((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.287 OF 2006 Abdul Rehman Mohd. Rafiq Ansari Appellant versus The State of Maharashtra Respondent WITH CRIMINAL APPEAL NO.381 OF 2006 Liyaqat Allauddin Sheikh Appellant versus State of Maharashtra Respondent Mr.M.K.Kocharekar, Advocate for appellants in Criminal Appeal No.381 of 2006 and advocate appointed to espouse the cause of the appellant in Criminal Appeal No.287 of 2006. Mr.J.P.Yagnik, APP for the State. CORAM : A.S.OKA, J. DATE : 12th March 2009 JUDGEMENT : 1. I have heard the submissions of the learned counsel appearing for the appellant in Criminal Appeal No.381 of 2006. As the advocate on record for the appellant in the companion appeal no.287 of 2006 did not remain present, this Court requested the advocate for the appellant in Criminal Appeal no.381 of 2006 to address the Court in support of the said ((-2-)) appeal. 2. The appellant in Criminal Appeal No.287 of 2006 is accused no.1 and the appellant in Criminal Appeal No.381 of 2006 is accused no.2. 3. Briefly stated, the case of the prosecution is that one Sunil Narkar lodged a complaint with L.T.Marg Police Station, Mumbai. He was serving as a Manager in Indian International Company having its office at Dhobi Talao, Mumbai. According to the prosecution case, one Randip Singh is the owner of the said Indian International Company. He stated that on 27th April 2002 at 20.00 hours he was counting the cash. A sum of Rs.24,000/- collected on that day was kept in the drawer. Vinod Khandekar and Pankaj Karnik were present and they were busy in attending the customers. At 20.40 hours four persons entered the shop. One person stood near him who possessed a chopper and threatened that if the said complainant did not abide by his directions he would be murdered. The said person searched the drawer and took the cash of Rs.24,000/- which was kept in the drawer of the table. The said amount was handed over to the person who was standing ((-3-)) nearby. The said standing person pointed a chopper. He not only took the cash but also snatched gold chain weighing 5 grams from the complainant. 4. The case of the prosecution is that the third person possessing chopper was standing near the door of the shop. It is the case of the prosecution that fourth person possessed revolver and he also stood near the door of the shop. The case of the prosecution is that four persons committed offence of robbery of Rs.24,000/- and two gold chains on the person of complainant and the witness Vinod were snatched. 5. Charge sheet was filed and the appellants in these appeals faced trial. The accused nos.1 and 2 (appellants) were convicted for the offence punishable under section 392 read with section 34 of Indian Penal Code and sentenced to suffer rigorous imprisonment for ten years each and to pay fine of Rs.5,000/-. The accused nos.1 and 2 (appellants) were also convicted for the offence punishable under section 397 read with section 34 of the Indian Penal Code. The accused nos.1 and 2 were ((-4-)) convicted for the offence punishable under section 37(1)(a) punishable under section 135 of the Bombay Police Act and were sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs.1,000/-. Accused no.3 was acquitted of all the offences alleged against him. 6. It will be necessary to refer to the case made out by the prosecution witnesses. PW-1 is the complainant Mr.Sunil Narkar. He stated that he was working in Indian International Company as a Manager and the said company was doing the business of wine. The shop of the company is situated in front of Saint Xavier High School and one Randip Singh is the owner of the said shop. He stated that alongwith him Pankaj Karnik, Babulal Prajapati, Vinod Khandekar and Ganesh Vinalkar and one more person were employed in the said shop. He stated that the shop used to be started at 10.00 a.m. and used to close at 8.30 p.m. on the same day. He stated that all employees of the shop used to attend the said shop. 7. Thereafter he proceeded to describe the incident. Paragraph no.2 of his evidence reads ((-5-)) thus:- "2. The incident had taken place on 27/04/02 at 8.00 p.m.. At that time I was counting cash. On that day Rs.24 thousands was collected. I cannot say the denomination of the said cash amount. The said cash was kept in the drawer. At that time myself, Pankaj Karnik, Babulal Prajapati and Vinod Khandekar were present. They were doing their work. On the date of incident suddenly four persons entered in our shop. One person stand up on the door. Three persons entered in the shop. One persons reached near me and pointed out one chopper to me. He also told that if I make a shout he will kill me. He started the search of the drawer of the table. The said person taken the said cash of Rs.24,000 and handed over to a person who was standing near the door who possessed a bag. The person who possessed a chopper also snatched my golden chain of weighting 5 grams. The another persons also snatched the golden chain of Vinod Khandekar. A person who was standing near the door possessed a revolver and gave threat to us that if we shouted he will kill us. The said persons later on proceeded towards Dobi Talao." He stated that he disclosed the description of the said persons who had come to the shop to the Police authorities. He stated that he was unable to explain the entire description of the persons who possessed the choppers. He stated that he had disclosed the description of the property in the complaint. He described the manner in which identification parade was conducted. He stated that in the first parade he identified the accused nos.1 and 2. He ((-6-)) stated that the accused Abdul Ansari (accused no.1) was present before the Court was the same person who pointed out the chopper to