IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPEAL NO.341 OF 2005 APPEAL NO.341 OF 2005 APPEAL NO.341 OF 2005 Taj Khan @ Bablu Aas Mohd.Khan .. Appellant Versus The State of Maharashtra .. Respondent Mrs.V.R.Raje appointed for the appellant. Mr.Y.S.Shinde, A.P.P for the respondent. WITH WITH WITH CRIMINAL CRIMINAL CRIMINAL APPEAL NO.476 OF 2005 APPEAL NO.476 OF 2005 APPEAL NO.476 OF 2005 Mohammad Yasin Gulam Mohd.Ghachi .. Appellant Versus The State of Maharashtra .. Respondent Ms.Anjali Iyer for the appellant. Mr.Y.S.Shinde, A.P.P for the respondent. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 27th February & : 27th February & : 27th February & 03rd 03rd 03rd March 2009. March 2009. March 2009. ORAL ORAL ORAL JUDGMENT: JUDGMENT: JUDGMENT: . The submissions of the learned counsel appearing for the parties were heard earlier. The learned counsel who has been appointed to espouse the cause of the appellant in Criminal Appeal No.341 of 2005 has made detailed submissions and the said submissions have been adopted by the learned counsel appearing for the appellant in support of Criminal Appeal No.476 of 2005. (2) 2. Criminal Appeal No.341 of 2005 is filed by the accused No.1 and Criminal Appeal No.476 of 2005 is filed by the accused No.2. Both the accused have been convicted for the offence punishable under section 451 read with section 34 and section 392 read with section 397 of the Indian Penal Code. For the offence punishable under section 451 read with section 34 of the Indian Penal Code the appellants have been sentenced to undergo rigorous imprisonment for five years and to pay fine of Rs.500/-. The accused have been sentenced to undergo rigorous imprisonment for seven years for the offence punishable under section 392 read with section 397 of the Indian Penal Code. It may be noted here that the accused No.1 Taj Khan @ Bablu Aas Mohd.Khan was in judicial custody from 26th September 2003 till the disposal of the case and the accused No.2 Mohd.Yasin was in judicial custody since 12th September 2003. It must be noted here that the accused No.1 Mohd.Yasin was enlarged on bail by this Court by order dated 30th January 2008 on the ground that he had undergone sentence for period of four and half years. The accused no.1 was denied bail by this Court. 3. Briefly stated the case of the prosecution is that office of Anil Electric Company which is owned by (3) Naresh Modi is located on the ground floor of Kismath Building, Forjett Street, Mumbai 36. Brijeshchandra Pandey, Yogesh Shinde and Kumar Paanwala worked in the said company. on 21st Mach 2003 at about 4.30 p.m when they were present and carrying on their work in the office, the accused Nos.1 and 2 alongwith their another associate armed with the chopper entered the said office. They pointed out choppers to them. They cut the telephone wire by using the chopper. They robbed Brijeshchandra of cash of Rs.2,500/-. They also robbed a chain from the said Brijeshchandra. They also snatched a chain from Yogesh as well as cash of Rs.2000/-. They snatched a golden chain and cell phone from Kumar Paanwala on the point of the choppers. The allegation is that they ransacked the office of the said company and when they could not get anythingelse, they left the office and boarded taxi No.MH02-R-7092 which was standing outside which was being driven by another accused Satyadev. 4. The further case of the prosecution is that when the accused started running away, the said Brijeshchandra and his two colleagues came out of office and raised an alarm. They attempted to chase taxi. After travelling for short distance the said taxi dashed (4) against a garbage box on the road. By that time members of the public had gathered there. Therefore, the accused got down from the taxi and started running away. The members of the public apprehended the driver of the taxi i.e accused Satyadev. Yogesh Shinde reported the incident to the police. The offence was registered. The case of the prosecution is that on 12th September 2003 officers attached to Gamdevi police station received information that culprits involved in the case are going to arrive at Maulana Shaukat Azad Road. The accused Nos.1 and 2 (Taj Khan and Mohd. Yasin) were apprehended by Assistant Inspector of Police Khaire and his staff members. The accused Nos.1 and 2 during the course of investigation made disclosure statements pursuant to which articles such as chain, cell phone and choppers were recovered at their instance. During the course of investigation, test identification parade were allegedly conducted. The first test identification parade was conducted on 29th September 2003 where two witnesses allegedly identified the accused Nos.1 and 2. The second identification parade was conducted by the police on 20th October 2003. In the second identification parade the other witness Kumar Paanwala allegedly identified the accused. It must be stated here that the trial Court passed an order of acquittal (5) of the third accused Satyadev who was the driver of the taxi. 5. The learned counsel appearing for the appellant in Criminal Appeal No.341 of 2005 who has been appointed to espouse the cause of the appellant No.1 Taj Khan has taken me through notes of evidence and other material documents on record. 