1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 356 OF 2005 WITH CRIMINAL APPEAL NO. 418 OF 2004 Mahendra Ramprakash Pandey Mithilesh Ramprasad Gupta ... Appellants V/s State of Maharashtra ... Respondents Mr. Nitin Muley, Advocate for the appellant in Criminal Appeal No. 356 of 2005. None for the appellant in Criminal Appeal No. 418 of 2004. Mr. A.S. Shitole, APP for the State Coram: Mrs. Mridula Bhatkar, J. Date : 9th April 2009 JUDGMENT: . These two appeals are filed by original accused Nos. 1 and 2 against the order of conviction dated 11th December 2003 delivered by the Additional Sessions Judge, Greater Mumbai. Both the accused were charged for the offence of murder u/s. 302 of the Indian Penal Code as also for the offence under the Arms Act and the Bombay Police Act. However, they were convicted for 2 the offence punishable under Section 304 Part II and u/s. 4 r/w. 25 (1-B)b, 27, 35 of the Arms Act and u/s. 37(i)(a) r/w 135 of the Bombay Police Act for a period of nine years R.I. and fine. 2. Brief facts pertaining to this case are as follows: 3. On 22nd August 2001, a taxi of PW-1 was hired by the accused Nos. 1 and 2 at Colaba market at about 8 p.m. and they asked PW-1, a taxi driver to take them to Charni Road. While going towards Charni Road, near Colaba petrol pump, they asked the taxi driver to stop the taxi and they brought one more passenger. PW-1 drove the taxi towards Worli Sea-face, the destination told by the passengers. The talk on some monetary transaction between the passengers was going on and the first two were demanding money from the third one the victim. When the taxi reached near Lala Lajpatray College, passengers asked the taxi driver, PW-1 to stop the vehicle by the side of the road. Their talk turned into quarrel and further led to the assault. PW-1 taxi driver got frightened and he alighted from the taxi, went little away from the taxi and started shouting for the help. Some persons who were sitting on the parapet wall of the sea-shore came forward and 3 they witnessed that accused Nos. 1 and 2 assaulting and stabbing the victim with chopper and knife. The accused Nos. 1 and 2 thereafter came out of the taxi and threatened the persons gathered there and the duo started running away from the spot. However, the persons gathered there successfully nabbed one of the accused on the spot and the second accused was accosted by other persons and was taken to the Tardeo Police Station. The victim succumbed to the multiple injuries and the offence u/s. 302 of the Indian Penal Code as also under the Arms Act was registered against the accused Nos. 1 and 2. 4. In the present case, four out of eleven prosecution witnesses were the eye witnesses. Learned Counsel for the accused Nos. 1 and 3 has submitted that the learned Trial Court has lost the sight of important factor that the prosecution did not tender any evidence on the point of test identification parade. Learned Counsel for the accused further submitted that the eyewitnesses PW-1, PW-2, PW-3 and PW-4 have identified the accused in the Court for the first time and such identification has no value. PW-1 taxi driver was not confident at the time of identification of the accused in the court hall and thus chain of 4 identification is totally missing from the evidence of the prosecution. 5. The purpose of the Test Identification Parade is to give an opportunity to the witness to identify the culprit. Thus, it is a matter of confirmation based on the aspect of visual memory of an individual. It is true that if a person is unknown and is seen at the time of the commission of offence for the first time then he is to be again produced before the witnesses so that the witness can confirm his / her identification and hence it is an opportunity for the witness to co-relate the person and the incident. Thus, when the matter comes before the Court in due course of time then the identification of the accused in the dock by the witness is always assured and is reliable. 6. In the present case, both the accused were caught immediately after the incident. One accused was caught on the spot and the other was caught after some distance when he was trying to flee away from the spot. Admittedly, in the present case, police did not collect the evidence of Test Identification Parade, the point is whether under such circumstances, test identification 5 parade was necessary. 7. The time gap between the incident and the arrest of the offenders is a decisive factor for the need of the Test Identification Parade. Test Identification Parade minimizes the chances of error of the mistaken identity. If the offender is apprehended immediately after the incident and taken to the police station, in that event the Court has to consider the degree of the possibility of the mistaken identity. Dim light, less visibility, chaotic situation or unmanageable crowd may provide ground for the defence of mistaken identity. However, the proximity between the time of the commission of offence and the apprehension of the offenders dilutes the possibility of mistaken identity and under such circumstances, the test identification parade if not conducted, the case of the prosecution on that point cannot be dislodged. 8. Learned Advocate for the accused has further pointed out that the Panchanama of recovery of the weapon i.e. knife should not have been believed. The said knife was taken out from the rock at the sea shore by the accused. Further he submitted that son of the Head Constable was used as Panch i.e. PW-8 for 6 the said Panchnama. Learned APP tried to explain that Panchas often turn hostile and the cases end in acquittal and the police have no choice for Panch witnesses. 9. This explanation on the point of selection of Panch is not acceptable because it is the duty of the police to search credible panch and to give him support throughout the trial. A family member of the police personnel may fit in the legal requirement of the Panch, however, such family member of the police may speak in favour of the police and he may not act impartially. 10. The blood group of the deceased / victim was 'AB' and the same was matched with the blood stains appearing on the clothes of the accused Nos. 1 and 2. The witnesses have described that one person caught hold of the hands of the deceased and the other person assaulted victim with chopper and so there was an injury on the neck of the victim and the blood started oozing from that injury. The eyewitnesses were passersby and their testimony is very natural and credible. In the present case, though the evidence of recovery sounds weak yet the evidence of eyewitnesses and other circumstantial evidences are 7 absolutely cogent, trustworthy, unshattered and sufficient to prove the fact of culpable homicide. 11. Learned Advocate appearing for the accused on the point of sentence submitted that the prosecution could not establish motive behind this act and this fact was considered by the learned Trial Court, and hence the charge u/s. 302 of the Indian Penal Code was reduced to S. 304 Part-II of the Indian Penal Code. By picking up the same thread, he urged that this factor needs to be considered for reducing the sentence of 9 years. Learned APP strongly opposed his submission of leniency and pointed out that the prosecution had brought on record that the offence was committed for money, and therefore, the monetary transaction was the motive behind the offence. It was not an act which had taken place on a spur of moment but the accused were carrying weapons with them. Learned APP also pointed out the fact of the multiple stabbings. The post-mortem report corroborates evidence of multiple injuries which are nearly 18 in numbers including on the vital part. The offence had taken place in the daylight and crowded location of the city of Mumbai hence considering gravity of the offence and threat to Law and Order, I 8 am not inclined to reduce the sentence. By this order, both the appeals stand dismissed. (Mrs. Mridula Bhatkar, J.) mvp/-