1 Appeal 399-09.odt Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.399 OF 2009 Deepak Badru Mane .Appellant Age:30 yrs, Occu:service R/o.Shri Ganesh Niwas Mitra Mandal Chawl, Anand Wadi, Kurar Village Malad(E), Mumbai. V/s. The State of Maharashtra .Respondent WITH CRIMINAL APPEAL NO.638 OF 2010 Sanjay Madhukar Nivatkar .Appellant Age:35 yrs R/o.Gandhi Nagar, Janta Colony 1/14, B-Ward Room No.1, Jogeshwari(E) Mumbai. V/s. The State of Maharashtra .Respondent Mr.Rajabali Dubey, Advocate, for the Appellants Ms Rajeshree Gadhvi, APP, for the Respondent - State CORAM : R.C.CHAVAN, J. DATE : 7TH DECEMBER, 2011 2 Appeal 399-09.odt ORAL JUDGMENT . These two Appeals are directed against conviction of the appellants by the 3rd Ad-hoc Additional Sessions Judge, Sewree, Mumbai, for the offences punishable under Sections 395, 392/395 read with Section 397, and Section 450 of the Indian Penal Code and sentence of rigorous imprisonment for five years each with a fine of Rs.200/-, rigorous imprisonment for seven years each, and rigorous imprisonment for five years with a fine of Rs.200/- respectively imposed on the three counts on conclusion of Sessions Case No.327 of 2007 before the learned Judge. 2. Facts which are material for deciding these appeals are as under :- On 8th August, 2006 at about 9:00 p.m. when the first informant and other members of Durga Co-operative Credit Society were in the 3 Appeal 399-09.odt process of completing counting of cash collected through the day, the two appellants entered the cabin of the first informant Suresh Patil and at the point of revolver forced him to part with a cash of ` 95,000/-. They also tied up the first informant and other employees and then left. On a report by Suresh Patil, an offence was registered and investigation commenced. In course of investigation, the appellant Deepak Badru Mane in Criminal Appeal No.399 of 2009 arrested on 6th October, 2006. Appellant Sanjay Madhukar Nivatkar in Criminal Appeal No.638 of 2010 was arrested on 9th November, 2006. Appellant Deepak Mane stated in course of investigation on 15th October, 2006 that he had received a share of ` 10,000/- out of the amount robbed and had spent ` 9,000/- but kept a sum of ` 1,000/- at his house. This amount was recovered on 15th October, 2006 in presence of panchas. On 21st August, 2006 the appellant Deepak was subjected to Test Identification 4 Appeal 399-09.odt Parade conducted by PW-3 Dattaram Jairam Kambli, a Special Executive Officer. At this parade held in Arthur Road Prison, PW-1 Suresh Mahadeo Patil, PW-4 Suhas Pandurang Ajgekar and PW-5 Shailesh Chandrakant Shinde identified the appellant Deepak. 3. After the arrest of appellant Sanjay, he was likewise subjected to Test Identification Parade held in Central Prison, Thane on 4th December, 2006. At this parade PW-5 Shailesh Shinde did not identify the appellant Sanjay . PW-1 Suresh Patil and PW-4 Suhas Ajgekar identified the appellant Sanjay at this parade. The third person, accused No.2 Rahim Rais Khan had also been arrested and recovery of ` 3,000/- was made at his instance in course of investigation. After completion of investigation charge sheet was sent to the Court of the learned Metropolitan Magistrate, 32nd Court, Bandra, Mumbai, who committed the case to 5 Appeal 399-09.odt the Court of Sessions, Sewree, Mumbai. 4. The accused persons pleaded not guilty to the charge of the offences punishable under Sections 395, 392/395 read with Section 397, Section 450 of the Indian Penal Code and Sections 3 & 25 of the Arms Act. They were, therefore, put on trial at which the prosecution examined in all 10 witnesses in its attempt to bring home guilt of the appellants. After considering the prosecution evidence in the light of defence of false implication, the learned Additional Sessions Judge acquitted the original accused No.2 Rahim Rais Khan of all the charges and the two appellants of offence punishable under Sections 3 and 25 of the Arms Act. He, however, proceeded to convict the appellants and sentenced them for the remaining offences as indicated earlier. Aggrieved thereby, the appellants are before this Court. 