6. The main submission made by the learned counsel appearing for the 1st accused is that the incident had allegedly taken place on 21st March 2003 and the test identification parades were held on 29th September 2003 and 20th October 2003 respectively and therefore it is not possible to believe that after lapse of six months and more, the alleged eye witnesses who had alleged seen the accused for few minutes at the time of incident could have identified the accused persons. Her submission is that the identification of the accused in test identification parades belatedly held can be no corroboration to the so called identification of the accused by the eye-witness in the Court. As test identification parade in this case cannot be used to corroborate identification of the accused in the Court, it is unsafe to convict the accused only on the basis of (6) identification of the accused in the Court by the eye-witnesses. Her submission is that apart from the fact that the test identification parade has been conducted after gap of six months and more, there is a gross delay in holding identification parade from the date on which the accused were nabbed. She pointed out that as per the prosecution case, on 12th September 2003 the accused were arrested. However, the first test identification parade was held seventeen days thereafter and second one was held one month and eight days thereafter. Apart from this she submitted that there are inherent defects in the test identification parades and the guide-lines laid down by this Court in the criminal manual for holding test identification parades have not been complied with. She invited my attention to evidence of P.W.No.9 Sharad Vichare, the Special Executive Officer who allegedly conducted both the test identification parades. The said witness has stated that the accused No.1 Taj Khan stood between dummy Nos.4 and 5 and the two witnesses, namely, the complainant Brijeshchandra (P.W.No.1) and Yogesh Shinde (P.W.No.2) identified the accused No.1. She invited my attention to the panchnama recorded at the time of test identification parade which is at Exhibit 28. She pointed out from the panchnama that it is recorded (7) therein that accused No.1 Taj Khan had taken position between dummy Nos.3 and 4 and the said two witnesses identified the person standing between dummy Nos.4 and 5 as the accused. She pointed out that during the course of the cross-examination of P.W.No.9 Sharad Vichare attention of P.W.No.9 was specifically invited to the statement in the panchnama that the accused No.1 Taj Khan had stood between dummy Nos.3 and 4. After pointing out this fact in the panchnama that the accused No.1 had taken position between dummy Nos.3 and 4, a suggestion was given that the complainant identified a suspect who was standing between dummy Nos.4 and 5. The P.W.No.9 accepted that the statement that the complainant identified person between dummy Nos.4 and 5 is correct. She submitted that there was an opportunity available to P.W.No.9 to explain this major discrepancy but, unfortunately that he has not explained the discrepancy but has stood by the stand taken by him in the examination-in-chief. She submitted that the evidence of the recovery at the instance of the accused is also doubtful for various reasons. She submitted that even evidence of the so called three eye-witnesses does not inspire confidence. She, therefore, submitted that the identity of the accused was not established beyond a reasonable doubt and therefore the appellants (8) were entitled to an order of acquittal. As stated earlier, the learned counsel appearing for the appellant in Appeal No.476 of 2005 had adopted the aforesaid submissions. 