1 Ladda IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No.1133 OF 2003. 1) Syed Umar Sayed Abbas, age 37 years, residing at Nagpada, Teli Mohalla, Farid Bldg,2nd Floor, Room No.205, Mumbai 400 008. 2) Abid Usman Khan,aged 28 years, residing at 83, Temkar Street, 3rd Floor, Room No.10, Mumbai 400 008. 3) Mohammed Ibrahim Adam Hussain, aged 26 years, Temkar Street, Rasul Bldg No.37, R.No.15, Mumbai 400 008. 4) Sardarali Safdarali Khan,aged 27 years, residing at Mahim Mori road, Behind Bus Depot, Room No.240, Mahim, Mumbai 400 016. Appellants. Orig.Accused Nos.1,3,4 and 12 Versus. The State of Maharashtra at the instance of D.C.B.,C.I.D.vide Cr.No. 236/95. ..Respondent. 2 WITH CRIMINAL APPEAL No.1156 OF 2003 Mohmed Sabir Mirza Kasim, an adult Indian inhabitant aged about 38 years, residing at 57/A, Temkar Street, Mumbai-8 (at present in Kolhapur Central Prison) ..Appellant. Orig.Accused No.9 Versus. State of Maharashtra at the instance of D.C.B., C.I.D., Police Station, Mumbai C.R. No.236/95. ..Respondent Mr A. Majeed Memon with Mr S.Kanse for the Appellant in Criminal Appeal No.1133/2003. Mr Taraq Sayed with Ms Sarfaj Shaikh in Criminal Appeal No.1156/2003 Mr D.P.Adsule, A.P.P.for the State-respondent. Mr A.S.Gadkari,A.P.P. for the Respondent-State. CORAM: BILAL NAZKI, AND A.R.JOSHI,JJ RESERVED ON : 31.08.2009. 3 DELIVERED ON: 15th SEPTEMBER,2009 JUDGMENT (Per A.R.Joshi,J): 1. Both the present criminal appeals are being disposed of by this common judgment as they are arising out of the same impugned judgment and order passed in Sessions Case Nos. 737/1996 and 13/1997 arose out of the same incident which took place on 12th August, 1995 regarding firing opened on the deceased and one more person, when at about 3:00 p.m. On 12.8.1995 they were sitting in one Ganesh Festival Pendal talking with each other. Criminal Appeal No.1133/2003 is preferred by original accused Nos.1,3,4 and 12 and Criminal Appeal No. 1156/2003 is preferred by original accused No.9. 2. By the impugned judgment and order dated 23.7.2003 passed by the Additional Sessions Judge,Greater Bombay (the Trial Court for short)accused were convicted for the offence punishable under Sections 302, 307 read with Section 120(B) of the Indian Penal Code(IPC). 4 3. At this juncture, it may also be mentioned that the said conviction was awarded against the appellants by the Trial Court also for the offence punishable under Sections 302, 307 of the IPC read with section 34 of the IPC. It appears that such conviction order for the offence punishable under section 120-B and also under Section 34 of the IPC came to be passed on the premise that there were alternate charges framed against the appellants along with other co-accused, alternatively taking the shelter of provisions of Section 120-B for criminal conspiracy and provisions of Section 34 of the IPC for common intention. In our opinion, it is erroneous that both the said sections i.e. 120-B and 34 of the IPC would be applicable simultaneously, considering the specific circumstances alleged against the appellants. Whatever that may be but in our opinion, i.e.,not the main aspect to be considered but it has to be ascertained as to whether the conviction for the offence punishable under Section 302 and punishable 5 under Section 307 of the IPC read with section 120- B of the IPC i.e.,regarding conspiracy is required to be upheld or not and said question is answered herein in the foregoing paragraphs after discussing the rival arguments advanced during the hearing of the present appeals. 4. Apart from conviction of the appellants for the offences punishable under Sections 302 and 307 of the IPC, as above, accused Nos. 1, 3, 4 and 12 were also convicted for the offence punishable under Section 27 of the Arms Act, whereas accused No.9 was also convicted for the offence punishable under section 25 of the Arms Act. Suffice it to say that certain punishment for imprisonment and also fine were imposed on the appellants and the main punishment imposed is for imprisonment of life for the offence punishable under Sections 302 and 307 read with Section 120-B of the IPC. This is the judgment which is impugned in both the present appeals. 5. Certain factual position is required to be 6 narrated in order to ascertain the scope of the prosecution and in order to ascertain the correctness and legality of the reasoning given by the Trial Court in coming to the conclusion of the guilt of the appellants for the offences charged. It is also necessary to ascertain as to whether there was any possibility for the alleged five eye- witnesses to observe the assailants during the incident of firing which took place in the afternoon of August,1995 in Ganesh pendal. On the relevant day and time the deceased, a social worker, belonging to a particular political party, and having his avocation as shopkeeper in Mahim area was sitting in Ganesh Festival Pendal and was busy in talking with one Rajaram Sarfare, the injured who was the contractor for decoration of the pendal. Few other workers as well as members of Ganpati Festival Mandal were in the vicinity and were doing some work. When the deceased and injured were talking to each other while sitting on chairs