6 Appeal 399-09.odt 5. I have heard the learned counsel for the appellants and the learned APP for the respondent  State. With the help of both the learned counsel I have gone through the evidence on record. PW-1 Suresh Patil states about the appellants' entering in his cabin and robbing him of cash of ` 95,000/- on the point of revolver. He also states about the appellant Sanjay speaking on mobile phone and informing some bhai and that the task had been accomplished. PW-4 Suhas Ajgekar and PW-5 Shailesh Shinde corroborated the evidence of PW-1 Suresh Patil as regards identification of Sanjay Nivatkar. PW-2 Ramesh is a panch witness at the recovery of sum of ` 1,000/- at the instance of appellant Deepak, who initially did not support the prosecution, but on being cross examined by the learned APP stated about this recovery and he proved memorandum and panchanama at Exhibit 18. PW-3 Dattaram Jairam Kambli is the Special Executive Officer before 7 Appeal 399-09.odt whom the two Identification Parades were conducted. The evidence of PW-6 Dashrath Vitthal Wagh about recovery of ` 3,000/- from accused is not relevant for considering complicity of the present appellants. PW-7 PSI, Deepak Anant Sawant received a report and performed panchanama of the spot. PW-8 PSI Sanjay Malharrao Nimbalkar, PW-9 PI Lalsingh Gopinath Pawar and PW-10 Additional Commissioner of Police, Ashutosh Karbhari Dumbre stated about the investigation and sanction for prosecuting the accused under the Arms Act. 6. The learned counsel for the appellants submitted that identification of the two appellants by eye witnesses PW-1 Suresh Patil, PW-4 Suhas Ajgekar and PW-5 Shailesh Shinde is thoroughly unreliable and therefore, ought to be rejected. He submitted that first, name of the appellant Deepak has all along been mentioned wrongly as Deepak Buddhu Mane in the memo of 8 Appeal 399-09.odt Test Identification Parade at Exhibit 31 when in fact, name of appellant Deepak is Deepak Badru Mane. As rightly submitted by the learned APP this is really inconsequential and does not affect Test Identification Parade, since the person put up at the parade was the appellant Deepak. 7. The learned counsel for the appellant next submitted that identification parades were held after considerable loss of time and therefore, possibility of witnesses having an opportunity to see the accused persons from the date of their arrest till they were paraded, had not been ruled out. He submitted that the investigating officer had absolutely no explanation to offer as to why the parade was not promptly held after the appellants were arrested. Relying on Judgment of the Supreme Court in Rajesh Govind Jagesha Vs. State of Maharashtra, reported at 2000 ALL MR (Cri) 258 9 Appeal 399-09.odt the learned counsel submitted that the evidence about these Test Identification Parades ought to be rejected outright. In that case, the offence had taken place on 2nd January, 1993. Accused No.2 therein was arrested on 20th January, 1993 and was put up at the Test Identification Parade on 13th February, 1993. In this context, the Supreme Court observed that when there is unexplained delay in holding the identification parade, the evidence of the prosecution regarding identity of an accused cannot be held absolutely reliable and in such a case the accused is entitled to the benefit of doubt. It is, however, to be noticed that in para 5 of the Judgment the Court observed that looking into the attending circumstances and the totality of the evidence produced in the Court, their Lordships were of the opinion that as the test identification parade regarding accused No. 2 was not conducted properly and suffered from unexplained delay, he was entitled to the 10 Appeal 399-09.odt benefit of doubt. Thus, delay is not the only ground on which evidence of test identification was rejected. 8. The learned APP submitted that a Division Bench of this Court in Kayyumkhan @ Shankar S/o. Yusuf Khan Vs. The State of Maharashtra, reported at 1997 ALL MR (Cri) 1004 was considering test identification held about a month of the arrest of the accused and did not find anything amis about the said parade. The learned counsel for the appellants submitted that this Judgment of 1997 may not be taken as laying down the correct law in the face of the Judgment of the Supreme Court on which he has placed reliance. 9. I have carefully considered these contentions. First, there can be no rule of law that the Test Identification Parade must be held within a particular time of the arrest of the 11 Appeal 399-09.odt accused persons or a parade held after a lapse of particular period of time could be held as unreliable. As observed by the Supreme Court in para 5 of the Judgment in Rajesh Govind Jagesha Vs. State of Maharashtra, reported at 2000 ALL MR (Cri) 258, the reliability of a parade was decided on the totality of the circumstances and the evidence tendered. Therefore, there cannot be any rule of law that a parade held after a month would be bad. The question of reliability of an identification parade or identification of the miscreants in the Court by the witnesses is in the realm of appreciation of evidence and there can be no rule laying down any particular parameter which could conclude the case either ways. It would be for the trial Judge to decide upon considering