the sessions judge before whom the accused appears must be held to be under an obligation to inform the accused that if he is unable to engage the services of a lawyer on account of poverty or indigence, he is entitled to sat 10 crim.appeal 352-2005 and 534-2005 obtain free legal services at the cost of the State.” The Hon'ble Supreme Court has also directed “We would, therefore, direct the magistrates and Sessions Judges in the country to inform every accused who appears before the and who is not represented by a lawyer on account of his poverty or indigence that he is entitled to free legal services at the cost of the State. Unless he is not willing to take advantage of the free legal services provided by the State, he must be provided legal representation at the cost of the State.” 9 It is, thus, clear that the learned Sessions Judge was under obligation to inform appellant no.1 of his right to have a lawyer of his own choice or a lawyer from Free Legal Panel if he was not able to engage a lawyer. Since the case against the appellants is mainly proved on the basis of evidence of PW 1 and 2, I do not find it necessary to go through the details of evidence of other witnesses and I hold that since PW 1 and 2 could not be cross-examined due to mistake on the part of the learned trial judge, the trial as against appellant no.1 stands vitiated in view of the judgment of the Hon'ble Supreme Court sat 11 crim.appeal 352-2005 and 534-2005 (cited supra). 10 In the ordinary course, I would have sent the case back to Sessions Court for de novo trial or at least for a fresh judgment after cross-examination of PW 1 and 2. However considering the fact that the judgment is of the year 2004 and appellant no.1 has undergone major portion of substantive sentence imposed on him, probably few days might are left for him to come out of the jail if he is not required in any other case. It would be adding salt to the wound if I direct a fresh trial or fresh judgment after cross-examination of PW 1 and 2. In my considered opinion, the only course open to me is to come to the conclusion that since the trial as against appellant no.1 is vitiated for abovestated reason, he is entitled to be acquitted of all the charges for which he has been convicted. 11 As far as appellant no.2 is concerned, I have carefully gone through the evidence of PW 1, 2 and other witnesses and particularly, the Investigating Officer, with the sat 12 crim.appeal 352-2005 and 534-2005 assistance of the learned Amicus Curiae Mr.Arfan Sait. As already stated, the conviction is mainly based on evidence of PW 1 and 2. The third witness who was servant of PW 1 and 2 has not been examined. The evidence of PW 2 does not substantially corroborate the evidence of PW 1. Though PW 1 has identified appellant no.2 in Court to be the person who had tied the PW 2 by means of rope, PW 2 has nowhere stated that it is appellant no.2 who had tied him by means of rope. It would be apt if I produce the relevant portion of evidence of PW 2. PW 2 in this regard has stated as under:- “ One amongst them took out the rope from the bag and then one among them tied me by the rope.” 12 Though appellant no.2 was present in the Court when this part of evidence was recorded, the PW 2 has not identified appellant no.2. PW 2 had identified appellant no.2 in identification parade. It it not necessary to be stated here that the identification during the course of test identification parade is not substantive piece of evidence. The substantive evidence sat 13 crim.appeal 352-2005 and 534-2005 is the one which is given in the court. In the evidence recorded by the Court, PW 2 has not identified the appellant no.2. Therefore, identification of appellant no.2 in the identification parade is of no assistance to the prosecution in any manner. 13 I would have ignored this infirmity in the evidence of PW 2 and I could have upheld the judgment of the learned trial court on the basis of evidence of PW no.1. However I am not inclined to do so because considering the evidence of PW 2 I have a lurking doubt in my mind that the identification of appellant no.2 in the Court by PW no.1 is either at the instance of police or he was told by somebody else to identify appellant no.2. It is noted by me that the incident had occurred on 3rd November, 2001. Appellant No.2 was arrested by J.J. Marg Police Station in connection with some other case and was taken into custody by Investigating Officer of the present case in the month of March 2002. Identification parade was also held on 21st March, 2002. As such more than four months had elapsed between the date of incident and the identification sat 14 crim.appeal 352-2005 and 534-2005 parade. PW 1 has stated that it is appellant no.2 who had tied PW 2. However PW 2, as stated earlier, is silent on the part of the evidence. It is, in fact, PW 2 who had occasion to see appellant no.2 from very close quarters. If PW 2 could not identify appellant no.2, then the identification of appellant no.2 by PW 1 becomes highly questionable. On this ground itself, in my opinion, the charges against appellant no.2 also must fail. As such, appellant no.1 is entitled to be acquitted as trial against him stood vitiated for want of just and fair procedure. Appellant no.2 is entitled to be acquitted on merits. Hence, I pass the following Order :- : ORDER : I. Criminal Appeal Nos.352/2005 and 534/2005 are allowed. II. The judgment and final order passed by the 6th Ad-hoc Additional Sessions Judge, Sewree, Mumbai, dated 16th December, 2004 in Sessions Case No. 700/2002 convicting the appellants is set aside. sat 15 crim.appeal 352-2005 and 534-2005 III. The appellant Mohd.Altaf Khan Santosh Rajput @ Altaf Khan in Appeal No.534/2005 is acquitted of the offences punishable u/ss.397 of IPC, 452 read with 34 of IPC and 342 read with 34 of IPC. Fine, if any, paid by him be refunded to him. He shall be released forthwith from the prison if not required in any other case. IV. The appellant Akbar Hafij Khan in Appeal No.352/2005 is acquitted of the offences punishable u/s. 392 of IPC, 452 read with 34 of IPC and 342 read with 34 of IPC. Fine, if any, paid by him be refunded to him. He shall be released forthwith from the prison if not required in any other case. 14 Both the appeals are accordingly disposed of. (M.L. TAHALIYANI, J.)