in the pendal, two unknown persons entered the 7 pendal from Kapad Bazaar Road and opened fire on Rajendra Rajaram Gupta (hereinafter referred as the deceased). Allegedly, the said two assailants were escorted by other three persons. All the said five persons were armed with some weapons/arms. According to the prosecution, the fire arms were used by accused No.1 and accused No.12. A number of bullets were fired on the chest, face and other parts of the body of the deceased. Due to such assault and firing of bullets the deceased died on the spot. Due to such firing noise of the persons in the near vicinity became aware of the situation and in fact there was a sort of commotion created in the pendal and everybody started running for shelter. During such situation of rather a chaos, allegedly, the five eye witnesses happened to see the main assailants i.e. Accused Nos. 1 and 12 and also their other associates i.e.,accused Nos. 3,4 and 9. Also, according to the prosecution, injured Rajaram Sarfare got frightened and started running out of the pendal and towards the police chowky in 8 the said area which was situated beyond the road and within a short distance. However, the fire was also opened on said Rajaram Sarfare and due to which he sustained bleeding injuries and fell on the ground. At this juncture, it may be mentioned that the substantive evidence of Rajaram Sarfare (PW 6) is significant inasmuch as he narrated the incident which is deviating from the incident narrated by other witnesses i.e.P.W.1, P.W.4 and P.W.5 and P.W.7. 6. According to the prosecution, after the said firing was over, immediately in a fraction of moments the assailants left the spot and flee away with weapons/arms in their hands. Immediately, injured (deceased) Rajendra Gupta was removed to Hinduja Hospital, however, he was declared dead on arrival. Injured Rajaram was also taken to Hinduja Hospital in a taxi and admitted for treatment. Mahim police arrived on the spot and investigation was started. CR No.456/1995 was registered at Mahim Police Station. Infact, parallel 9 investigation was also started by D.C.B. C.I.D., by registering fresh CR No.236/95. Initially, F.I.R., was given by P.W.5 Rajesh Akhare who happened to have seen the incident of firing from the first floor gallery of his residential building which is abutting to the said pendal. During the investigation, the appellants and other co-accused were arrested. There were in all 13 accused named in the said case. However, only accused Nos. 1, 3, 4, 7,9,11 and 12 were tried. Other accused persons were either dead or were absconding and as such it is not necessary to give details as to what was the role played by them. By the impugned judgment and order, original accused Nos. 7 and 11 were acquitted, The present appellants were convicted and they preferred present two appeals, as mentioned above. 7. During the trial before the Additional Sessions Judge, Greater Bombay total 27 witnesses were examined. However, suffice it to say that the substantive evidence of eye-witnesses P.Ws. 1, 4, 10 5, 6 and 7 and the substantive evidence of two Special Executive Officers P.Ws. 18 and 21 who conducted the T.I.parade and substantive evidence of some panchas regarding alleged recovery of the fire arms from accused Nos. 1, 3 and 9, is required to be dealt with in order to ascertain the involvement of the present appellants. 8. P.W.1 is alleged eye-witness, however, according to him, he first heard the shots and some noise like bursting of fire crackers and then he could see the assailants and also saw that the assailants were firing at Rajaram Sarfare, the injured P.W.6, when said P.W.6 was running towards nearby police chowky. According to P.W.1 he identified four accused persons in the T.I.parade which was conducted on 30th August, 1995 conducted at Arthar road Central Prison and he identified accused out of 10 to 12 persons standing in a row. According to the case of the prosecution, said T.I.parade was conducted by P.W.21, Special Executive Officer on 30.9.95. According to the 11 said P.w.21, he conducted two parades on that day. In the first parade he placed accused No.1 and one more accused, who subsequently died and could not be tried, were put to identification whereas in the second parade accused Nos. 3 and 4 were put to identification. This variance in the substantive evidence of P.W.21, S.E.O., and P.W.1 alleged eye- witness is one of the mitigating circumstances to the case of the prosecution and raises a doubt whether P.W.1 had infact, identified any of the assailants in any such identification parade, as according to him he identified four accused persons in one parade and that too on 30th August, 1995. Apart from the above substantive evidence of P.W.1, according to him, he identified the another accused no.12 in one more parade conducted in the year 1996. According to the case of the prosecution, such parade was conducted by P.W.No.18 another Special Executive Officer and it was conducted on 4th October, 1996. It is significant to note that said accused no.12 was put to 12 identification after one year and two months of the incident. 