him and told that if he shouted he would be killed. He stated that the said accused had taken the amount of Rs.24,000/- and snatched his golden chain. he stated that the accused no.2 Liyaqat before the Court was standing near the door and he gave a threat. He stated that at the time of second identification parade he did not identify anyone. He identified the choppers before the Court. The said witness was extensively cross examined by the advocate for the accused nos.1 and 2. In the cross examination he stated that he never disclosed to the Police authority that cash was kept in the drawer. He stated that he never disclosed to the Police authority that the persons who demanded a sum of Rs.24,000/- later on handed over the said amount to the person who was standing near the door possessing the bag. He stated that he did say before the Police that the person who possessed the revolver was standing near the door gave a threat. He stated that only one person gave threat. He admitted that he was unable to give particular description of the said persons. ((-7-)) 8. He admitted that when the said persons entered along with weapons at that time he was frightened. He stated that when he visited the Police Station on two occasions after the incident, the Police had shown some photographs. He denied the correctness of the suggestion that he identified the accused on the strength of the photographs. He stated that fourteen persons acted as dummies and seven persons were having bared. He admitted that the dummies were having different facing and different style of hair. He stated that the Panchas were not present in the parade room. He stated that he waited in the parade room only for one minute and after the test identification parade his statement was not recorded. 9. In response to the question asked in the cross examination by the advocate for the accused no.3 he stated that at the time of lodging complaint he had not narrated the description of the ornaments. 10. PW-2 is Vinod Khandekar. He also described the incident which took place on 27th ((-8-)) April 2002. His version of the incident is thus :- "... ... We started our work. At 8.30 pm when we were closing our shop at that time four persons entered in the shop. They behaved like a customer. Two persons immediately entered in our shop. One person pointed out the chopper to Narkar who was handling the cash. They demanded money and gave threat that otherwise they will kill him. One person snatched the cash from Narkar. The said person handed over the said cash to another person. The said person also snatched golden chain from the Narkar and kept in his own pocket. The said person proceeded towards me. The said person also snatched my golden chain. The said person also demanded my golden ring. I refused to give it. The said person also gave abuses to me. The said two persons left the shop. The other two persons who possessed revolver were supervising near the counter out side the shop. The said persons also gave threat to customers. The said persons also pointed out the revolver and later on proceeded towards Dhobi Talao. Later on we informed to police." He stated that the Police had called him for test identification parade and he attended Arthur Road Jail for the parade. He stated that he identified two accused in the test identification parade and the said two accused were before the Court. He stated that accused no.1 pointed the chopper and has snatched the golden chain of PW-1 Sunil Narkar. He stated that another accused possessed a bag and the said amount and the articles were kept in bag ((-9-)) which was possessed by him. The witness identified the accused no.2 Liyaqat before the Court. As far as test identification parade is concerned, the witness was cross examined. He denied the correctness of the suggestion that another person caught hold of him and snatched the golden chain. 11. It will be necessary to refer to the evidence of PW-3 Kumar Bhausaheb Aaglave. He was Station Officer in-charge of L.T.Marg Police Station at Mumbai. It will be necessary to refer to the relevant part of his cross examination :- "I do not remember whether the complainant disclosed that fifth employee was standing out side the shop or not. Complainant disclosed before me that cash amount was in the drawer. It is correct to say that the complainant disclosed before me that four persons suddenly entered in the shop. I cannot remember why this fact is not mentioned in the said statement. The complainant never disclosed before me that 3 persons standing out side the shop. I cannot say why this fact is specifically mentioned in the statement. The complainant disclosed before me that first person taken search of the drawer and taken the Rs.24 thousand and first person handed over the said cash to another person. I cannot say why this fact is not mentioned in the statement. The complainant disclosed before me that one person who was standing near the door having revolver and he gave threat to kill all of us. I cannot give any reason why this ((-10-)) fact is not mentioned in the statement. It is correct to say that at the time of recording the statement complainant never disclosed the description of the property. It is not correct to say that I have not lodged the FIR as per the say of complainant. I have not made inquiry with the panchas whether they previously acted as a panch or not. It is not correct to say that I have not drawn any panchanama. It is not correct to say that I drawn the panchanama in the police station. It is not correct to say that I am deposing falsely as per direction of my superior." 