State of Maharashtra V/S Syed Umar Sayed Abbas & Ors

IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS. 345 346 OF 2012 STATE OF MAHARASHTRA APPELLANT(S SYED UMAR SAYED ABBAS & ORS JUDGMENT Pinaki Chandra Ghose J These appeals by special leave have been directed against the judgment and order dated 15.9.2009 passed by the High Court of Judicature at Bombay in Criminal Appeal No.1133 of 2003 and Criminal Appeal No.11503 whereby the High Court allowed the criminal appeals filed by the respondents herein and acquitted them The brief facts necessary to dispose of these appeals are that on 12.8.1995 at about 3.00 P.M. Rajendra Rajaram Gupta deceased) who was a social worker belonging to a particular political party and had a shop in Mahim area of Mumbai was sitting in Ganesh festival Pandal and was busy talking with one Rajaram Sarfare who was the Contractor for decoration of the Ganesh festival Pandal. As per the prosecution story when Rajendra Rajaram Gupta and PW 6 were talking to each other while sitting on chairs in the Pandal two unknown persons entered the Pandal from Kapad Bazaar Road opened fire on Rajendra Rajaram Gupta and pumped many bullets in his head chest and various parts of his body at point blank range. Allegedly the said two assailants were escorted by three other persons. The firing noise created commotion in the Pandal and while PW6 tried to run he was also hit by one bullet and he fell down. The assailants managed to escape. The deceased Rajendra Rajaram Gupta was taken to Hinduja Hospital immediately where he was declared dead on arrival. The FIR came to be immediately lodged at 4:15 P.M. by one eyewitness Rajesh Tanaji Akre who happened to have seen the incident from the first floor gallery of his residential building which was abutting to the said Pandal After investigation charges were framed against 13 accused personsunder Sections 302 307 120B read with Section 34 of the Indian Penal Code 1860 hereinafter referred to as “IPC”) and Sections 25 27 and 29 of the Arms Act 1959. Accused Nos.2 5 6 8 10 and 13 had either died or were absconding during the trial. Hence the trial Page 2 proceeded against the remaining accused i.e. Accused Nos.1 3 4 7 9 11 and 12 The Trial Court by its judgment and order dated 23.07.2003 convicted Accused Nos.1 3 4 9 and 12 for offences punishable under Sections 302 and 307 read with Section 120 B of the IPC. 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. Original Accused Nos.7 and 11 were acquitted of all the charges. The High Court vide the impugned judgment acquitted all the accused of all the charges by overturning the judgment of the Trial Court The State of Maharashtra has filed these appeals against the acquittal of Accused Nos.1 3 4 9 and 12. Learned Additional Government Advocate appearing for the State of Maharashtra has inter alia reiterated that the judgment of the Trial Court is well reasoned and well considered. The learned counsel for the respondents have rebutted the submissions of the appellant by relying upon the judgment of the High Court pressing that it had gone deeper into the case that the prosecution could not bring home the charges levelled against Page 3 the accused The Trial Court convicted the accused respondents on the basis of the testimonies of five eye witnesses Hemant Parshuram Akre Ganesh Rajesh Tanaji Akre PW5) Rajaram Sarfare and Kishor Maniklal Damaniya PW7) out of which PW6 was the injured eye witness. The Trial Court found their depositions to be corroborative of each other and also in tandem with the testimonies of PW18 and PW21 the Special Executive Magistrates who conducted the Test Identification Parade of the accused. The Trial Court held that it was conclusively established by the Test Identification Parade and eye witness testimonies that A1 and A12 had fired on the deceased. The recovery of the weapon along with the ballistic report further strengthens the conclusion. The Trial Court found that the prosecution has proved its case beyond reasonable doubt and hence the accused were convicted of the offences charged after being found guilty However the High Court pointed out serious lacunae in the above said evidences and hence the conviction order was set aside and the benefit of doubt was given to the accused. The High Court is of the view that the Trial Court had placed unwarranted reliance on the Test Identification Parades in arriving at the guilt of the accused when the same suffered major discrepancies along with the inconsistencies of the depositions of the eyewitnesses to that of the injured eyewitness’ We have perused the documentary and oral evidences on record and gone through the submissions of both the appellant State as well as the respondents. We shall now examine