7. The learned A.P.P appearing for the State submitted that the accused No.3 was apprehended on 12th September 2003 and the test identification parades were held in reasonable proximity from the date of arrest. He submitted that the test identification parades were held as per the guide-lines laid down by this Court. He submitted that the reference in the panchanama of the said test identification parade that the accused No.1 had taken place between dummy Nos.3 and 4 is obviously an accidental error and no importance can be attached to it. He submitted that in any event all the three eye-witnesses had seen the accused persons for sufficiently long time. He submitted that the evidence of three eye-witnesses has been recorded one and half years after the incident and it is impossible that they would not have identified the accused who had terrorised them by using choppers. He submitted that this is not the case where only a solitary witness has identified the accused in the Court but this is a case where three eye-witnesses have identified the accused by describing (9) the roles played by them and the same eye-witnesses had identified the accused during the test identification parades. He submitted that this is sufficient corroboration to the identification of the accused by the eye-witnesses in the Court. He submitted that apart from all this, the prosecution has established recovery of the weapons (choppers) and the articles snatched by the accused. He, therefore, submitted that guilt of the accused Nos.1 and 2 has been established beyond a reasonable doubt and no interference is called for. 8. I have given careful consideration to the submissions. I have perused the notes of evidence and other material on record. It will be necessary to refer to evidence of P. W.No.1 Brijeshchandra Kamlaprada Pandey. He stated that on 21st March 2003 (wongly stated as 21st January 2003) as usual his office i.e the office of Anil Electric Company owned by Naresh Modi opened at 10.00 a.m. His employer was not present due to sickness. He stated that Yogesh Shinde (P.W.No.2) and Kumar Paanwala (P.W.No.3) were present in the office alongwith him. At about 4.30 p.m three persons entered the office. When enquired with the said persons one of them took out chopper from his trouser, another offender went to P.W.No.2 Yogesh Shinde and at the same time (10) third offender went to P.W.No.3 Kumar Paanwala. Even the third offender was brandishing chopper. He stated that the third offender who was standing by his side first proceeded to cut the telephone wire and snatched cash of Rs.2,500/- from him. The said accused also snatched a chain from him. In fact he stated that as chopper was shown to him he voluntarily handed over the chain to the said accused. He stated that the offender who had gone towards P.W.No.2 Yogesh had taken away Rs.50/- and a chain weighing one tola with a pendant of Ganesha from Yogesh Shinde (P.W.No.2). The third offender who had gone towards Kumar Paanwala (P.W.No.3) snatched cash of Rs.2000/- and a cell phone manufactured by Nokia and a chain worth Rs.12,000/-. Thereafter, the three offenders ransacked the office but could not get hold of anything. Therefore, they fled away by a taxi. Thereafter he described as to how he alongwith P.W.Nos.2 and 3 raised alarm and started shouting. The taxi after proceeding for some time towards August Kranti Maidan dashed a dustbin. The offenders got down and ran away. The members of the public nabbed the driver Stayadev. 9. He stated that on 29th September 2003 he was called to Arthur Road Jail and a test identification parade was held. He stated that he had first visited (11) the police chowki and from police chowki alongwith the police he proceeded to jail. He stated that after reaching jail he was made to wait for a while and thereafter members of staff of jail took him to the place of the test identification parade where 10 to 12 persons were seen standing. He identified the accused Nos.1 and 2 in the parade. By pointing out at accused Nos.1 and 2 who were present in the Court he stated that he identified the said two offenders at the time of identification parade by touching them. 10. The witness was extensively cross-examined by the advocate for the accused. He stated that there are total seven tables in his office and in the reception room there is a table. He stated that every table has got drawer. He stated that offenders had searched cabin, drawers and other places to see whether any cash was kept there. He admitted that the offenders had searched in the office of his employer for 15 minutes. He stated that offenders did not check the pockets of the persons present there for finding the key. 11. He admitted that he had not given description of the weapon in his complaint. He stated that accused No.2 Mohd.Yasin was sporting beard at the time of the (12) test identification parade in the Arthur Road jail. He stated that two persons standing in the row in the identification parade room were bearded and remaining persons were not having beard. He stated that no customer had come to his office from