sat 1 crim.appeal 775-2006 and 1096-2006 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 775 OF 2006 Mohammed Alam Mohammed Ali Shaikh ) Aged 23 years, Indian Inhabitant, ) Occ.Service, Permanent Resident of ) Janata Chawl Committee, R.No.B/31, ) 90 Feet Rd., Dharavi, ) Mumbai 400 017. ) (Presently loaded at Arthur Road Central ) Prison, Mumbai Maharashtra as convicted ) prisoner in the present matter ) ...Appellant/ Orig.Accused No.2 vs. The State of Maharashtra ) (At the instance of Nagpada Police Station ) vide CR No.316 of 2001) ) ...Respondent AND CRIMINAL APPEAL NO. 1096 OF 2006 Noor Hasan Mohammed Kasam Ansari ) Age :-26 years, R/o.Samta Seva Mandal ) Sangam Nagar, Antop Hill, Wadala, ) Mumbai - 37. ) (Presently loaded in Kolhapur Jail) ) ...Appellant/ Orig.Accused No.1 vs. The State of Maharashtra ) (At the instance of Nagpada Police Station ) vide CR No.316/2001) ) ...Respondent sat 2 crim.appeal 775-2006 and 1096-2006 Mr.Khan Abdul Wahab for the Appellants Ms.Alpa Javeri, APP for the State. CORAM : M.L. TAHALIYANI, J. DATED : NOVEMBER 18, 2011 JUDGMENT :- 1 Both the appellants are convicted by the judgment and order dated 30th June, 2006 passed by the Additional Sessions Judge, Greater Mumbai, in Sessions Case No. 362/2003. Appellant Noor Hasan Mohammed Kasam Ansari in Appeal No.1096/2006 and appellant Mohammed Alam Mohammed Ali Shaikh in Appeal No.775/2006 were the original accused nos.1 and 2, respectively in the said Sessions case. There were two more accused i.e. accused no.3 Juber Wajuddin Kamaluddin Khan and accused no.4 Jainul Abadin Hatiulla Shaikh. The appellants and accused nos.3 and 4 were tried by the learned Sessions Judge for the offences punishable u/ss. 392 and 452 of IPC. On conclusion of trial, accused no.4 was acquitted. The appellants and accused no.3 have been convicted for the offences punishable u/ss.392 and 452 of IPC. sat 3 crim.appeal 775-2006 and 1096-2006 They are sentenced to suffer RI for four years each and to pay a fine of Rs.500/- each for the conviction u/s. 392 of IPC. They are further sentenced to suffer RI for one year each and to pay a fine of Rs.100/- each for the offences punishable u/s. 452 of IPC. Both the sentences are directed to run concurrently. 2 PW 3 Rameshkumar Jain, who is the complainant, was running a Scrap shop at Kamathipura Lane No.5. The incident had occurred in the year 2001. On the date of incident, the complainant had brought Rs.2 lakhs from his residence for transacting regular business of his shop. Rs.1 lakh was deposited in the bank and rest of the amount was lying in the safe. While PW 3 was just relaxing in the afternoon in the shop itself, the appellants and accused no.4 had allegedly entered the shop and demanded key of safe from PW 3. PW 3 followed the directions given by the said persons and handed over the key to them. It is alleged that at the point of gun, the appellants and other accused had taken away cash amount and mobile phone from the shop. The matter was reported to Nagpada Police sat 4 crim.appeal 775-2006 and 1096-2006 Station vide complaint (Exhibit 11). Spot panchnama was drawn vide Exhibit 8. Statements of witnesses were recorded during the course of investigation. 3 The abovestated incident had occurred on 7th September, 2001 in between 2 p.m. to 3 p.m. The appellants were arrested on 1st November, 2001. It is alleged that while the appellant Noor Hasan was in custody, he volunteered to show some sewing machines. They were seized by the police under the panchnama. The memorandum of statement of the appellant is Exhibit 14 and panchnama in respect of seizure of sewing machines is Exhibit 14A. Some of the property was allegedly recovered at the instance of accused no.4 who had been acquitted. Identification parade was arranged on 17th February, 2002 and 24th February, 2002. The accused were identified by the witnesses in two different identification parades held by Special Executive Officer. After completion of investigation, chargesheet was submitted. When the case came up for trial before the learned Sessions Judge, the charge was framed sat 5 crim.appeal 775-2006 and 1096-2006 against the appellants and accused no.3 and 4. They had pleaded not guilty and claimed to be tried. As already stated, during the course of trial, accused no.4 was acquitted. The appellants and accused no.3 Juber Wajuddin have been convicted. These two appeals, as already stated, are filed by the original accused nos. 1 and 2. 4 Learned Counsel Mr.Wahab is heard on behalf of the appellants and learned Additional PP Ms.Javeri appears for the State. 5 Mr.Wahab has submitted that evidence of prosecution witnesses in respect of identification of the appellants is totally unworthy of reliance. As far as recovery of property is concerned, police have recovered three sewing machines at the instance of appellant no.1 Noor Hasan. 6 The learned Additional PP has submitted that there is sufficient evidence in respect of identification of the sat 6 crim.appeal 775-2006 and 1096-2006 appellants by the witnesses in the Court. The appellants have been identified by the witnesses to be the same persons who were part of the alleged crime. 