-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO.422 OF 2002 1. Arpan Jaru Bhosle Age: 30, Occp. Laborer, R/o. Niloba Pimpalner, Tal. Parner, Dist. Ahmednagar. 2. Natwar Sitram Chavan Age: 19, Occp. Laborer, R/o. Takli Haji, Shirur, Pune. 3. Sawlaram Arjun Kale Age: 35, Occp. Laborer, R/o. Patherwadi, Parner, Dist. Ahmednagar (All are presently in Yerwada Jail) : Appellants (Orig.Accused Nos.13,6 & 8) V/s. 1. State of Maharashtra. 2. Smt.Pushpa Sambhaji Gund Tandali Gund Vasti, Tal. Shirur. : Respondents ... WITH CRIMINAL APPEAL NO.538 OF 2002 1. Niklai Bhika Bhosale Residing at: Malthan, Tal: Shirur, Dist. Pune. (Now confined at Yerawada Central Prison, Yerawada, Pune--411 006. -: 2 :- 2. Yuvraj Kalpya Kale Residing at: Ahmednagar (Now confined at Yerawada Central Prison, Yerawada, Pune--411 006. : Appellants (Orig.Accused nos.2 & 4) V/s. 1. The State of Maharashtra. 2. Pushpa Sambhaji Gund, Age 35, Occ. Housewife, R/a. Tandali, Gund Wasti, Tal. Shirur, Dist. Pune. : Respondents (No.2-Orig.Complainant) ... CRIMINAL APPEAL NO.598 OF 2002 1. Pachu Lalchand Bhosle Age: 57, Occp. Laborer, Residing at Ahmednagar. 2. Anna Sopan Kale Age: 70, Occp. Laborer, Residing at A' Nagar, Tal. Shrigondha, Dist. Ahmednagar (All are presently in Yerwada Central Jail Pune). : Appellants (Orig.Accused nos.5 & 1) V/s. 1. State of Maharashtra. 2. Pushpa Sambhaji Gund R/o. Tandali Gund Vasti, Tal. Shirur, Dist. Pune. : Respondents (No.2-Orig.Complainant) .... AND -: 3 :- CRIMINAL APPEAL NO.388 OF 2004 Dhondiram Arjun Kale Age: 40, Occp. Laborer, R/o. Patherwadi, Parner, Dist. Ahmednagar (Presently in Yerwada Jail) : Appellant (Orig.Accused no.7) V/s. 1. State of Maharashtra 2. Pushpa Shambaji Gund R/o. Tandali Gund Vasti, Tal. Shirur, Dist. Pune. : Respondents ... Mr.Javeed Hussein for appellants in Criminal Appeal No.538 of 2002. Mr.C.M.Kothari for the appellants in Criminal Appeal Nos.422 of 2002, 598 of 2002 & 388 of 2004. Mrs.Sangeeta Shinde, Addl. Public Prosecutor for State in Criminal Appeal Nos.538 of 2002 and 388 of 2004. Mr.P.S.Hingorani, Addl. Public Prosecutor for State in Criminal Appeal no.422 of 2002 & 598 of 2002. ... CORAM : BILAL NAZKI & A.A.KUMBHAKONI,JJ. DATE : JULY 08, 2008. ORAL JUDGEMENT (Per Bilal Nazki, J.) 1. These appeals arise out of the same judgement of the learned 8th Addl. Sessions Judge, Pune, in Sessions Case no.139 of 2001. Thirteen accused were tried for different offences by the learned 8th Addl. -: 4 :- Sessions Judge. Eight of them were convicted and five of the accused were acquitted. Out of the eight, the appeals mentioned above have been filed by seven of the convicted persons. Although accused no.13 was the appellant in Criminal Appeal no.422 of 2002, he had withdrawn the counsel in Criminal Appeal No.422 of 2002 though he continues to be an appellant. 2. We have heard the learned counsel appearing for the appellants and also the learned Addl. Public Prosecutor for the State,in all these four appeals. 3. Accused nos.1, 2, 4, 5, 6, 7, 8 and 13 have been convicted for the offence punishable under section 396 of the Indian penal Code and sentenced to suffer imprisonment for life. They are also fined Rs.1,000/- each, in default they have to suffer R.I. for six months. The accused nos.1, 2, 4, 5, 6, 7, 8 and 13 have also been convicted for the offence under section 397 of the Indian Penal Code and sentenced to R.I. for seven years. The accused nos.6 and 13 have also been convicted for the offence under section 376(2)(g) of the Indian Penal Code and sentenced to suffer R.I. for 10 years. They are also fined Rs.1,000/- each, in default to suffer R.I. for six months. All the sentences have been ordered to run -: 5 :- concurrently. All the other accused were acquitted. 4. The occurrence as projected by the prosecution related to an offence of dacoity-cum-murder and rape having taken place on 19.11.2000 between 9.00 and 10.00 p.m. in the house of Pushpa Gund (P.W.1). The prosecution claimed that the accused persons during the dead of night between 9.00 p.m. and 10.00 p.m. entered the house of P.W.1, looted ornaments from the person of P.W.1, her daughter and her mother-in-law, raped P.W.1 and committed murder of the husband of P.W.1. On the basis of these allegations, F.I.R. was filed by P.W.1. Police started investigation and collected evidence. Charge-sheet was filed and charges were framed. The accused pleaded not guilty and claimed to be tried. The prosecution examined in all 13 witnesses and exhibited various documents. The defence did not produce any evidence. 