1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.282 OF 2003 1 Mangesh Ramchandra Karande ) Age: 25 years, Occ: Labourer ) R/at Khetwadi, 4th Cross Lane, ) Masjid Bldg No.11, Room No.2, ) Mumbai – 400 004. ) ) 2 Liladhar Pralhad Patil, ) Age 25 years, Occ: Labourer ) R/at 1/102 Desai Bldg. ) Dr. M. G. M. Marg, 3rd Kumbharwada ) Mumbai 400 004. ) ..... Appellants. (Original accused Nos.1 & 2) V/s The State of Maharashtra ) (At the instance of L.T. Marg ) Police Station) ) ...... Respondent. ­­­­­ Mr. A.P. Mundargi i/b Mr. S.P. Borade for the appellants. Mr. Rajesh More, APP for the State. ­­­­­­ CORAM: V.M. KANADE, J. DATE: 29th September, 2008 ORAL JUDGMENT: 1. Heard the learned Counsel for the appellants and the learned APP for the State. 2 2. Appellants have filed this appeal, challenging the judgment and order passed by the Sessions Court, convicting the accused for an offence punishable under section 394 read with section 34 of the Indian Penal Code and under section 397 read with section 392 of the Indian Penal Code. By the said judgment and order, the Sessions Court was pleased to sentence both the accused to suffer rigorous imprisonment for a period of 5 years and 7 years respectively and, in default of payment of fine, to suffer further rigorous imprisonment for two months respectively. 3. Appellant No.1 (accused No.1) was arrested at the spot when the robbery took place and, thereafter, he was released on bail. He has undergone the sentence which was imposed by the Trial Court and has been released after he has completed the sentence. Appellant No.2 (accused No.2), however, was released on bail. 4. Prosecution case, in brief, is that the complainant, on the date of the incident, was an employee of one Vijay Devrukar and he was coming back from the house of his owner. He was having cloth bag in which diamonds were kept in two aluminium boxes. At that time, all of a sudden, accused No.1 came near the complainant and asked him what was the time. By the time complainant looked at his watch and informed him the time, accused No.1 took out a Gupti and put it on his neck. Thereafter, accused No.2 i.e the present appellant No.2 reached there and he was having a big knife in his hand and he tried to snatch the cloth bag from the complainant. It is the case of the prosecution that the complainant resisted and did not leave the cloth 3 bag and, therefore, accused No.2 gave a knife blow on the hands of the complainant, as a result of which the complainant sustained injuries on his hands. Both the accused, thereafter, ran away with the cloth bag which was snatched by accused No.2, towards Churni Road Railway Station. However, the complainant raised hue and cry and the accused No.1 was arrested while he was sitting in taxi. The accused No.2, however, got down from the taxi and threatened the complainant and others with his knife and ran away towards the Marine Lines. Accused No.1 was apprehended on the spot and, thereafter, accused No.2 was arrested on the same day in the evening at about 7.30 p.m. FIR was lodged and in the FIR it was mentioned that an offence of robbery had been committed and the name of accused No.1 was mentioned. The name of accused No.2 was not mentioned and it was stated that one unknown person between the age of 22 and 25 had committed an offence alongwith accused No.1. Police, thereafter, recorded statements of eye witness P. W. 3 ­ Milind Parsekar and one other eye witness P. W. 7 ­ Sandip Shinde in respect of the place of offence. The identification parade was later on held at the Police Station where both the accused were identified by the complainant. A chopper was recovered at the instance of accused No.2. Charge­sheet was filed. The Trial Court disbelieved the identification of accused by the complainant in the identification parade primarily because it was held in the Police Station. Two eye witnesses viz. P. W. 3 – Milind Parsekar and P. W. 7 – Sandip Shinde turned hostile and did not support the prosecution case. The other panch witnesses also could not be traced and, therefore, the recovery of the chopper at the instance of accused No.2 was not corroborated 4 by an independent witness. The Medical Officer had been examined and he submitted the medico­legal certificate at Exhibit­37 & 38 in which he gave his opinion that the injuries which were sustained by the complainant were caused by knife. The Trial Court, however, relied on the evidence of P. W. 1 and more particularly his evidence regarding identification of accused No.2 in court. The Trial Court expressed its doubt regarding recovery of weapon at the instance of accused No.2 and did not lay any emphasis on the said evidence while convicting both the accused. On the basis of the said evidence, the Trial Court was pleased to convict both the accused for the aforesaid offences. 