the evidence tendered before him whether the evidence is reliable or not. 10. Ideally, the investigating officer 12 Appeal 399-09.odt ought to have explained the reasons which prevented him from subjecting the appellants to Test Identification Parades soon after they were arrested. However, it may be seen that it is not that the parade was held after an inordinately long time. The very fact that PW-5 Shailesh Chandrakant Shinde had refused to identify the appellant Sanjay, in a parade held after about 25 days after the arrest is a guarantee of the fact that the witnesses did not have an opportunity to see the accused persons prior to their being paraded. Had the investigating officer or the police shown the appellants to the witnesses, PW-5 would not have failed to identify the appellant Sanjay as well. Therefore, this ground, of delay in holding identification parade, has no bearing on the reliability of the parades held. 11. As rightly pointed out by the learned 13 Appeal 399-09.odt APP, the evidence of PW-3 Dattaram Kambli, Special Executive Officer before whom parades were held, clearly shows that the officer had taken all the precautious as prescribed, ensuring that the period was held properly. The witness had stated that he had ascertained from the eye witnesses as well as accused that there was no occasion for the witnesses to see accused persons. The parade was duly held by taking all the precautions to prevent witnesses from having a glimpse of the accused when they were being produced for the parade. The learned counsel for the appellants submitted that after the accused had taken his position amongst the dummies, PW-3 had sent one of the panchas to fetch witness and therefore, according to him, panch would have been in a position to tell about the position of the accused to the witness. This contention too has to be rejected because there would ordinarily be no reason for a panch to side with the prosecution. In this 14 Appeal 399-09.odt trial itself there is a panch PW-2 Ramchandra Shinde, who had refused to support the prosecution. Therefore, there would be no reason for a panch to align himself with the investigating officer and communicate with the witnesses the position of the accused amongst dummies. In any case, non-identification of appellant Sanjay by PW-5 is the proof of the fact that the panchas could not have told the position of the accused amongst dummies. 12. The learned counsel for the appellants next submitted that identification of appellant Sanjay by PW-1 and PW-4 is vitiated because the appellant Deepak had an injury to his neck and the officer conducting the parade had not taken steps to have dummies, who had a similar injury to the neck or who had been subjected to a make up so that the appearances of the dummies and the accused was similar. The learned counsel submitted that this burn mark would have marked 15 Appeal 399-09.odt appellant Deepak out of the persons who did not have similar mark. He pointed out that PW-1 stated that one of the accused had a dressing to his neck and therefore, with this significant identifying mark the witnesses could have easily identified the appellants. He submitted that in such a case, identification is unreliable and for this purpose cited Judgment of a Division Bench in Ganesh Bhagwati Pandian v. State of Maharashtra, reported at 1985 CRI.L.J. 191. In that case, the suspect was supposed to have a clean shaven (tonsured) head, with tuft of hair known as a shendi. The other dummies did not have a clean shaven head as a shendi and this marked out the suspect. The learned APP, on the other hand, relied on Judgment of a learned Single Judge in Rajan Shrinivas Jatan Vs. The State of Maharashtra, reported at 1999 ALL MR (Cri) 2000 where this Court held that though the witnesses may have a special identifying mark which dummies may not be having, this in itself 16 Appeal 399-09.odt would not be enough to discard the evidence of the parade, unless it is shown that the witnesses had identified the suspect with reference to such special mark of identification. The learned APP submitted that the evidence on record does not show that the witnesses had identified the suspects with reference to burn mark. In any case, what the witness had seen at the time of the incident was a dressing at the neck and what had been seen by him at the time of Test Identification Parade was scar at the place of the dressing. The question as to whether the evidence about identification has to be accepted or not is again one of the appreciation of the evidences and there cannot be any rule of law about reliability or otherwise oral evidence tendered. In view of this, even this identification of appellant Deepak has to be accepted in spite of his having a scar which was possibly missing in the dummies who had been set up at the parade. 