5. The learned counsel for the appellants submitted that basically, this case rests on the testimony of P.Ws.1 & 7 who claimed to be eye- witnesses. The learned counsel appearing for the appellants submits that admittedly the occurrence took place during night when electricity supply was off. It is also submitted that admittedly, P.Ws.1 & 7 had no -: 6 :- prior acquittance with the accused. Therefore, the identification of the accused persons by P.Ws.1 & 7 would be very pertinent, in the facts and circumstances of the case. In the light of these submissions, the testimony of P.W.9, Executive Magistrate, who conducted the identification parade also assumes importance. Keeping in view these submissions, let us now look at the testimony of P.W.1 and P.Ws.7 & 9, in the first instance. 6. Pushpa Gund (P.W.1) stated that she was residing jointly with her husband, father-in-law, mother-in-law and three children at Tandali, Gund Vasti, Taluka Shirur. Her house consists of one kitchen room, one temporary shed (chhappar) and one cattle shed. Adjoining the cattle shed, there is one room constructed in cement concrete having tin sheets. The said room is used as a store room for keeping agricultural produce. On the date of the occurrence i.e. on 19.11.2000, her father-in-law had gone to Alandi. November 19, 2000 was a Sunday and there was no electricity in the village from 6.00 p.m. The family took dinner and cleaned the utensils. The witness' s mother-in-law, husband and her two children went to sleep in chhappar. She and her daughter Rekha slept in the kitchen. At about 9.00 p.m., one person gave a call to her husband and demanded water by saying "Bhau pani Dya". Immediately she heard -: 7 :- the shouts of her husband and mother-in-law and she came outside the kitchen room. She saw five to six persons assaulting her husband by iron rod and sickle. They were demanding from her husband as to where he had kept the ornaments and money. This witness in order to save her husband from the assault of the accused fell down on the person of her husband. Her mother-in-law also fell down on the person of the husband of the witness so that her husband could be saved from the beating. At that time, the accused removed the marriage string and the beads from the person of the witness. The accused also assaulted her with iron rod and sickle on her head, cheek and back. The accused also assaulted her mother-in-law and she sustained bleeding injury to her hand. The accused also assaulted her daughter Rekha and son Ramesh. The accused removed forcibly the ornaments from her person as also her mother-in- law. The accused heavily beat her husband. The accused also heavily beat her mother-in-law. These two persons removed ear-rings from her ear and they also removed the nose-ring. The persons who had removed the ornaments from her person and who assaulted her were wearing black half-pant and half-shirt. Out of the said persons, one was having white beard and white hair. Thereafter, two persons forcibly carried her in the grass (ghas). She was shouting loudly. The said persons committed rape on her. Thereafter, the said persons came near her husband. She also -: 8 :- came near her husband. When the said persons came near her husband, they told her mother-in-law and son to go inside the room. She was standing near her husband. They told her to lift her husband and carry him inside the room. She was unable to lift her husband. The said two persons with the help of kicks, pushed her husband in the room. She was having one red-colour suitcase in the house. In the said suitcase, there were three 9 mts. sarees and four 6 mts. sarees. The said persons carried the suitcase alongwith them. The said persons came outside the house and they put the latch from outside the house. After half-an-hour, electricity resumed. At that time, one person was carrying a sugarcane tractor from the side of her house. She shouted loudly. The said person came and opened the door. Then she along with her elder son Mahadeo came outside the room. Then Mahadeo sat in the tractor and went to the house of her parents at Malwadi. Her brother Machhindra and her father Balasaheb Kalaskar came to her house. They carried them to the hospital of Dr.Lad at Kashti. Dr. Lad referred her husband for medical treatment to Daund. At Daund, the Doctor referred her to Baramati for medical treatment. But before arriving in Baramati, her husband died. The thieves had taken away her marriage string, beads and marriage string of her mother-in-law, along with the beads, her ear-rings, nose-ring, red colour suitcase containing the sarees and one silver ornament (painjan). -: 9 :- She had seen the accused who had entered her house, assaulted her husband, her mother-in-law as also her and committed rape on her. The said persons were speaking in Marathi. When she lodged the complaint against the accused, she was taking treatment in the hospital of Dr.Lad at Kashti. She lodged the complaint against the accused on 20.11.2000 regarding the incident. The police have reduced into writing the F.I.R. as per her say. The signature on the F.I.R. was identified by her as hers and it is at exh.33. 