.sat 1 crim.appeal no. 181-2008 and 189-2008 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 181 OF 2008 1. Ramesh Anjayya Pare, ) Aged- 29 years, Sai Baba Society, ) Gaondevi Nagar, Kamal Road, ) Andheri (W), Mumbai- 400 068. ) 2. Ravikumar Anjayya Magipalli ) Aged about 29 years, ) C-1 04 Chaitanya Apartment, ) Damodar Nagar, Viva College Road, ) Virar (W) ) (In Nashik Jail) ) ...Appellants (Org.Accused Nos.1 and 2) vs. The State of Maharashtra (Kasturba Marg Police Station) ...Respondent WITH CRIMINAL APPEAL NO. 189 OF 2008 Abdul Vajid Abdul Basit Sayyed ) Aged 32 years, r/o. Sai Baba Society, R/10, ) Gao Donger, Kamal Road, Andheri (W), ) Mumbai-58 ) (At present in Arthur Road Jail) )...Appellant (Orig.Accused No.3.) vs. .sat 2 crim.appeal no. 181-2008 and 189-2008 The State of Maharashtra ) (At the instance of Kasturba Marg ) Police Station in CR No.243 of 1990 )...Respondent Mrs.Indrayani Koparkar, Advocate appointed for all the Appellants. Mr.P.S. Hingorani, APP for the State. CORAM : M.L. TAHALIYANI, J. DATED : DECEMBER 2, 2011 ORAL JUDGMENT : - 1 The appellants in both the appeals have been convicted for the offences punishable u/ss.120B, 387 r/w. 34 of IPC and 307 r/w. 34 of IPC. In addition to this, the appellant no.2 in Appeal No.181/2008 is also convicted of the offence punishable u/s. 25(1-B)(a) r/w. 3 of the Arms Act. 2 Feeling aggrieved by the said judgment and order passed in Sessions Case No.748/1999 of Borivali Sessions Division, Mumbai, the appellants have moved this Court for .sat 3 crim.appeal no. 181-2008 and 189-2008 challenging the said judgment and order. 3 At the outset it may be noted here that the appellants in Appeal No.181/2008 are in jail and the appellant in Appeal No.189/2008 is on bail. The Advocates on record for the appellants in both the appeals have not appeared. Therefore, learned Advocate Mrs.Indrayani Koparkar has been appointed as amicus curiae in both the appeals. The appellant nos.1 and 2 in Appeal No.181/2008 and the appellant in Appeal No. 189/2008 will be referred to as 'appellant nos.1, 2 and 3’ respectively, hereinafter. 4 The prosecution had examined in all eleven witnesses to support the charges against the appellants. The learned trial court has believed the evidence and has passed the abovestated order 5 The prosecution case in brief before the trial court was that the two incidents had occurred one each on 10th .sat 4 crim.appeal no. 181-2008 and 189-2008 September, 1998 and 9th October, 1998. An FIR was registered u/ss. 307 and 387 r/w. 34 of IPC and Section 25 r/w 3 of the Arms Act against the unknown persons on the complaint made by the complainant Manjibhai Govindbhai Patel (PW 1). The complainant stays at Sadguru, Road No.8, Daulat Nagar, Borivali (East), Mumbai-66. He was about 68 years old on the date of incident. The incident had occurred on 9th October, 1998 when he reached near his building in Maruti Esteem car. It was alleged that three persons had fired from pistols on the car of the complainant. The complainant anyhow managed to save himself. It appears that the police came to know about the incident and reached the spot without any intimation from the complainant. The FIR of the complainant was recorded at Kasturba Marg Police Station. Panchnama of the spot was drawn. During the course of panchnama, one deformed bullet was seized from the spot. The car which was damaged due the firing was also seized and was later on released to the complainant. .sat 5 crim.appeal no. 181-2008 and 189-2008 6 It may be stated here that there was one more incident on 10th September, 1998. It is alleged that two persons had visited the office of the complainant and gave him a chit containing the names and phone numbers of one Abu Salem and other one Shafi. The said two persons wanted the complainant to talk to the said persons named in the chit. The complainant himself and some of the witnesses had seen the persons who had visited the office. 7 While investigation was in progress, the Investigating Officer learnt that the appellants were in police custody in the cases pertaining to other police stations. They were taken into custody in this case by Kasturba Marg Police Station on 16th February, 1999. During the course of investigation, statements of witnesses were recorded and identification parade was held. During the course of identification parade, the assailants had been identified by the complainant and other witnesses. It is not the case of prosecution that the appellants had been identified by all the .sat 6 crim.appeal no. 181-2008 and 189-2008 witnesses. It is the case of prosecution that all the appellants had been identified by some or other witnesses. As such identity of the assailants was determined during the parade. After completion of investigation, chargesheet was submitted. 7 When the case came up for hearing before the learned trial Judge, charge for the abovestated offences was framed and was explained to the accused. The accused had pleaded not guilty to the said charge and they had claimed to be tried. 