Case: Nilesh Dinkar Paradkar Vs. State Of Maharashtra

and 2 on the one hand and Bharat Nepali and the appellant on the other hand.35. In our opinion, the voice test identification by PW-19, Jagdish Kulkarni is even otherwise unreliable. The voice identification was conducted without taking any precautions similar to the precautions which are normally taken in visual identification of suspects by witnesses. It is a matter of fact that PW-19, Jagdish Kulkarni was informed in advance that he had to identify the voice of the appellant. Similarly, PW-18 was informed that he had to identify the voice of Bharat Nepali. No attempt was made even to mix the voices of Bharat Nepali and the appellant with some other unidentified voices. In such circumstances, the voice identification evidence would have little value. It appears that the exercise was performed only for the record.36. This apart, there is no evidence on record to indicate that the mobile No. 0060133402008 was that of the absconding accused Bharat Nepali. There is also no evidence to indicate that he was using said number except voice identification by Tejasingh Chavan, PW-18. There is no other material on the record to connect the absconding accused Bharat Nepali with the number allegedly used by him. Similarly, there is nothing on the record to indicate that the appellant was having or using any of the following mobile number:- 9892849523, 9892367596, 9892296496 and 9892295687. 37. There is no seizure of any mobile phone or even sim card at the behest of the appellant. The prosecution has failed to produce any evidence from the operators with regard to the registration of the aforesaid phone numbers. In fact, the Investigating Officer, Nagesh Lohar specifically stated in his evidence that "we could not get those four subscription forms and the documents of the company though we enquire. It is true that till today we do not know who are the subscribers of those cell phones". 38. This apart, the High Court erroneously overlooked the infirmities in the evidence with regard to the authenticity of the tape recording produced in Court. The conversation between the appellant and Bharat Nepali was said to have been recorded on 28th October, 2004 by PW-17, P.S.I. Vijay Dalvi. According to him, although, he had been monitoring the Malaysian number of Bharat Nepali from 1st October, 2004 till 27th October, 2004, he had heard no incoming or outgoing calls. The incriminating conversation was said to have been recorded on 28th October, 2004. This conversation was relayed to a police telephone and recorded. He put a slip on the recorded cassette indicating the date and time of the conversation as recorded. He then handed the tape over to the D.C.P., Dhananjay Kamlakar. He heard the tape on the same day. Even though the conversation revealed a conspiracy for commission of a serious offence, like murder of an influential personality in Mumbai city, he took no further action. He just sealed the tape and kept it in his personal custody. 39. Even when the accused A1 to A4 were arrested on 8th November, 2004 the cassette was not produced before the Investigating Officer. It was kept by Kamlakar till 17th January, 2005, when he instructed P.S.I. Vijay Dalvi to hand over the tape to the Inspector of Police. It is a matter of record that the tape was received by the Investigating Officer on 18th January, 2005. Even the trial court refers to the inaction on the part of the D.C.P. Dhananjay Kamlakar as shocking. Thereafter, the High Court observed as follows:- "The evidence of DCP Dhananjay Kamlakar suggest that he had forgotten about the existence of the tape and only when Investigating Officer asked about the tape he remembered, checked his record and then informed the investigating officer that he had such tape in his custody. It is not easy to believe this story given by DCP Dhananjay Kamlakar as he was a highly trained and a Senior IPS Officer. The least which he could had done was to find out from the telephone companies as to who was the recipient of this call from the number under surveillance. He made no efforts to find out as to who had received this call. The conduct of this officer leads me to believe that this tape was suppressed for some reasons which best known to DCP Kamlakar." 40. Having concluded as such, the High Court, however, proceeds to hold that even such lapses cannot enure to the benefit of the appellant. The High Court believed the recording as it had been made upon prior approval by the Home Secretary given on 20th October, 2004. 41. In our opinion, the veracity of the voice identification would not improve merely because a recording has been made after receiving official approval. The crucial identification was of the voice of the person talking on the tape. We are of the considered opinion that the High Court has committed a grave error in confirming the conviction of the appellant as recorded by the trial court only on the evidence of voice identification. 42. Other circumstance relied upon by the High Court in convicting the appellant is the recovery of the alleged revolver from the house of the cousin of the appellant. In our opinion, the recovery from an open space, at the back of the house, which did not even belong to the appellant, could be of little assistance to the prosecution. Even otherwise it needs to be remembered that the trial court had in fact, acquitted the appellant for the offences under Section 3 read with Section 5 of the Arms Act. This acquittal was never challenged by the prosecution in appeal. Therefore, it was wholly inappropriate by the High Court to reverse the findings of the trial court in the absence of an appeal by the State. 43. In view of the above, we are of the considered opinion that the appellant was entitled to the benefit of doubt as the prosecution has failed to prove its case beyond reasonable doubt.