9. P.W.2 and 3 are the inquest and spot panchas and as such for the purpose of deciding the present appeals it is not relevant to test their evidence in detail. P.W.4 is another alleged eye- witness who is the son of the deceased Rajendra Gupta. According to him, initially he heard the noise of bursting of some crackers and then he could see what was happened in the pendal. According to him, at the time of the incident he was sitting in his grocery shop and was making payment of some bill to one person by name Bhatia. It is significant to note that said Bhatia is not examined by the prosecution though his presence is mentioned by said P.W.4. Again, it is significant to note that initially said P.W.4 heard the noise of firing and then he had the occasion to see as to what had happened. According to him, he identified accused no.1, as the person opening fire on his father and identified him in the T.I.parade, 13 subsequently conducted. According to him, he also identified accused No.12 in the second parade which was belatedly conducted after about a year. 10. P.W.5 is the first informant Rajesh who had allegedly witnessed the incident while he was standing in the first floor gallery of his building and which is abutting to the pendal. Also, according to him, he identified accused no.1 and 12 in the respective T.I.parades conducted at two different occasions. P.W.6 is the injured Rajaram Sarfare who had sustained bullet injuries. According to him, he could not see any of the appellants. However, while he was talking to the deceased, he heard the noise and he duck for shelter and in that process got the bullet injuries when the fire was opened on him and he fell unconscious. He did not mention anything as to running towards nearby police chowky and receiving any injuries in such process of running. It is significant to note that he deviated from the police statement. However, he has not been put to 14 cross-examination by the prosecution in order to extract the material contradictions. On this aspect, it must be mentioned that the substantive evidence of P.W.6 is not supporting the case of the prosecution inasmuch as, according to the prosecution the fire was opened on said witness when he was running to police chowky and in the midst he got injured and fell on the ground and it was witnessed by other witnesses. Considering the substantive evidence of this witness along with the evidence of other alleged eye witnesses, in our opinion, a reasonable doubt has been created as to whether any of the alleged eye witnesses had any occasion to see the assailants when admittedly the incident occurred in fraction of moments and when the assailants were unknown persons and there was fire opened by two assailants and who were allegedly associated by other three persons. 11. P.W.7 is also the eye-witness who had allegedly seen the incident of assault. However, according to his substantive evidence he did not 15 identify any of the accused in the T.I.parade and as such his substantive evidence cannot be taken as incriminating against the appellants when considering the case of these witnesses as to noticing occurrence only after hearing firing shots and then trying to run for shelter in the commotion which ensued after the opening of the fire. 12. Apart from the above state of affairs of the substantive evidence of the prosecution witnesses who are alleged eye witnesses, certain other circumstances, as alleged by the prosecution incriminating against the appellants are that there is recovery of one fire arm and clothes at the instance of accused no.1, recovery of pistol and seven cartridges at the instance of accused no.3 and recovery of fire arm at the instance of accused no.9 in another case. At this juncture, it must be mentioned that the fire arm allegedly recovered at the instance of accused No.9 was in fact recovered during the investigation of another matter and the same fire arm was produced in the 16 present case by the Investigating Officer as the weapon used by accused No.9 during the incident. The effect of such recovery of weapons can be discussed herein at the appropriate place in order to ascertain whether the evidence of such recovery is trustworthy and whether it is incriminating against the appellants. 13. In order to ascertain whether the recovery, as mentioned above, is against any of the appellants-accused, firstly certain admitted position is required to be narrated. It appears that the deceased had about 14 injuries and they were from the firing opened on him by the assailants. Bullets were recovered from the body, so also a bullet was recovered from the person of injured P.W. 6. The ballistic expert s report is at Exh.133. However, considering the said ballistic report as to the findings and considering the case of the prosecution as to the use of revolver/pistol by accused Nos. 1 and 12 only and not by other accused, it can be seen that the alleged weapons 17 recovered at the instance of accused nos. 1 and 3 and also at the instance of accused no.9 cannot be conclusively taken as the weapons used in the present assault. Needless to mention that it is not the case of the prosecution that accused no.9 opened fire. In fact, during the trial, the panch witness in whose presence allegedly accused No.9 made