8 As already stated, the prosecution had examined in all eleven witnesses in support of its case. The PW 1, who is the complainant, has narrated the incident dated 9th October, 1998. He has stated that there was firing on his car. The assailants were about 15 feet away from his car at the time of firing. He however immediately drove away the car to road no.10 and went to the residence of his relative Mr.Shyamjibhai Patel. Within 5 to 10 minutes, police reached there and they drew .sat 7 crim.appeal no. 181-2008 and 189-2008 panchnama of the spot. This witness has also narrated incident dated 10th September, 1998 which took place in his office situated at the construction site. Around 2.15 p.m., two persons visited his office. One of them was holding a revolver covered with a cloth piece. Other one was holding a paper chit. The chit was given to the complainant. There were two names on the chit i.e. Abu Salem, and Shafi. The complainant was directed to contact those persons on telephone numbers mentioned on the chit. During the course of recording of evidence, this witness had identified his signature on the FIR Exhibit 13. He has stated that he had identified the accused nos.2 and 3 i.e. appellant no.2 in Appeal No.181/2008 and appellant in Appeal No.189/2008. 9 PW 4 is the panch witness in whose presence bullet was recovered and seized under the panchnama Exhibit 21. This witness had also heard noise of firing. PW 5 is the daughter-in- law of the complainant. She has stated about phone tapping of the calls received from some unknown persons. Evidence of this witness is not being discussed as the police during the .sat 8 crim.appeal no. 181-2008 and 189-2008 course of investigation have not collected any evidence regarding the identification of the caller or the calling numbers. As such, the evidence of this lady was of no use for the purpose of adjudication of the charges against the appellants. 10 PW 7 Ulhas Pol is a milk vendor. He had also seen the incident of firing. He had occasion to see the assailants. He had identified the appellant nos.1, 2 and 3 during the course of identification parade. 11 PW 9 is the rickshaw driver who claims to be an eye witness to the incident. It is stated by this witness that his rickshaw was hired by three persons from Rai Dongri area. They got down at Daulat Nagar and started firing on the car. This witness got scared due to firing. It is further stated by this witness that many people had gathered on the spot due to firing. The police had also reached the spot. This witness has identified appellant nos.1 and 2 in the identification parade. It is stated by this witness that he had seen these two persons and they were .sat 9 crim.appeal no. 181-2008 and 189-2008 amongst the three persons seen by him firing on the car. 12 PW 2 is the partner of PW 1. He was in the office of PW 1 when the two persons had visited the office of PW no. 1. This witness has stated that two persons had visited the office of PW 1 and one of them had given a chit to PW no.1. He could not see the said two persons minutely because he was frightened. 13 PW 3 was also present in the office of PW no.1 when the two persons had visited the office of PW no.1. One of the said two persons was holding a pistol. Another one had given a chit to PW no.1. This witness was however not able to identify the accused during the course of trial. 14 PW 6 was also present in the office of PW 1 when the said two persons had visited his office. This witness had identified appellant nos.2 and 3 to be the same persons who had visited the office of PW 1. According to this witness, one of the .sat 10 crim.appeal no. 181-2008 and 189-2008 persons who had arrived in the office of PW no.1 had given a chit to PW no.1 and had directed him to call the telephone numbers written on the chit. 15 PW 10 is the Investigating Officer and PW 11 is the police officer who had granted sanction for prosecution of the accused for the offence under the Arms Act. 16 PW 8 is the Special Executive Officer who had conducted the identification parade. The evidence of this witness is to be read along with the evidence of the witnesses who had identified the appellants in the Court. According to this witness, PW 1 had identified the appellant no.1 and 2 whereas PW 1 has stated in his evidence that he had identified the appellant no.2 and 3 to be the same persons. It was argued on behalf of the prosecution that the two persons who had visited the office of the PW no.1 were amongst the three persons who had opened fire on the car of the PW 1. This is not specifically stated by PW no.1. PW 1 has nowhere stated that the persons .sat 11 crim.appeal no. 181-2008 and 189-2008 who had visited his office were the same persons. On the contrary, the evidence of PW no.1 gives an impression that the two persons who had visited his office on 10th September, 1998 were not the same persons. As such the evidence of PW no.1 with regard to identification of the appellants cannot be believed. The second witness who has identified the appellants is the Rickshaw driver (PW 9) Tambiraj. According to PW 8 (S.E.O.), Tambiraj had identified appellant nos.1, 2 and 3.. PW 9 Tambiraj however has stated in his evidence that he had identified the appellant nos.1 and 2 to be the same persons who were amongst the three persons who had opened fire