12. PW-4 Maduhkar Patil who is Police Head Constable attached to D.B.Marg Police Station. He stated that he found one revolver with accused no.1 and there were live cartridges in the said revolver. He stated that he found two aluminium knives and one rampuri knife with accused no.1. He stated that he found one revolver with accused no.2 having five cartridges and two currency notes of Rs.50/- denomination. He thereafter proceeded to state as to how the same were seized. The evidence of PW-5 Kumar Bhimrao Chougale may not be relevant. PW-6 Sultan Hasmukh Shah was declared hostile. 13. PW-7 is Pandurang Ramchandra Patil was attached to L.T.Marg Police Station at the relevant time as A.P.I.. He stated that he ((-11-)) arrested the accused. He identified the accused no.1 before the Court. In the cross examination he admitted that he had not drawn separate arrest panchanama. 14. Evidence of PW-9 Manoj Shankar Amar, Special Executive Magistrate is important as he conducted the test identification parade on 20th October 2000. He stated that at that time five witnesses identified two accused in his presence. He identified accused nos.1 and 2 who were present before the Court. He stated that he has taken necessary precautions and he had personally drawn the panchanama. 15. In the cross examination he stated that he was not aware whether the first panch was already cited as witness in the case. He stated that he had taken necessary entries in the register as per the directions of this Court. In paragraph no.2 the witness has stated as under:- "... ... I did asked to witness whether accused previously pointed out to them or not. It is correct to say that the said fact is not mentioned in my panchanama. I also asked to accd. whether they previously shown to witnesses or not. It is correct to say that he said fact is not mentioned in the panchanama. I never ((-12-)) disclosed to accd. that if they want then their adv. also attend the ID parade. It is correct to say that I have not specifically pointed out the description of the accused in the panchanama. It is correct to say that accd. 1 and 2 are not similar and they are having different personalities. It is correct to say that I have not conducted ID parade twicely though there are two accd. of different personalities. It is correct to say that at the time of ID parade there was no any veil on the face of the accused." In response to the only question asked in the cross examination by the accused no.3, he stated that he has not obtained signature of the jailor on the panchanama. 16. PW-11 Arun V. Wabale who was Police Inspector on night duty at L.T.Mart Police Station at the relevant time. PW-11 has been cross examined very briefly by the accused. 17. The learned counsel appearing for the appellants has taken me through the notes of evidence and other material documents on record. He submitted that there was gross delay of two months in holding the test identification parade. He submitted that it is unsafe to punish the accused on the basis of their identification for the first time before the Court. He invited my attention to the ((-13-)) evidence of the eye witnesses and submitted that their evidence is inconsistent and full of contradictions. He submitted that this is a case where the test identification parade ought not to have been delayed. He submitted that serious doubt is created about the truthfulness of the prosecution case. The learned APP supported the impugned judgement and order. 18. I have given careful consideration to the submissions made by the learned counsel for the appellant in both the appeals. I have perused the notes of evidence and the record. It must be stated here that the entire case revolves around the identification in the test identification parade of the accused by the material witnesses. I have already referred to the evidence of PW-1 Sunil Narkar in brief. As pointed out earlier, he admitted that he was unable to give exact description of the persons possessing the chopper. He admitted that he was unable to state the description of other persons. He also deposed regarding the conduct of the test identification parade. He stated that in the test identification parade, he identified two persons (appellants in these two appeals). He identified the accused no.1 as ((-14-)) the person who pointed the chopper to him and threatened him to kill. He stated that the said accused had taken an amount of Rs.24,000/- and snatched his golden chain. He stated that the accused no.2 possessed a revolver at that time and he was standing near the door. Even according to the said witness, the second test identification parade was carried out at the same place and at that time he did not identify anyone. He identified the revolver possessed by accused no.2 and the chopper possessed by accused no.1. 19. In the cross examination he stated that he did not tell before the Police that a person who possessed revolver and who was standing near the door gave a threat. He stated that only one person gave the threat. He admitted the correctness of the suggestion that he deposed that he was unable to give particular description of the said persons. He further stated that when he visited the Police Station on two occasions after the incident, Police authorities have shown some photographs. He denied the correctness of the suggestion that he identified the accused on the strength of the photographs. As far as dummies are ((-15-)) concerned, he stated that fourteen persons acted as dummies and the said dummies were having different facing and different hair style. He stated that the panchas were not present in the parade room. He stated that he waited in the parade room only for one minute and after identification parade his statement was not recorded. 