7. Before going to the cross-examination of this witness, we would like to refer to the examination-in-chief of Ramesh Sambhaji Gund (P.W.7). P.W.7 is another witness who is brought as an eye-witness. He is the son of P.W.1. He is aged 15 years when he gave deposition on 6.12.2001 i.e. more than one year after the occurrence. So he was 14 years old when the occurrence took place. After putting preliminary questions, the learned Addl. Sessions Judge satisfied himself that the witness has satisfactorily answered the questions. He stated that the incident took place when he was present in the house. On the date of the incident, his grandfather went to Alandi. The incident took place on Sunday, 19th November, 2000 between 9.00 p.m. and 10.00 p.m. There was a kerosene lamp in thatched roof and one at cattle shed. On that day at -: 10 :- about 8.00 p.m. they took their dinner. He along with his father, grandmother and brother slept in the thatched roof. His mother and sister slept in the kitchen room. Thereafter, he heard a call and some persons demanded water by saying "Bhau Pani De". All of a sudden, he heard the shouts of his father and grandmother. He along with his brother came outside the chappar. His mother and sister also came out of the kitchen. He saw five to six persons assaulting his father and grandmother by iron rod and sickle. His mother tried to rescue his father and grandmother. The said persons also assaulted his mother by iron rod and sickle. He was unable to bear the said incident and, therefore, he intervened. At that time, one person assaulted him with iron rod. One of the persons assaulted him to the front side of his head. He started crying. At that time, the said persons removed the marriage string, ear-rings and jodvi forcibly from the person of his mother and grandmother. Thereafter, two persons forcibly carried his mother in grass (ghas). The dacoits told him, his grandmother, his brother Mahadeo and sister Rekha to go inside the room. Therefore, he along with his brother Mahadeo, sister Rekha and grandmother went inside the newly constructed room. Thereafter, the dacoits told his mother to carry my father in the house. His mother was unable to carry his father in the house. Thereafter, the dacoits pushed his father inside the house by kicks. Thereafter, the dacoits took the -: 11 :- suitcase from the house and closed the door from outside. After sometime, electricity came and thereafter, he saw his father. His father sustained grievous injuries. Blood was coming out of the said injuries. His mother shouted loudly from the window. At that time, one sugarcane tractor was coming from the side of his house. The said persons opened the door of the house. His grandmother told the said persons that their relatives reside at Malwadi and asked them to give message. The said persons replied that they did not know the house of their relatives. Therefore, his brother Mahadeo went along with them. Thereafter, his maternal uncle and his grandfather came to their house along with a jeep. They carried them to the hospital at Kashti. As his father sustained grievous injuries, he was carried to the hospital at Baramati. While proceeding to the hospital, his father died. The dacoits wore half-pant and half black and white shirts. Thereafter, this witness identified the accused persons in the Court. 8. Now before going to the cross-examination of this witness, it will be necessary to see whether these two witnesses were able to identify the accused persons. The whole case revolves on the question whether these two witnesses were able to identify the accused persons or not. Admittedly, there was no electricity in the house. Further admittedly, the -: 12 :- incident took place between 9.00 p.m. and 10.00 p.m. According to these witnesses, at about 8.00 p.m. they had finished their dinner. It is doubtful whether lanterns were still on after they went to sleep, because it was stated by both the witnesses that after having dinner, they went to sleep in different rooms. Even if it is accepted that there were lanterns, even then it will be difficult to assume that these witnesses identified eight accused persons vividly and, in these circumstances, the identification parade becomes important. All the accused persons were arrested within a period of two months of the occurrence, the last accused was arrested on 5.2.2001. The identification parade was carried out on 15.2.2001. If the identification of the accused in the identification parade is established, then there would not be much difficulty in accepting the statement of P.Ws.1 & 7. If the identification parade is so defective as to raise a reasonable doubt about the identification process itself, then the statement of P.Ws.1 & 7 may not come to the rescue of the prosecution. 