24. cr appa 1166-10.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1166 OF 2010 IN CRIMINAL APPEAL NO. 1001 OF 2004 Mahendra Harishchandra Gaikwad .. Applicant Vs The State of Maharashtra .. Respondent Mr. R.D. Suryawanshi for the Applicant Ms. U.V. Kejariwal, APP for the State CORAM : SMT. V.K. TAHILRAMANI, J DATE : 12th OCTOBER, 2010. P.C.: 1. Heard learned advocate for the applicant-original accused no. 1 and learned APP for the State. 2. By judgment and order dated 5th August 2004 passed by learned Additional Sessions Judge in Sessions Case No. 177 of 1997, the applicant has been convicted along other accused for the offence under Sections 143, 147, 365 read with 34 of IPC. The applicant has preferred Cri Appeal No. 1001 of 2004 against the said order which is admitted and it is pending before this Court. The applicant has been granted bail in the said appeal i.e the sentence of imprisonment has been suspended. Now, the applicant is praying for suspension of 1 24. cr appa 1166-10.doc conviction on the ground that he has to contest for election of Kalyan-Dombivli Municipal Corporation. 3. Learned advocate for the applicant submitted that in deserving cases, conviction can be suspended. To support this submission, he has placed reliance on a decision of the Supreme Court in the case of Ravikant S. Patil Vs Sarvabhouma S. Bagali reported in (2007) 1 SCC 673. I have perused the said decision. Para 15 of the said decision reads as under: "It deserves to be clarified that an order granting stay of conviction is not the rule but is an exception to be resorted to in rare cases depending upon the facts of a case...." I have carefully perused the said decision. The issue before the Supreme Court in the said case was whether the appellant therein had incurred disqualification. It was in the light of the issue before the Supreme Court that these observations were made. As the Supreme Court has clearly observed that grant of stay of conviction can be resorted to only in rare cases depending upon the facts of the case, it would be necessary to see the facts of the present case. 4. The prosecution case is that on 28th July 1996 at about 10.30 p.m, two persons came to the house of first informant PW 1 Parvati. They asked about whereabouts of her husband. She stated that her husband was not present in the house. 2 24. cr appa 1166-10.doc Thereafter, those two persons went away and within a short time, those two persons along with some other persons came back to her house. One of these six pesons had asked Parvati to open the door and threatened her that if she did not open the door, they would break open the door. Hence, Parvati opened the door and these persons entered into the house including the applicant. One of them abused her husband and told her husband to accompany them. Then, these persons took away her husband with them. While going one of the accused threatened Parvati at the point of knife that if she shouted for help, she would face dire consequence. They also informed her that her husband would return back that night at about 11.00 pm. Thereafter, Parvati waited for her husband till 11.00 pm. As her husband did not return. She asked her children to accompany her to the police station. However, when she went to the gate of the house, she saw two persons standing outside, hence,she came back inside the house. Those persons did not move from the gate of the house till 04.00 a.m. so she could not approach the police station. At 06.00 a.m., she sent her children to the house of her relation with message that her husband had not returned,hence, she was going to police station. Thereafter, she went to the police station and lodged F.I.R. It is pertinent to note that the incident took place on 28th July 1996 and, PW 1 Parvati had deposed in the court a 3 24. cr appa 1166-10.doc few years later. She has clearly stated that till the date of her deposition in Court, her husband had not returned back. This clearly shows that after the applicant and other accused took away the husband of PW1 Parvati, thereafter her husband did not return back and he was not seen alive by anyone. 5. The applicant is fully involved in this case. PW 1 Parvati has clearly stated that the applicant had entered into her house with other accused and all the accused had taken away her husband after giving threats to her and thereafter, her husband was not seen alive. 6. Learned advocate for the applicant has submitted that complainant PW 1 Parvati has admitted that prior to the incident, she had not seen the applicant. He submitted that in such case, holding of TIP was necessary but no such TIP had been held by the investigating agency. In such case, direct identification by PW 1 and other witnesses in the Court cannot be relied upon and the conviction cannot be based on such identification for the first time in the Court. Even if PW 1 had seen the applicant and other accused for the first time at the time of the incident, however, from her evidence, it is seen that all the accused persons were there in her house for a sufficiently long period, she had 4 24. cr appa 1166-10.doc interaction with the accused persons and in such case, she had sufficient opportunity to observe the applicant and other accused and thus, in my opinion, holding of TIP is not at all necessary. Thus, I find no merit in this submission. 7. In the case of Ronny alias Ronald James Alwares and Ors Vs State of Maharashtra, (1998) 3 Supreme Court Cases 625, it is observed that the statement of the witness made in the court is substantive evidence whereas the evidence of identification in the TIP is not a substantive evidence but it is only corroborative evidence. It falls in the realm of investigation. The purpose of test identification parade is to test the observation, grasp, memory, capacity of a witness to recapitulate what he has seen earlier, the strength or trustworthiness of the evidence of the identification of an accused and to ascertain if it can be used as reliable corroborative evidence of the witness identifying the accused at his trial in court. But if a witness has seen an accused earlier in such circumstances which lend assurance to identification by him in court and if there is no inherent improbability or inconsistency, his statement in court about the identification of accused should be relied upon as any other acceptable but uncorroborated testimony. The identification of the accused by a witness if the witness had an opportunity to interact with the accused or to notice his 5 24. cr appa 1166-10.doc distinctive feature lends assurance to the testimony of this witness in court and absence of corroborative evidence by way of test identification parade would not be material. 