20. Before going to the other witnesses, the evidence of the prosecution regarding holding of test identification parade will have to be carefully examined. Therefore, it will be necessary to refer to the evidence of Special Executive Officer who conducted the test identification parade. Firstly, it will have to be considered whether delay in holding the test identification parade is fatal to the prosecution case. The submission of the learned counsel for the appellants was that the there is a gross delay in holding the test identification parade. Holding of test identification parade is a part of the process of investigation. Holding of test identification parade is relevant in a case where the accused are not known to the eye witnesses or to the victim of the crime. Apart ((-16-)) from the role of test identification parade at the investigation stage, if the test identification parade is validly and lawfully held, it corroborates the identification of the accused made by the eye witnesses in the Court. 21. As stated earlier, the test identification parade in the present case was held by PW-9 on 24th October 2002. Thus, there is time gap between holding of the test identification parade and the date of incident i.e. 27th April 2002. PW-9 stated that at the time of holding the test identification parade five witnesses identified two accused (accused nos.1 and 2). He stated that he had taken all the precautions while drawing the panchanama. 22. In the cross examination a suggestion was put to him that the panch witness no.1 at the time of holding test identification parade was already cited as a panch witness in the present case. He pleaded ignorance about the correctness of the said suggestion. At this stage it will be necessary to refer to the panchanama recorded by the said witness. The panchanama is at Exhibit-73. The panchanama records that PW-9 Manoj requested API ((-17-)) Ramchandra to summon the panch witnesses who could assist him in holding the parade. Accordingly, the said API produced three persons. The P.W.No.9 selected two witnesses. One of them is Sultan Hasnoor Shah. PW-6 in this case is Sultan Hasnu Shah who is allegedly a panch witness to the recovery panchanama at Exhibit-65. Against the name of the witness mentioned in Exhibit-73 the address of the witness Sultan Shah is given as Pathakwadi, Dava Bazar, Mumbai-2. On the said panchanama the age of the said witness is stated as 20 years and his occupation is disclosed as service. On panchanama at Exhibit-65 the address of the said witness is shown as Opp.J.J.Hospital, Mumbai-2. His occupation is shown as a hawker. 23. The guidelines for conducting the test identification parade and the procedure for holding the test identification parade has been laid down in the Criminal Manual. Clause (iii) of the procedure provides that two independent respectable persons not being the persons connected with the Police should be first called up. The Police themselves will have to normally arrange for the witnesses but the ((-18-)) Executive Magistrate will question them and satisfy himself that they are independent and fairly intelligent persons. In order that they may follow the proceedings intelligently, the Executive Magistrate/Honorary Magistrate should acquaint them briefly with the facts of the case and as to who is sought to be identified and who are to come for identification. The panchanama at Exhibit-73 admittedly does not record that the Executive Magistrate questioned the panch witnesses and satisfied himself that the panch witnesses brought by the police were independent witnesses. In the earlier part of the judgement I have already referred to the questions asked to PW-9 Manoj in the cross examination by giving a specific suggestion that out of the panch witnesses one panch witness was already cited as witness in the present case. It must be noted here that the date of panchanama at Exhibit-65 is 18th October 2002 and as pointed out earlier, the test identification parade was held on 24th October 2002. Though in the cross examination PW-9 Manoj stated that he had made an inquiry with the panchas about their previous history, he has not mentioned this fact in the panchanama. As pointed out earlier, the name ((-19-)) of PW-6 is reflected from Exhibit-65 and his deposition is Sultan Hasmukh Shah and the name of the first witness on Exhibit-73 is Sultan Hasnu Shah. In both the panchanamas the respective ages of the said witnesses are shown as twenty years. There appears to be a striking similarity between the two names. The fact remains that PW-9 has not recorded in the panchanama that he made an enquiry with the panch witnesses to ascertain whether they were independent. Clause (iii) of the procedure laid down in the Criminal Manual specifically requires that two independent respectable persons must be the persons who are not connected with the Police. 24. In his examination-in-chief, PW-9 did not depose that he questioned eye witnesses on the aspect whether they had an opportunity to see the accused at any time subsequent to the offence or after their arrest. On this aspect it will be necessary to refer to clause (xi) of the procedure, the relevant part of which reads thus :- "Then one of the respectable persons should be asked to fetch the first identifying witness from the room in which he may be sitting. When the ((-20-)) witness arrives, the Executive Magistrate/Honorary Magistrate should question him and ascertain from him whether he had an opportunity to see the culprit at any time subsequent to the offence or after the arrest. He may either record the statement separately or make a reference to that statement in his memorandum. ... ..." Thus, the Magistrate is duty bound to question the witness and ascertain from him whether the witness had an opportunity to see the culprit. Further requirement is that such statement should be either recorded separately or a reference has to be made