9. Narayan Vhalu Shelkande (P.W.9) is the Executive Magistrate who conducted the identification parade of eight accused persons on 15.2.2001. It may be pertinent to note that besides P.Ws.1 & 7, another son and daughter of P.W.1 and her mother-in-law had seen the -: 13 :- occurrence, if we go by the testimony of P.Ws.1 and 7, but the prosecution did not think it necessary to bring those persons as witnesses or use them for identifying the accused persons. Thus, only P.W.1 has identified the accused persons. 10. Narayan Shelkande (P.W.9) stated that on 27.1.2001 he was on duty at Tahsil office, Shirur. On 15.2.2001 he was working as Taluka Magistrate in Tahsil office, Shirur. He had received requisition on 27.1.2001 from Shirur police station and the police requested him to fix a date for identification parade of the accused in C.R. no.168 of 2000. He exhibited the copy of the requisition dated 27.1.2001 as exh.94. It is also curious to note that the requisition was dated 27.1.2001, but the date was fixed after almost three weeks i.e. on 15.2.2001 which is in itself a suspicious circumstance. On 13.2.2001 he wrote a letter to Shirur police station and fixed the date of identification parade on 15.2.2001. He also informed the police that the identification shall be held at Tahsil office, Shirur. He identified his letter as exh.95. On 15.2.2001 the accused came to Tahsil office, Shirur at about 1.00 p.m. by police van. Near godown of Tahsil office, he had stopped the said van. Then he saw the accused persons. He noted the features of the accused. He selected two panch witnesses. He made his opinion regarding the -: 14 :- respectability of the said persons. The said panch witnesses were Ashok Gabaji Nandre and Navnath Khanderao Dabhade. Then he selected dummy persons (non-suspects). While selecting dummy persons, he had taken precaution that the said persons are easily mixable with the accused and their features are similar to the accused. Then he went to inspect the identification room. It was a closed room. He kept the witnesses in another room. He had taken the precaution that the identifying witnesses as well as other persons connected with the police and crime should not see the accused in the identification parade. He had kept the identifying witness in the closed room. He had selected 10 dummy persons. Then he asked the police officer and constable to withdraw themselves from the room. Then he started conducting the first identification parade at 2.00 p.m. In the beginning, the panch witnesses and dummy persons were present in the identification room. Then he told one panch witness Ashok Gabaji to bring two accused from the police van to the identification parade room. Panch witness Nangre had brought two accused. He told the said accused to stay with him. Then he told the panch witness to withdraw from the identification parade room. Then he asked the accused to take whatever place they like in the parade. The accused stood between no.3 and 4 and 6 and 7 in the parade room. He -: 15 :- asked Ashok Gabaji Nangre to bring the identification witness in identification room. He asked the accused if they want to change their dress. The identifying witness Pushpa Gund (P.W.1) came in the identification room. He asked the witness to identify the accused from the identification parade in respect of the present crime. The witness has identified two accused by showing the finger. He asked the witness in what context she has identified the accused. The witness told him that the said accused had committed rape on her on 19.11.2000. The name of the said accused are Arpan Bhosale and Natwar Chavan. Then he asked the panch witness to carry the identifying witness away and to sit in a different room. Then he handed over both the accused to the police. While conducting the identification parade, he took the precaution to see that no police officer or constable was present in the identification room. The same process was repeated by P.W.9 four times. Two accused were brought at a time for the purpose of identification, but the dummies were the same. This identification parade is challenged by the learned counsel for the appellants on various grounds. 