on the car. However this witness appears to be a planted witness. The evidence of this witness even without touching the cross- examination does not appear to be acceptable. This witness has stated that he had chased the appellants because they had not paid his fare. It does not appeal to the reason that the person who was extremely frightened and had moved away from the place after the incident of firing would suddenly start running behind the armed accused to recover his fare. What further does .sat 12 crim.appeal no. 181-2008 and 189-2008 not appeal to the reason is that why should he run behind the appellants when the police had already reached the spot. I have, therefore, come to the conclusion that this witness is a planted witness. PW 8 has further stated that the witness Ulhas had identified appellant nos.1 and 2. Ulhas had been examined as PW 7. This witness however in his evidence has stated that he had identified the appellant nos.1 and 3 in the identification parade. Later on, he improved his version by saying that he had identified appellant no.2 also. As such, the evidence of this witness is also not acceptable as far as identification of the appellants is concerned. 17 The most important witness in this case is PW no. 1. As already stated, it is the prosecution case that the two persons who had visited the office of PW no.1 were amongst the three persons who had opened fire at the car of the PW no. 1. The PW 1 has given contrary evidence. Moreover, PW no.1 has specifically stated that he could see the assailants for a fraction of minute. It is, therefore, obvious that he had no .sat 13 crim.appeal no. 181-2008 and 189-2008 occasion to memorise the faces of the assailants. The evidence of PW 1 in respect of identification of the appellants needs to be rejected. 18 I have gone through the evidence of the witnesses who were allegedly present in the office of PW no.1 on 10th September, 1998. The evidence of these witnesses is also not consistent. Some of the witnesses have stated that one of the visitors was holding revolver. Others are silent on the aspect of this case. As far as phone numbers on the chit are concerned, there is no evidence to show that the Investigating Officer had ever made any attempt to identify as to who were the subscribers of the telephone numbers mentioned on the chit. I have gone through the evidence of the Investigating Officer (PW 10) and I do not find anything in his evidence to show that any attempt was made to identify the subscribers of telephone numbers allegedly mentioned on the chit. 19 As such, there are many loose ends which have not .sat 14 crim.appeal no. 181-2008 and 189-2008 been tied by the police during the course of investigation. In the first place, there is nothing in the evidence of the Investigating Officer as to whether he had made any attempt to search all the three bullets if three bullets were fired by the assailants. Secondly, no investigation was done with regard to the telephone numbers. Thirdly, the evidence in respect of identification of the appellants is highly doubtful. The incident had occurred on 9th October, 1998 when the witness had occasion to see the assailants for a few moments. The appellants were arrested on 16th February, 1999. Identification parade was held on 26th February, 1999. As such, identification parade was held after about five months of the incident. I am aware that delay in holding the identification parade by itself is not fatal to the prosecution case. However, the prosecution was under obligation to demonstrate that the witnesses had sufficient opportunity to see the faces of the assailants and therefore, they could identify them in the identification parade. Apart from this, the evidence given by the witnesses with regard to identification of the appellants in Court and their identification in the parade .sat 15 crim.appeal no. 181-2008 and 189-2008 is so contradictory that it could not be accepted. 20 In my considered view, the learned trial court has fallen into an error in accepting the evidence of the prosecution witnesses. The judgment of the learned trial court needs to be set aside. All the appellants deserve to be acquitted of the offences for which they are convicted. 21 Hence, I pass the following order :- I Criminal Appeals No.181/2008 and 189/2008 are allowed. The judgment and order dated 28th January, 2008 passed by the Additional Sessions Judge, Borivali Division, Mumbai, in Sessions Case No. 748/1999 convicting the appellants is set aside. II The appellants in both the appeals are acquitted of the offences punishable u/ss. 120B, 387 r/w. 34 of IPC and 307 r/w. 34 of IPC. The appellant .sat 16 crim.appeal no. 181-2008 and 189-2008 Ravikumar Anjayya Magipalli in Appeal No.181/2008 is further acquitted of the offence punishable u/s. 25(1-B) (a) r/w. 3 of the Arms Act. The appellants who are in jail shall be released forthwith, if not required in any other case. The bail bonds of the appellants, who are on bail, shall stand cancelled. Fine, if any, paid by the appellants shall be refunded to them. III The property stands disposed of in accordance with the order passed by the learned trial Judge. (M.L. TAHALIYANI, J)