8. In the case of Ronny (Supra), the prosecution had relied on the evidence of two witnesses i.e PW29 and PW34. Both these witnesses had directly identified the accused for the first time in court. The evidence of both these witnesses was relied upon by the prosecution to show that the accused persons had come to the bungalow of the deceased on the night of the incident. The evidence of both these witnesses was accepted by both the trial court as well as the High Court that the accused persons were seen entering the bungalow of the deceased on the previous night. The Supreme Court has observed that both the courts below had rightly accepted the identification of the accused by these two witnesses. The accused persons were not known to both PW 29 and PW 34 prior to the date of incident, however, both these witnesses had a talk with the accused when the accused came to the bungalow. Some talk took place between the witnesses and the accused for about 7-8 minutes. Thereafter, the accused persons entered into the bungalow. On the next day, the inmates of the bungalow were found dead. The Supreme Court held that identification of the accused by a witness if he had an opportunity to interact with him or notice his 6 24. cr appa 1166-10.doc distinctive features lends assurance to his testimony in court and that the absence of corroborative evidence by way of TIP would not be material. 9. The Supreme Court has considered the evidentiary value of identification of accused by a witness in the court for the first time in a case where the eye witness did not know the accused earlier and where no TIP had been held. The Supreme Court observed that real credence of such evidence would depend upon the facts and circumstances of each case. It was so observed in the case of Ramanbhai Naranbhai Patel and Others Vs State of Gujarat, (2000)1 SCC 358. In the said case, it was held that in absence of TIP, it cannot be said that the evidence of an eyewitness would become inadmissible or totally useless. 10. In the case of Ramanbhai, two witnesses directly identified the accused in the court but without any previous TIP. The Supreme Court negatived the contention that such identification is of no assistance to the prosecution. The Supreme Court observed that as the witnesses were injured in the incident, they could have easily seen the faces of the persons assaulting them and the appearance and the identity would remain imprinted in the minds of witnesses especially when there were assaulted in broad day light. 7 24. cr appa 1166-10.doc 11. In Confirmation Case No. 4 of 2009, by judgment and order dated 7th September 2010, a division Bench of this Court ( Coram : Smt. Ranjana Desai and Smt. V.K. Tahilramnai, JJ ) observed that looking to the special circumstance that the deceased had requested the witness to exchange his seat with her in the bus and the fact that this witness had conversation with Draupadi (deceased) as well as the accused, it can be said that he had sufficient opportunity to observe these two persons. It is not as if he had a fleeting glimpse for a few seconds or even a few minutes of the accused and the deceased. Thus, in the facts and circumstances of the present case, not holding of a TIP would not be fatal to the prosecution. 12. The learned advocate for the applicant thereafter submitted that there was no motive to commit the offence. No doubt, the motive has not come on record. However, there is evidence of an eye witness in the present case i.e PW 1 Parvati. In a case, where an eye witness has directly spoken about the involvement of the accused, in such case motive would pale into insignificance and even if the motive has not come on record, it would cause no dent in the prosecution case. 13. In the case of Mahadev Rangnath Barde Vs State of 8 24. cr appa 1166-10.doc Maharashtra reported in CDJ 2002 BHC 028 also, the applicant had sought suspension of conviction in order to enable him to contest the election of Panchayat Samiti. The said application came to be rejected. While rejecting the said application, it was observed as under: "9. Such a conduct of a person holding the post of Sarpanch does not entitle him to the relief of suspension of conviction. The facts of the case further shows that the road through the complainants field was granted by the Tehsildar therefore there was no reason for the accused to go to the extent of forming an unlawful assembly and causing injuries to number of persons. This accused himself has assaulted all the victims. I do not find this to be a fit case to grant relief prayed for. Hence, prayer for suspension of conviction is rejected. Criminal application disposed of." 14. In the present case, the applicant is involved in a very serious case. The evidence of Parvati shows that the applicant along with other accused came in the night to the house of PW 1 Parvati and they took away her husband with them. Moreover, after the husband of PW 1 was taken away by the applicant and other accused, he was not seen alive. Thus, in fact, the applicant along with other accused has 9 24. cr appa 1166-10.doc abducted the husband of Parvati, therefore, it prima facie appears that he is responsible not only for the disappearance of the husband of Parvati but it appears that the husband of Parvati has been done away with by the applicant and other accused. 15. From the evidence of PW1 Parvati, the involvement of the applicant in a very serious offence is clearly made out. In my view, such conduct on the part of the applicant does not entitle him to the relief of suspension of conviction. Hence, the application is rejected. [SMT. V.K. TAHILRAMANI, J.] 10 24. cr appa 1166-10.doc 11