a statement and thereafter produced the fire arm, was not examined and the said panchnama was taken on record through the evidence of the Investigating Officer. It must be said that the Trial Sessions Court had erred in putting reliance on the substantive evidence of the I.O., in the absence of the evidence of the panch witness, while accepting the recovery of fire arm at the instance of accused no.9. Moreover, it must be said that the reasoning given by the Trial Sessions Court as against the accused No.9 is far fetched and cannot be accepted for implicating him. This is more so as the involvement of accused No.9 is held accepted by the Sessions Court, only for the recovering of 18 the weapon and not for any other material on record. On this count itself, the conviction of accused no. 9 cannot sustain and is required to be set aside. 14. So far as involvement of other appellants accused Nos. 1, 3, 4 and 12 is concerned, the substantive evidence of alleged eye-witnesses has been discussed in detail hereinabove and mainly considering very short period available for the witnesses to observe the assailants, so as to subsequently identify them during the T.I. parades, it must be held that the substantive evidence of said alleged eye-witnesses do not inspire confidence so as to pin down mainly accused Nos. 1 and 12 and also accused Nos. 3 and 4. This is more so when said eye witnesses specifically mentioned as to knowing the incident of firing only on hearing the sound as bursting of something like fire crackers and then only witnessing the incident that also under the circumstances which must have caused anybody to go for a shelter in order to save 19 his own life. Moreover, the substantive evidence of P.W.6 injured is not supporting the case of the prosecution and it is in deviation with the substantive evidence of other alleged eye-witnesses i.e. P.Ws. 1, 4, 5 and 7. As such, it must be said that the Trial Sessions Court has also erred in holding the said appellants involved in the present matter. 15. Lastly, another argument advanced on behalf of appellants is required to be examined. According to the case of the prosecution, the F.I.R., is given by P.W.5. He allegedly witnessed the incident from the first floor gallery of the building abutting to the pendal. Considering the topography of the scene of the incident and considering sketch map produced by the prosecution and also considering the substantive evidence of other witnesses as to the pendal was already built with tarpoline and work of electrification and decoration was going on, it cannot be accepted that the place at which the deceased was sitting in the 20 pendal was clearly visible from the first floor gallery where P.W.5 was standing. 16. Apart from the above, it was also argued on behalf of the appellants that the T.I. parades allegedly conducted by two S.E.Os. (P.Ws. 18 and 21), cannot be taken as reliable so as to implicate the appellants. At the cost of repetition, it must be mentioned that according to P.W.1, he identified four accused on 3.8.1995 in one T.I.parade out of 10 to 12 persons standing in the row. Whereas, the case of the prosecution is otherwise and at no point of time four accused persons were put to test identification parade. Moreover, the substantive evidence brought on record through the cross- examination of said two S.E.Os., goes to show that the manner in which the parades were conducted, does not inspire the confidence as to negating any possibility of the identifying witnesses seeing the suspects in advance. When the case is mainly based on the identity of the unknown assailants and mainly considering the specific instances under 21 which the incident of firing occurred and considering no much time available to the witnesses to observe the distinguishing features of the assailants, it assumes much importance whether the identification parades were properly conducted as per the guidelines. Considering this aspect, in our view, the learned Trial Sessions Court had placed unwarranted reliance on such T.I. parades and reached in holding the establishment of charges against the appellants-accused. 17. In view of the above, it must be said that the prosecution had failed to establish the charges levelled against the appellants beyond reasonable doubt and that impugned judgment and order is required to be set aside. With these observations, both the appeals are disposed of with following order. ORDER: Criminal Appeal Nos. 1133/2003 and 1156/2003 are allowed as under:- 22 1.Appellants original Accused Nos.1,3,4, 9 and 12 are acquitted of the offence punishable under Sections 302, 307 read with section 120-B of the Indian Penal Code. The impugned judgment and order of conviction passed by the learned Additional Sessions Judge, Greater Bombay dated 23.7.2003 in Sessions Case No.737/1996 and 13/1997 is quashed and set aside. 2.Appellants original Accused Nos.1,3,4, and 12 shall be released forthwith from the jail custody if not required in any other case. 3.Fine amount, if any paid, shall be refunded to the accused. 4.The bail bonds of accused No.9 shall stand cancelled. 5.Appeals are disposed of in terms of this order. Sd/- (BILAL NAZKI,J) Sd/- (A.R.JOSHI,J)