each and every contention in light of the arguments adduced before us in the Court. In our considered view the main issue in the case is whether the identity of the accused was properly established with the aid of the testimonies of the eyewitnesses and whether the Test Identification Parades were conducted properly. All the other evidences are secondary and need to be examined only if the accused can be linked to the crime. To decide the same we shall analyse the depositions of the eye There are five eye witnesses including the injured eye witness. We shall peruse their statements one by one. PW1 allegedly recognized two persons who shot at the deceased and the injured PW6 as A1 and A12 but his evidence suffers few infirmities. He stated that he first heard some shots and then some noise like bursting of firecrackers and saw the accused firing at PW6 when he was running towards the Police Chowky nearby. The major inconsistency is with respect to his deposition regarding the Test Identification Parade. He stated that in the Test Identification Parade held on 30.8.1995 at Arthur Road Prison he had identified four persons out of 10 12 persons standing in the row. According to the prosecution the Test Identification Parade was conducted by PW21on 30.9.1995. Even if it is presumed that the date was stated to be incorrect by mistake the fact remains that PW21 deposed that he conducted 2 Test Identification Parades on that day. In the first Parade he placed A1 and one more accused who died later and in the second he placed A3 and A4 for identification. At no point of time 4 accused were put together for identification for PW1 to identify out of the whole group. This contradiction shows that it is not clear as to whether he rightly identified the accused. Also he stated that in another parade held after almost a year he identified A12. That parade was conducted by PW187 SCC 697] wherein it was held “When an attack is made on the injured deceased by a mob in a crowded place and the eyewitnesses had little time to see the accused the substantive evidence should be sufficiently corroborated by a test identification parade held soon after the occurrence and any delay in holding the test identification parade may be held to be fatal to the prosecution case.” It is very clear that in the present case the incident of firing occurred in the circumstances wherein much time was not available for the eye witnesses to clearly see the accused. In such a situation it was of much more importance that the Test Identification Parades were to be conducted without any delay. The first Test Identification Parade was held by PW21 after about 1½ months of the incident. The second Test Identification Parade was conducted by PW18 after more than a year of the incident. Even if it is taken into account that A12 was arrested after a year and within one month thereafter the test Identification Parade was conducted still it is highly doubtful whether the eye witnesses could have remembered the faces of the accused after such a long period. Though the incident took place in broad daylight the time for which the eye witnesses could see the accused was not sufficient for them to observe the distinguishing features of the accused especially because there was a commotion created after the firing and everyone was running to shelter themselves from the firing In view of the discussion in the foregoing paragraphs we are of the considered view that the testimonies of the witnesses suffer various infirmities and contradictions and the Test Identification Parade was not conducted properly and was delayed. The High Court is therefore correct in giving the benefit of doubt to the accused as their identity had not been clearly established by the prosecution Thus in the light of the above discussion we find no grounds to interfere with the judgment passed by the High Court. The appeals are accordingly dismissed Mr. Mushtaq Ahmad AOR Hon ble Mr. Justice Pinaki Chandra Ghose pronounced the reportable judgment of the Bench comprising His Lordship and Hon ble Mr. Justice R.K. Agrawal. The appeals are dismissed in terms of the signed reportable Court Master (MADHU NARULA Court Master Signed reportable judgment is placed on the file