5. Mr Mundargi, the learned Senior Counsel appearing on behalf of the appellants, submitted that so far as appellant No.1 (accused No.1) is concerned, he had already undergone the sentence and was released. However, so far as appellant No.2 (accused No.2) is concerned, he submitted that the Trial Court had erred in relying on the identification of accused No.2 in court for the purpose of convicting him for the aforesaid offences. He submitted that the Trial Court, having disbelieved the test identification parade which was held in the Police Station, ought not to have relied upon the identification of accused No.2 by the complainant in Court in view of the fact that the first test identification was disbelieved and a logical inference which could be drawn was that the accused No.2 could have been seen by the complainant in the Police Station or could have been shown by the Police before the test identification parade. He submitted that, that being the position, no emphasis could have been laid on the fact that 5 accused No.2 was identified in the Court Room subsequently. He submitted that identification of accused No.2 was the only piece of evidence which was available with the prosecution as there was no other evidence for establishing the identity of accused No.2. 6. There is much substance in the submissions made by the learned Senior Counsel appearing on behalf of the accused. The Trial Court, having discarded the first test identification parade of accused No.2, could not have relied on the identification of accused No.2 by the complainant in court. Firstly, a logical inference which could be drawn from the rejection of the first identification parade was that the Police had an opportunity to show the accused No.2 to the complainant in the Police Station. Accused No.2 having thus been shown by the Police, his subsequent identification in court also cannot be relied upon. Secondly, the Trial Court has clearly lost site of the fact that the accused No.2 being shown to the complainant prior to the identification by him in court, the said evidence of identification by the complainant in court loses its significance and could not have been relied upon by the Trial Court for the purpose of establishing his identity in the commission of the said offences. Once it is held that the identification by the complainant of accused No.2 cannot be relied upon, there is no other evidence available with the prosecution on the basis of which the appellant No.2 can be convicted. 7. P. W. 1, complainant herein, in his evidence has stated that accused No.2 was having a big knife in his hand and that he had inflicted injuries on his hands with the said knife. However, the 6 weapon which is recovered by the Police at the instance of accused No.2 is a chopper and not a knife. Apart from that, none of the panch witnesses who have carried out the panchanama was ever examined by the prosecution. No attempt had been made by the prosecution to even make a statement before the Court that these witnesses could not be traced. The Investigating Officer also has not stated what steps were taken by him to locate these panch witnesses. The recovery of chopper, therefore, at the instance of accused No.2 also is not of any assistance to the prosecution. Even the name of accused No.2 is also not mentioned in the FIR. 8. It is no doubt true that the Medical Officer who has been examined has established that certain injuries were there on the hands of the complainant but in the absence of any other proof, it cannot be inferred that the accused No.2 was responsible for inflicting these injuries. Further, it is an admitted position that the stolen property was not recovered at the instance of the accused. Two eye witnesses who were examined by the prosecution have turned hostile. Therefore, in my view, the Trial Court clearly erred in relying solely on the identification parade of accused No.2 by the complainant in court more particularly when the Trial Court itself discarded the identification of accused No.2 by the complainant in the Police Station. 9. Under these circumstances, in my view, the prosecution has failed to establish that the accused No.2, appellant No.2 herein, was involved in the commission of the said offences. 7 10. Accordingly, the following order is passed:­ O R D E R In the result the conviction of appellant No.1 (accused No.1) is confirmed. He has already undergone the sentence and has been released by the jail authorities. The appellant No.2 (accused No.2) is hereby acquitted of the offence punishable under sections 394, 397 read with sections 392 and 34 of the I.P.C. His bail bond stands cancelled. Appeal is accordingly disposed of in the above terms. (V.M. KANADE, J.)