7 I have gone through the evidence of the witnesses. PW 1 is the panch witness. His evidence does not require any discussion in the present judgment. Similarly, the evidence of PW 2 also does not require any discussion. Moreover, PW 2 was hostile to the prosecution and had not supported the prosecution case. The star witnesses in this case are PW 3 and 4. PW 3 is the complainant. He has stated in his evidence that the incident had occurred sometime in the year 2001. It was summer. Usually, he used to keep around Rs.1 lakh cash in hand. On the date of incident while he was relaxing, suddenly three persons had entered the shop and committed robbery by removing cash from the safe and mobile phones at the point of gun. The offence was committed after the robbers had entered the shop and had downed the shutter. While the incident was in progress, one of the servants of the PW 3 had returned from sat 7 crim.appeal 775-2006 and 1096-2006 bank and he was about to open the shutter. However PW 3 warned him that he should leave the place immediately. After the incident was over and the robbers had left the shop, PW 3 gave phone call to his brother to arrive at the shop. After the due deliberation, matter was reported to police vide FIR (Exhibit 11). The description of the assailants was given by PW 3 in the FIR (complaint). After about 3 months of the incident, PW 3 was taken to Arthur Road prison by Nagpada Police Station. Identification parade was held in the Arthur Road prison. It is stated by him that he had identified the assailants from the persons standing in the row. He had identified three assailants from the row during the said identification parade. During the course of recording of his evidence, this witness identified the appellants and accused no.3 Juber Wajuddin to be the persons who had committed the offence. 8 PW 4 has given a very cryptic evidence. He has stated that he was working in the shop of Mangilal Jain. Mangilal is father of PW 3. PW 3 was looking after the sat 8 crim.appeal 775-2006 and 1096-2006 business. The business hours were from 9.30 a.m. to 9.30 p.m. There were three other servants working in the said shop in addition to PW 4. According to this witness, three persons had entered the shop on the date of incident. One of them went outside the shop to keep a watch and he downed the shutter of the shop. The two persons who were inside the shop threatened PW 3 and PW 4 that they should not make any hue and cry and that in the event of they creating any noise, they would be killed. One of them took key from PW no.3 and removed cash from the safe. Both of them took away two mobile phones of PW no.3. After taking away mobile phones and cash, they lifted the shutter and escaped from the shop. Matter was reported to police. 9 Within half an hour, police reached the spot. PW 4 had identified the appellants to be the same persons who were inside the shop. As far as identity of the accused during the course of investigation is concerned, this witness took part in the identification parade which was held after about one year. sat 9 crim.appeal 775-2006 and 1096-2006 10 After having gone through the evidence of PW 3 and 4 and the Investigating Officer PW 5, I am of the view that there is no necessity to refer to the other evidence adduced by the prosecution. The evidence of PW 5 is in respect of the registration and investigation of the offence and the arrest of the accused. This witness has stated that three sewing machines were recovered at the instance of appellant no.1Noor Hasan under panchnama (Exhibit 14A). The identification parades were held on 17th February, 2002 and 24th February, 2002. Some of the property was recovered at the instance of the accused no. 3. The property recovered at the instance of accused no.3 is a Nokia make mobile phone. As already stated, after careful examination of evidence of PW 3, 4 and 5, I do not think that it is necessary to refer to the evidence of panch witnesses. The evidence with regard to identification of the appellants appears to be not reliable. I have noted that the appellants were not present in the Court when the evidence of PW 3 was recorded. The appellants were brought from the prison on next date of hearing only for identification by PW 3. Though the appellants sat 10 crim.appeal 775-2006 and 1096-2006 were arrested on 1st November, 2001, the identification parades were held on 17th February, 2002 and 24th February, 2002 for which there is no reasonable explanation. PW 4, in fact, has stated that he took part in the identification parade after about one year of the incident. As such, the evidence of this witness with regard to identification of the appellants does not inspire confidence. The Special Executive Officer and the panch witnesses who conducted the identification parade have not been examined. No doubt, the identification of the accused in the court is a substantive evidence and the identification during the investigation is a part of the investigation and is mainly meant for the Investigating Officer to ascertain whether his investigation is in the right direction. However when the identification parade is held, it is to be held in the manner prescribed by the guidelines. In the present case, there is no evidence at all of any nature as to how the identification parade was held.uh As such it appears to be not safe to rely upon evidence of PW 3 and 4 with regard to identification of the appellants. sat 11 crim.appeal 775-2006 and 1096-2006 11 As far as recovery of property is concerned, three sewing machines have been recovered allegedly at the instance of appellant Noor Hasan. It appears to be case of prosecution that these machines were purchased from the proceeds of crime committed by the appellants. However, there is no evidence to establish this fact. As such, in brief, there was no cogent and reliable evidence to convict the appellants for the offences with which they have been charged. I have gone through the judgment of the learned trial court. It appears that the learned trial court itself, in fact, was at pains to reconcile the evidence of witnesses. For all these reasons, I have come to the conclusion that both the appeals need to be allowed. Hence, I pass the following order :- : ORDER : 1. Both the appeals are allowed. 2 The judgment and order passed by the sat 12 crim.appeal 775-2006 and 1096-2006 Additional Sessions Judge, Greater Mumbai, on 30th June, 2006 in Sessions Case No.362/2003 as regards conviction of the appellants is set aside. 3 The appellants are acquitted of the offences punishable u/ss. 392 and 452 of IPC. They shall be released from the prison forthwith, if not required in any other case. Fine, if paid, be returned to them immediately. The property be disposed of in accordance with the order passed by the trial court. 4 The appeals stand disposed of. (M.L. TAHALIYANI, J)