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]25. We are of the considered opinion that there is much merit in the submissions made by Mr. Naphade. While acquitting accused Nos. 1 to 4, the High Court recorded that the defence had succeeded in creating a grave doubt about the veracity of search and seizure alleged to have taken place on 8th November, 2004. This conclusion has been reached by the High Court on appreciation of the evidence on the record. The High Court disbelieved the prosecution version with regard to the entire sequence of events leading to the raid.In our opinion, these conclusions recorded by the High Court have destroyed the entire substratum of the prosecution case. Having disbelieved the entire prosecution version, the High Court proceeds to distinguish the case of the appellant. The only additional circumstance relied upon by the High Court against the appellant is that his voice was identified by the officer Jagdish Kulkarni, PW-19, who had taken him in custody. The voice of Bharat Nepali was also identified by PW-18, A.C.P. Tejasingh Chavan.28. We are of the considered opinion that the approach adopted by the High Court was wholly erroneous. Having disbelieved the voice identification in the case of accused Nos. 1 and 2, there was no reason to adopt a different yardstick in the case of the appellant herein. The High Court discarded the evidence of PW-36, A.P.I. Dilip Raut and PW-38, A.P.I. Pasalkar mainly on the ground that they were accompanying the raiding party on 8th November, 2004 and had not heard the voice of accused Nos. 1 and 2 prior thereto. Another reason given by the High Court is that these officers being members of the investigating team were interested in successful completion of the investigation. But the same yardstick was not applied to the voice identification of absconding accused Bharat Nepali by Tejasingh Chavan, PW-18. He was also attached to DCP CID when the present offence was registered. He would, therefore, also be equally interested in successful completion of the investigation.In our opinion, the High Court has failed to take into consideration any of the precautions indicated above in accepting the evidence of Tejasingh Chavan, PW-18 and Jagdish Kulkarni, PW-19 with regard to the identification of Bharat Nepali and the appellant. The High Court, in our opinion, has given a wholly erroneous justification by holding that the voice of both the accused are distinctive, clear and identifiable. It is further observed that the conversation between the two accused is not a short conversation as in the case of accused Nos. 1 and 2. The High Court was also influenced by the fact that accused Bharat Nepali was in the custody of Tejasingh Chavan, PW-18 for a period of two weeks. Similarly, appellant was in the custody of Jagdish Kulkarni, PW-19 for a substantial period of time. Therefore, their voice identification was held to be reliable. This reasoning of the High Court is a mere repetition of the reasons given by the trial court.34. We are of the considered opinion that there is hardly any distinction in the evidence with regard to the voice identification of accused Nos. 1 and 2 on the one hand and Bharat Nepali and the appellant on the other hand.35. In our opinion, the voice test identification by PW-19, Jagdish Kulkarni is even otherwise unreliable. The voice identification was conducted without taking any precautions similar to the precautions which are normally taken in visual identification of suspects by witnesses. It is a matter of fact that PW-19, Jagdish Kulkarni was informed in advance that he had to identify the voice of the appellant. Similarly, PW-18 was informed that he had to identify the voice of Bharat Nepali. No attempt was made even to mix the voices of Bharat Nepali and the appellant with some other unidentified voices. In such circumstances, the voice identification evidence would have little value. It appears that the exercise was performed only for the record.36. This apart, there is no evidence on record to indicate that the mobile No. 0060133402008 was that of the absconding accused Bharat Nepali. There is also no evidence to indicate that he was using said number except voice identification by Tejasingh Chavan, PW-18. There is no other material on the record to connect the absconding accused Bharat Nepali with the number allegedly used by him. Similarly, there is nothing on the record to indicate that the appellant was having or using any of the following mobile number:- 9892849523, 9892367596, 9892296496 and 9892295687.This apart, the High Court erroneously overlooked the infirmities in the evidence with regard to the authenticity of the tape recording produced in Court. The conversation between the appellant and Bharat Nepali was said to have been recorded on 28th October, 2004 by PW-17, P.S.I. Vijay Dalvi. According to him, although, he had been monitoring the Malaysian number of Bharat Nepali from 1st October, 2004 till 27th October, 2004, he had heard no incoming or outgoing calls. The incriminating conversation was said to have been recorded on 28th October, 2004. This conversation was relayed to a police telephone and recorded. He put a slip on the recorded cassette indicating the date and time of the conversation as recorded. He then handed the tape over to the D.C.P., Dhananjay Kamlakar. He heard the tape on the same day. Even though the conversation revealed a conspiracy for commission of a serious offence, like murder of an influential personality in Mumbai city, he took no further action. He just sealed the tape and kept it in his personal custody.In our opinion, the veracity of the voice identification would not improve merely because a recording has been made after receiving official approval. The crucial identification was of the voice of the person talking on the tape. We are of the considered opinion that the High Court has committed a grave error in confirming the conviction of the appellant as recorded by the trial court only on the evidence of voice identification.In view of the above, we are of the considered opinion that the appellant was entitled to the benefit of doubt as the prosecution has failed to prove its case beyond reasonable doubt.