the date of the incident. He stated that after pulling down the shutter he proceeded to police station and at that time his peon had stayed inside the office. He admitted that the offenders had not made any attempt to break open the cash box after he disclosed to them that he was not possessing keys. He denied the suggestion that the police had earlier shown the photograph of the accused to him. 12. P.W.No.2 Yogesh Shinde narrated in detail as to what transpired on 21st March 2003. His version as reflected from paragraph 2 of his deposition is consistent with the version of P.W.No.1. He pointed out that the accused No.1 Taj Khan had stated that he identified the said accused in the test identification parade and had snatched away his gold chain with pendant of Ganesha and cash of Rs.50/- by pointing a chopper. He stated that the said accused was standing between position Nos.4 and 5. He also reiterated that he had identified the accused No.2 Mohd.Yasin who was standing (13) between dummies at serial Nos.9 and 10. In response to a question in the cross-examination he stated that he was unable to remember whether the persons standing in the parade were of different height, complexion and physic. He stated that he was unable to recollect whether he had given the specific description of each offenders to the police. 13. P.W.No.3 Kumar Paanwala gave the same version as version of P.W.No.1 Brijeshchandra of the incident of 21st March 2003. He also stated that he identified both the accused in the test identification parade. In the cross-examination he stated that the officer who was present at the identification parade did not tell him that two witnesses had already come and identified the offenders. He stated that he had visited Gamdevi police station on three occasions prior to the test identification parade. He stated that police inspector, havaldar and two or three persons not known to him were present. In paragraph 13 he admitted that he had gone to the police station first before going to the jail to identify the offenders. P.W.No.4 proved the panchnama in evidence. The said witness was extensively cross-examined by the advocates appearing for the accused. (14) 14. P.W.No.5 Kamruddin Ansari stated that on 18th September 2003 he was called to Gamdevi police station. He identified the accused Taj Khan present before the Court and stated that he is the same accused who was present in the police station. He stated that the accused had confessed before the police and had made a disclosure statement. 15. Now turning to the evidence of Krishna Naik (P.W.No.6), he is a panch witness to the recovery of muddemal articles from the shop by the name Sharaf Jewellers. P.W.No.8 Munna Khan Lal Khan identified the accused No.2 Mohd.Yasin in the Court and stated that he was the same person who was present in the police station. 16. That takes me to the consideration of all important version of P.W.No.9 Sharad Vichare. As stated earlier the first test identification parade was conducted by him on 29th September 2003 when P.W.Nos.1 and 2 identified the accused Nos.1 and 2. The panchnama of the first test identification parade is at Exhibit 28. In the said panchanama after recording names and other details of the dummies it is recorded that when (15) offer was given to the accused No.1, he voluntarily stood between dummy Nos.3 and 4. It is recorded in the panchnama that P.W.No.1 identified the person standing between dummy Nos.4 and 5 as the accused. He stated that P.W.No.1 narrated the role played by the said accused. After P.W.No.1 went out, the other witness P.W.No.2 was brought inside. Before the other witness was brought inside, it is stated that he offered both the accused the change the place. However, they declined. It is recorded in the panchnama that even the P.W.No.2 identified the persons standing between dummy Nos.4 and 5 as the accused. Thus, going by the panchnama at Exhibit 28, I find that the accused No.1 Taj Khan was standing between dummy Nos.3 and 4 when P.W.No.1 was brought for identification and he was standing at the same position when P.W.No.2 was called for identification. The panchnama records that both P.W.Nos.1 and 2 identified the person standing between dummy Nos.4 and 5 as the accused who had snatched the golden chain and cash of Rs.50/- from P.W.No.2 Yogesh Shinde. As pointed out earlier, in the cross examination at the instance of the accused No.1 the fact that the panchnama mentions that the accused No.1 had taken his position between the dummy Nos.3 and 4 was brought to the notice of the P.W.No.9. At that stage (16) P.W.No.9 had an opportunity to explain this discrepancy. However, he reiterated that the P.W.No.1 identified the suspect who was standing between dummy Nos.4 and 5. If what was mentioned in the panchnama at Exhibit 28 that the accused No.1 Taj Khan had taken position between dummy Nos.3 and 4 was incorrect, there was every opportunity to P.W.No.9 to explain this in the cross-examination as a specific question was asked to him on this aspect by inviting his attention to what is stated in panchnama at Exhibit 28. 