Summary: Test Identification parade must be conducted within reasonable time span from the commission of crime  The deceased was shot dead by two unknown assailants on 12.8.1995, at about 3.00 P.M in Ganesh festival pandal. PW-6 was also injured in the shooting. Allegedly, the said two assailants were escorted by three other persons. The deceased Rajendra Rajaram Gupta was taken to Hinduja Hospital immediately, where he was declared dead on arrival. The FIR came to be immediately lodged at 4:15 P.M. by one eyewitness Rajesh Tanaji Akre (PW-5), who happened to have seen the incident from the first floor gallery of his residential building which was abutting to the said Pandal.After investigation, charges were framed against 13 accused persons (Accused Nos.1 to 13) under Sections 302, 307, 120B read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) and Sections 25, 27, and 29 of the Arms Act, 1959. Accused Nos.2, 5, 6, 8, 10 and 13 had either died or were absconding during the trial. Hence, the trial proceeded against the remaining accused i.e. Accused Nos.1, 3, 4, 7, 9, 11 and 12.The Trial Court by its judgment and order dated 23.07.2003 convicted Accused Nos.1, 3, 4, 9 and 12 for offences punishable under Sections 302 and 307 read with Section 120-B of the IPC. 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. Original Accused Nos.7 and 11 were acquitted of all the charges. The High Court vide the impugned judgment acquitted all the accused of all the charges by overturning the judgment of the Trial Court.The State of Maharashtra has filed these appeals against the acquittal of Accused Nos.1, 3, 4, 9 and 12. ISSUE BEFORE THE COURT: Whether the testimonies of witnesses could be relied upon? RATIO OF THE COURT: Learned Additional Government Advocate appearing for the State of Maharashtra has inter alia reiterated that the judgment of the Trial Court is well reasoned and well considered. The learned counsel for the respondents have rebutted the submissions of the appellant by relying upon the judgment of the High Court pressing that it had gone deeper into the case that the prosecution could not bring home the charges levelled against the accused.The court found several discrepancies regarding the testimony of PW1. He stated that in the Test Identification Parade held on 30.8.1995, at Arthur Road Prison, he had identified four persons out of 10-12 persons standing in the row. According to the prosecution, the Test Identification Parade was conducted by PW21 (Special Executive Officer) on 30.9.1995. Even if it is presumed that the date was stated to be incorrect by mistake, the fact remains that PW21 deposed that he conducted 2 Test Identification Parades on that day.In the first Parade, he placed A1 and one more accused who died later and in the second, he placed A3 and A4 for identification. At no point of time, 4 accused were put together for identification for PW1 to identify out of the whole group. This contradiction showed that it was not clear as to whether he rightly identified the accused.Also, he stated that in another parade held after almost a year, he identified A12. The parade was conducted by PW18 (another Special Executive Officer). A12 was arrested by the first week of September, 1996 and thus the Test Identification Parade was conducted on 4.10.1996, but it was too large a gap for PW1 to have remembered his face. His statement regarding the forehead injury was also found false.PW5 also deposed that he had identified A1 and A12 in the Test Identification Parades conducted by PW21 and PW18, respectively. But it was not clear whether he could have witnessed the incident from the first floor as the setting up of the Pandal was completed and the work of putting tarpaulin over the Pandal was done and only the decoration of the frill was going on. He had also deposed before the Court that he does not remember the physical appearance of both the suspects seen by him on the date of incident.The court placed reliance upon Siddanki Ram Reddy v. State of Andhra Pradesh, [(2010) 7 SCC 697] it was held: “When an attack is made on the injured/deceased by a mob in a crowded place and the eyewitnesses had little time to see the accused, the substantive evidence should be sufficiently corroborated by a test identification parade held soon after the occurrence and any delay in holding the test identification parade may be held to be fatal to the prosecution case.”The court observed that the test identification parade must be held as soon as possible after the crime which was not the case in present case. Therefore, it was highly doubtful if the witnesses would remember the distinguished features of the accused persons after such a long time. Therefore, in court’s view the testimonies could not be relied upon since there were many contradictions in them. DECISION HELD BY THE COURT: The court held that the Test Identification Parade was not conducted properly and was delayed. The High Court was, therefore, correct in giving the benefit of doubt to the accused as their identity had not been clearly established by the prosecution.In the light of the above discussion, the court found no grounds to interfere with the judgment passed by the High Court. The appeals were, accordingly, dismissed.