11. In the first instance, it is stated that when the accused were brought for identification before the Executive Magistrate in a van, the Executive Magistrate asked them to come out of the van at an open place which -: 16 :- was, in fact, a road as the Executive Magistrate himself stated that he saw the accused persons in an open place where there was not much of traffic. Thereafter, he put them in the room. What was the difficulty for the Executive Magistrate to see them in the room where the accused persons were later on put. Therefore, the learned counsel for the appellants submitted that this witness perhaps stopped the vehicle at an open place in a road to be seen by P.W.1. Secondly, same dummies were used on four occasions and the identifying witness being same. So it is contended that two of the accused persons in the first identification parade were identified by witness P.W.1 and only the identified accused got replaced in the second, third and fourth identification parades. All others i.e. the dummies were the same. So, it was easy for anybody to identify those who had been added to the dummies. Therefore, in any case, six of the accused persons who were identified by P.W.1 during second, third and fourth identification parade could not be relied upon and was absolutely farce. 12. Another difficulty pointed out is that there was same person used for calling the accused as well as P.W.1. It was further contended by the learned counsel for the appellants that the identification cannot be relied upon because dummies chosen by P.W.9 were, according to him, -: 17 :- between the age group of 28 and 39 as is evident from exhibits 96 to 99 and one of the accused admittedly, being accused no.6, was only 19 years old. Therefore, it was also wrong to suggest that the dummies were similar to the accused. The people in the age group of 28 to 35 may appear similar, but a person of 19 years would never look to be similar to a person of 39 years. And lastly, the whole process of identification has been challenged on the ground that the identification was carried out not on 15.2.2001 but on 14.2.2001 and the identification was not carried in Tahsil office as claimed by P.W.9, but was carried in the police station. Exhibits 96 to 99 start with the words "Identification parade is held at Shirur police station on .................." When this question was put to P.W.9, he stated that he had used a printed format supplied to him by the police and he had not made necessary corrections in the format. About the date, there appears to be interpolation and it is also accepted by P.W.9 in his cross-examination that he first wrote 14.2.2001 and then changed to 15.2.2001 without putting his signatures as he had committed a mistake in mentioning the date while filling up the format. This mistake or the deliberate attempt to change the date is seen thrice with respect to each of the format i.e. exhibits 96 to 99. For these reasons, we believe that the identification of the accused persons has not been established beyond doubt. Therefore, it -: 18 :- would not be necessary for us to deal with the testimony of other witnesses because if the identity of the accused is not established, then all other evidence, like medical evidence or testimony of the Investigating Officer is not going to help the prosecution. 13. Added to this, there is another facet of the case. The prosecution tried to establish that the ornaments which were stolen from the place of the occurrence i.e. from the house of P.W.1 were recovered during the investigation. The Investigating Officer submitted in the Court that a person by name Jayesh Khandre who was a jeweller came to the police station voluntarily and presented certain ornaments and told the police officer that these ornaments were sold to him by somebody one-and-a-half month's back. These ornaments were later on identified by P.W.1 to be belonging to her. Again the problem is the missing link between the ornaments and the accused persons. There is no evidence to connect the accused persons to these ornaments because the jeweller who, according to the Investigating Officer, brought these ornaments before him voluntarily, was not examined nor is there any evidence to show from where Jayesh got these ornaments. Therefore, there is no link between the production of the ornaments before the Investigating Officer and the -: 19 :- accused persons. 14. The learned counsel, however, submitted that there was no reason for P.W.1 or P.W.7 to falsely implicate the accused persons had they not seen and identified them. There may be strong suspicion with regard to the culpability of the accused persons, but that cannot take the shape of proof and on the basis of such suspicion, the accused persons cannot be