17. Perusal of the panchnama at Exhibit 28 shows that on internal page 5 thereof it is specifically recorded that the accused Taj Khan had taken place between dummy Nos.3 and 4. It is specifically recorded that P.W.No.1 identified the person standing between dummy Nos.4 and 5. Further, it is recorded that before P.W.No.2 was brought inside for identification parade, an offer was given by P.W.No.9 to the accused to change their position. However, both of them declined. That means accused Taj Khan continued to stand between dummy Nos.3 and 4. On the further page it is stated that P.W.No.2 identified the person standing between dummy Nos.4 and 5. This creates serious doubt regarding identification by P.W.No.1 and P.W.No.2 of the accused (17) No.1 Taj Khan in the test identification parade. 18. P.W.No.1 in paragraph No.7 of the cross-examination stated that accused Mohd.Yasin (accused No.2) had a beard when he had seen the accused in the identification parade. He further stated that one or two persons standing in a row in the identification parade room were bearded and remaining persons were without beard. In the F.I.R the P.W.No.1 has given description of the three accused and he has not stated that any one of them were having a beard. Thus, going by his version, the accused No.2 had not grown beard on the date of the offence but he had grown beard when he was subjected to test identification parade. On this aspect P.W.No.9 was cross-examined and he has stated as under: "The accused persons had not grown beard at the first IP but they had grown the beard at the second IP. The dummies in the first IP were also having no beard. Accused Mohd.Yasin had stump beard at the time of second IP. It is not true to say that I did not follow the guidelines as to finding out the identification marks of the accused. It is not true to say that I did (18) not observe accused Yasin before selecting dummies for him. It is not true to say that both the IP are not properly conducted by me." He came out with a version that the accused persons had not grown beard at the time of the first identification parade but they had grown beard at the second identification parade. P.W.No.1 has clearly stated that the accused No.1 had grown beard at the first identification parade. He stated that only one or two dummies had grown beard but P.W.No.9 has stated that dummies in the first identification parade were also having no beard. According to the version of the P.W.No.9, accused No.2 had grown beard on 20th October 2003 when the second identification parade was held. P.W.No.3 Kumar Paanwala stated in the cross-examination that on asked by the police he had stated the description of the offenders which was in his memory at that time. He stated that he was not aware as to why detailed description of the offender was not mentioned in his statement. He further stated thus: "... I had not seen any change in the appearance of accused Mohd.Yasin when I had identified him in parade. When I had gone to (19) the Arthur Road Jail to identify the offender Mohd.Yasin had grown the beard at that time." 19. The case of P.W.No.9 is that the accused No.2 Mohd.Yasin had grown beard only at the time of second identification parade. P.W.No.3 in the first breath stated that he has not seen any change in the appearance of the accused Mohd.Yasin when he identified him in parade. However, later on he stated that Yasin had grown beard at that time. 20. As stated earlier, the identification by P.W.No.1 and P.W.No.2 of the 1st accused Taj Khan becomes doubtful for the reasons recorded earlier. The identification of the accused No.2 by P.W.Nos.1 and 2 in the test identification parade poses a difficulty. According to P.W.No.1 the 2nd accused was sporting a beard at the time of test identification parade. However, according to P.W.No.9, the Special Executive Magistrate, when the first test identification parade was held the accused no.2 was not having beard. The evidence of P.W.No.3 on this aspect is not consistent. Initially he stated that in the identification parade held on 20th October 2003 he did not notice any change (20) in appearance of the 2nd accused but later on he stated that at the time of test identification parade the 2nd accused had grown beard. Therefore, a