1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1259 OF 2006 Usmanali Mananali ) Aged about 24 years, Indian ) Inhabitant, residing at ) 4, Sanjay Nagar, RPP Chawl, ) Besides Maru Company, ) Mumbra, Dist. Thane ) ...... Appellant. (Orig. accused No.3) V/s The State of Maharashtra ) Through Senior Inspector of ) Police, Bandra Police Station ) Mumbai – 400 050. ) ..... Respondent. (Orig. Complainant) ----- Mr. A.Q. Ansari with Mr. S.R. More for the appellant. Mr. P.A. Pol, APP for the State. ---- CORAM: V.M. KANADE, J. DATE : 25th November, 2008 ORAL JUDGMENT: 1. Heard the learned Counsel appearing on behalf of the appellant and the learned APP for the State. 2. Appellant is challenging the judgment and order passed by the Trial Court whereby the appellant who is the original accused No.3 is convicted for an offence punishable under section 392 read with section 120-B of the Indian Penal 2 Code and he is sentenced to suffer rigorous imprisonment for four years and to pay fine of Rs 100/- and in default in payment of fine to further suffer rigorous imprisonment for one month. He is further convicted for an offence punishable under section 397 read with section 120-B of the Indian Penal Code and sentenced to suffer rigorous imprisonment for seven years and to pay fine of Rs 200/- and in default in payment of fine to further suffer rigorous imprisonment for two months. He is also convicted for the offence punishable under section 427 read with section 120-B of the Indian Penal Code and sentenced to suffer rigorous imprisonment for one year without any fine. He is also convicted under section 25(1B)(a) of Arms Act, 1959 and sentenced to suffer simple imprisonment for one year and to pay fine of Rs 50/- and in default in payment of fine to further suffer simple imprisonment for one month. He is also convicted under section 135(i) of the Bombay Police Act, 1951 and sentenced to suffer simple imprisonment for three months and to pay fine of Rs 50/- and in default in payment of fine to suffer further simple imprisonment for 15 days. The sentence is directed to run concurrently. 3 3. Prosecution case is that the complainant Hormaz Irani – P.W. 1 is the owner of wine shop situated at Hormaz Award, 240, Linking Road, Bandra (West), Mumbai – 400 050. There were three employees in the said shop viz. Bhaskar Parab – P. W. 2, Madhukar Bhurte – P.W. 3 and one Lems Kidakkuda. Prosecution case is that on 13/2/2003, the complainant – P.W. 1 opened the wine shop at about 10.00 a.m. and carried on business till about 9.00 p.m.. At about 8.55 p.m., four unknown persons armed with weapons like revolver and chopper entered the wine shop and, at the point of gun, took away hard cash from the cash-counter which was to the tune of about Rs 18,000/-. The complaint was registered vide C.R No.58 of 2003 at Bandra Police Station. Another complaint was registered at Tardeo Police Station and, pursuant to the said complaint in CR No.47 of 2003 for similar offences, three persons were arrested and these persons were thereafter transferred to Bandra pursuant to the transfer warrant from the court. One of the accused was found to be a juvenile in the said case. Thereafter, one more accused viz. original accused No.3 - the appellant herein was arrested and he was also transferred on transfer warrant to Bandra. The charge-sheet was filed. Trial Court has convicted 4 the appellant for the aforesaid offence. Original accused No.1 did not prefer any appeal. Original accused No.2 died in jail. Appellant herein who is original accused No.3 has undergone about two years and three months of total sentence. 4. Counsel appearing on behalf of the appellant submitted that the prosecution has not been in a position to establish that the appellant is a person who was involved in the said incident. He submitted that no test identification parade was held. He further submitted that P.W. 1 , P.W. 2 and P.W 3 had identified the appellant in the Court. He has invited my attention to the evidence of these three eye witnesses and submitted that in the absence of proper identification by the prosecution witnesses, the appellant is entitled to get benefit of doubt. 5. In the present case, it is an admitted position that P.W. 1, 2 and 3 have identified the appellant for the first time in Court. P.W. 1 has admitted that he had visited the court premises on 7 to 8 occasions before he had identified the appellant in court. He submitted that P.W. 1 had an ample opportunity of seeing the appellant in court and, therefore, no 5 reliance could be placed on his testimony. He also invited my attention to the statement of P.W. 2 and P.W. 3 who identified the appellant in court. He submitted that it was essential for the prosecution to have held the proper identification parade. He submitted that P.W. 1 was not asked to identify any of the accused in the test identification parade. 6. I have gone through the evidence of P.W. 1, P.W. 2 and P.W. 3. In my view, no reliance can be placed on their identification of the appellant in court. Further, so far as identification of the appellant by P.W. 2 and 3 are concerned, from the deposition of P.W. 4 - Vikram M. Maity who was the Special Executive Magistrate, it is apparent that the mandatory conditions which are laid down in criminal manual for holding the identification parade have not been followed by him. All the accused were asked to stand at the place of their choice in the row of dummies and the test identification parade of these three accused was held at the same time. He has stated that P.W. 2 and P.W.3 have identified the present appellant in the identification parade. Surprisingly, in the examination-in-chief of both these witnesses, they have not stated that they had 6 attended the test identification parade. No reference has been made by these two witnesses about the identification of this appellant in the test identification parade. 7. Therefore, there is a serious lacuna in the prosecution case inasmuch as the appellant was not identified by P.W. 2 and P.W. 3. P.W. 1 who is the owner of the wine shop was not brought before the Special Executive Magistrate for the purpose of identifying the accused in the test identification parade. Therefore, commission of crime by the present appellant has not been established by the prosecution beyond the reasonable doubt. Under these circumstances, appellant is entitled to get the benefit of doubt. The judgment and order of the trial court is, therefore, liable to be set aside on this count. 8. Accordingly, the following order is passed:- O R D E R Appeal is allowed. The judgment and order of the Trial Court is set aside. Appellant is acquitted of the offence with which he is charged. His bail bonds stand cancelled. (V.M. KANADE, J.) 7