17 Appeal 399-09.odt The learned counsel for the appellants also submitted that the appellant Sanjay had not been spontaneously identified by PW-1 Suresh and PW-1 had taken about 10 minutes for identifying the suspect. He drew my attention also to the admission of PW-1 in para 44 of his deposition. He states that he was called in police station after 15-20 days of arrest and said that the appellant Sanjay was the same person, who had entered into his cabin on the day of incident. He stated that on 2nd December, 2006 he had been informed by the police that identification was to be held on 4th December, 2006. According to the learned counsel for the appellants, appellant Sanjay had been shown to the witnesses about 15-20 days after the arrest and the witness identified the suspect at parade after he had an occasion to see the suspect so soon before the parade. If that was so, it is enigmatic that the witnesses took ten minutes to identify the suspects at the parade. It has to 18 Appeal 399-09.odt be noticed that the time stated by the witnesses about being called to police station i. e. 15-20 days after the arrest would exclude the possibility of accused being with police, since police custody would be over in two weeks. 13. The learned counsel for the appellants submitted that since the evidence of identifying the suspect is not backed up by any recovery, this evidence should be considered as weak and therefore, insufficient for handing down a conviction. He submitted that the evidence about recovery of ` 1,000/- at the behest of appellant Deepak coming from PW-2 Ramchandra Shinde and PW-9 PI Lalsingh Pawar is unhelpful, since what was recovered is unidentified cash of ` 1,000/- after a gap of over two months after the incident. Though the evidence of this recovery of ` 1,000/- is discarded, there is no reason why the witnesses, who had been robbed would identify the appellants in place of real 19 Appeal 399-09.odt miscreants. The learned counsel for the appellants submitted that Ramchandra had stated that he could not say as to where house of the appellant is located because it was night. The panchanama was over by 6:10 p.m.. As already observed, even if this evidence of recovery is excluded, there is enough evidence of the eye witnesses which the learned Judge found to be reliable. 14. The learned counsel for the appellants submitted that no independent witnesses have been examined though such witnesses should have been available, considering the location of the society's office. Since the incident took place inside the cabin of PW-1, it is difficult to imagine as to what to independent witnesses could have been available. Therefore, even on this ground, it cannot be said that the learned trial Judge erred in concluding about guilt of the appellants in the incident of robbery where 20 Appeal 399-09.odt fire arm was brandished. 15. Therefore, conviction of the appellants for the offences punishable under Sections 395, 392/395 read with Section 397 and under Section 450 of the Indian Penal Code cannot at all be faulted. The learned counsel for the appellants next submitted that the sentence inflicted upon the appellants is unduly harsh and there was really no warrant to sentence the appellants to suffer R.I. for seven years for the offences punishable under Section 392/395 read with Section 397 of the Indian Penal Code. He submitted that though a deadly weapon was brandished, it was actually not used in the commission of offences for attracting minimum punishment of seven years for the offence punishable under Section 397 of the Indian Penal Code. It should have been necessary for the prosecution to show that offender had actually used a deadly weapon or caused alarm to any 21 Appeal 399-09.odt person. In this case, weapon had been merely brandished and therefore, according to the learned counsel, the offence would be one punishable under Section 392 of the Indian Penal Code and not one punishable under Section 397 of the Indian Penal Code. In my view, use of a deadly weapon for the purpose of Section 397 of the Indian Penal Code includes merely showing the weapon, as the gist of offence is putting persons under fear of being harmed by use of weapon. Therefore, the conviction of appellants for the offences punishable under Section 392 read with Section 397 of the Indian Penal Code cannot be faulted. 16. Since the punishment inflicted is minimum prescribed for the offence punishable under Section 392 read with Section 397 of the Indian Penal Code, no interference is called for. 22 Appeal 399-09.odt 17. In view of this, both Criminal Appeals are dismissed. (R.C.CHAVAN, J.)