1 AJ-543.93 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE - CRIMINAL CRIMINAL APPEAL NO.543 OF 1993 1. Somnath Mahadu Pawar, Age 32 yrs. 2. Ratan Mahadu Pawar, Age 24, 3. Suresh Mahadu Pawar, Age 35, 4. Bhagwan Rajaram Pawar, Age 25, All labourers. Appellant Nos.1 to 3 are resident of Jakhori, Tal. & Dist. Nashik & Appellant No.4 is resident of Kalwi, Tal. & Dist. Nashik. .... Appellants - Versus - State of Maharashtra .... Respondent Shri Kiran Bapat for the Appellants. Ms P.P. Shinde, Additional Public Prosecutor, for the State. CORAM: R.C. CHAVAN, J. DATED: MARCH 23, 2011 ORAL JUDGMENT: 1. This appeal is directed against the 2 AJ-543.93 conviction of the appellants by the learned Additional Sessions Judge, Nashik for the offences punishable under Sections 392 and 395 of the Indian Penal Code (for short, "the IPC") and sentence of RI for seven years and fine of Rs.1,000/-, or in default RI for one year, imposed upon them on completion of Sessions Trial No.5 of 1993 before the learned Additional Sessions Judge. The learned Judge also convicted the appellants Ratan Mahadu Pawar and Suresh Mahadu Pawar for the offence punishable under Section 397 of the IPC and sentenced them to RI for seven years. 2. Facts which are material for deciding this appeal are as under: On 17-9-1991, on the Nashik-Pune highway within the precincts of village Mohadari in Sinnar Taluka, fifteen persons stopped vehicles proceeding by the highway and robbed the occupants of their valuables. The occupants of the vehicles were also injured in the assaults so launched. Cash and valuables worth Rs.1,13,575/- were taken away from the victims. A police patrol party was contacted and it soon arrived at the spot. One of the victims Kerba gave a report on which an offence 3 AJ-543.93 was registered. Curiously, some of the articles robbed, including cash, were stated to have been found at the spot itself. Two suspects were also found at the spot. A dog squad was also called. In the course of the investigation, the police recorded statements of witnesses, arrested the appellants and five other persons, who had been put to trial along with the appellants, and charge-sheeted them for their involvement in dacoity along with five absconders. One of the miscreants was stated to have expired. 3. Upon receipt of the charge-sheet, the learned Judicial Magistrate, First Class, Sinnar, committed the case to the Court of Sessions at Nashik where the learned Additional Sessions Judge, to whom the case was assigned, charged the appellants along with five others of the offences punishable under Sections 395 and 397 of the IPC. Since they pleaded not guilty, they were put on trial at which the prosecution examined in all eleven witnesses in order to bring home the guilt of the accused persons. After considering the evidence tendered in the light of the defence of denial, the learned Additional Sessions Judge convicted and sentenced the appellants, as afore- 4 AJ-543.93 mentioned. Aggrieved thereby, the appellants are before this Court. 4. I have heard the learned counsel for the appellants and the learned APP for the State. With the help of both the learned counsel I have gone through the record. PW-1 Sunanda and her husband PW-3 Wastupal were travelling in one of the vehicles and so were PW-4 Fulchand Bhandari and his wife PW-5 Chandrakala in another vehicle. PW-2 Kerba was also a passenger in one of the vehicles. All of them state that on the incidental evening their vehicles were stopped and some unknown miscreants beat them up and robbed them of their cash and valuables. PW-2 Kerba gave a report on the basis of which an offence was registered. PWs-6 and 7 are Doctors Sunil More and Pitamber Jadhav, who examined the victims and found that the victims had suffered several injuries, none of which was grievous. PWs-9 and 10 are Naib Tahsildar Shahane and Tahsildar Sonawane before whom test identification parades were held. PW-8 Malode and PW-11 Saikar conducted the investigation. 5. PW-2 Kerba had identified accused No.2 Ratan Mahadu Pawar, accused No.3 Suresh Mahadu 5 AJ-543.93 Pawar and accused No.8 Bhagwan Rajaram Pawar before the Court. However, he was not made to identify any of these persons at the test identification parade held. So, his identification of the three appellants in the Court has a diminished value. The evidence about the identification parade held by PW-9 Naib Tahsildar Shahane need not be considered since the witness Deepak Dattatray Joshi, who is supposed to have identified a miscreant at that parade, was not examined at the trial. PW-10 Tahsildar Sonawane stated that one Manoj Bhandari, who has not been examined, identified the appellant Ratan Mahadu Pawar and Shrinivas Fulchand Bhandari, who has also not been examined, identified Jagannath Mahadu Pawar. He states that Abdul Karib Baig Mirza, who has not been examined, identified Ratan Mahadu Pawar. Witness Shaikh Sikander Bhai did not identify any of the accused. Deepak Joshi identified Uttam Eknath Pawar, but Deepak Joshi has not been examined. Wastupal, who has been examined as PW-3, was called to identify the accused but did not identify anyone. PW-4 Fulchand Bhandari identified Ratan Mahadu Pawar and PW-5 Chandrakala identified Somnath Mahadu Pawar. On the basis of this identification, the learned Additional Sessions Judge has held the 6 AJ-543.93 identification of the accused by the witnesses before the Court to be reliable. The learned counsel for the appellants pointed out that though PW-4 Fulchand Bhandari was hesitant in admitting having been shown the miscreants at Sangamner police Station and stated that he saw only one accused person at Sangamner police Station and so did his wife and son, his wife, PW-5 Chandrakala was candid in admitting in the cross-examination that before the identification parade was held at Sinnar, the police had brought the accused and showed the accused to them at Sangamner by calling her, her husband, two sons and drivers at the police station. Thus, the entire effect of the identification parade held by PW-10 Tahsildar Sonawane gets washed off. As rightly pointed out by the learned APP, it is not necessary that the evidence of substantive identification before the Court must always be supported by test identification parade in order to support the conviction. In that case such a shaky identification would have to be corroborated by some other piece of evidence, like discovery of articles from the concerned miscreants. In this case, there is no discovery from any of these appellants and therefore it was hazardous for the learned Additional Sessions Judge to have 7 AJ-543.93 relied on such an identification which had preceded the police having shown to the witnesses the accused persons before the test identification parade was held. 6. The evidence of PW-8 API Malode, who seems to have reached the spot immediately after the incident, is also curious. He seems to have arrested two persons on the spot and also stated that the dog squad, which had been called, had in fact pointed to one of those persons. Those persons have been discharged under Section 169 of the Criminal Procedure Code and have not been put on trial. There may be excellent reasons with the I.O. for doing so but unfortunately they have not been clarified in the depositions of both the I.Os. API Malode also states that curiously when he performed the panchnama on the next morning, some suit cases and even cash were found on the spot which he returned to the persons who were robbed. In the absence of anything which would independently connect the appellants to the crime, the appellants could not have been held guilty on the basis of their identification by the witnesses in the Court, particularly when at least one witness states that the accused persons were shown to the witnesses in the 8 AJ-543.93 police station at Sangamner before the test identification parade so held at Sinnar. 7. In view of this, the appeal is allowed. The conviction of the appellants for the offences punishable under Sections 392 and 395 of the IPC and the sentence of RI for seven years and fine of Rs.1,000/-, so also the conviction of appellants Ratan Mahadu Pawar and Suresh Mahadu Pawar for the offence punishable under Section 397 of the IPC and the sentence of RI for seven years, imposed upon them are set aside. They are acquitted of the said offences. Their bail bonds stand cancelled. Fine, if paid, be refunded to the appellants. Sd/- (R.C. CHAVAN, J.)