It may be mentioned that in the case of Pramod Mandal v/s.
State of Bihar (2204) 13 SCC 150, the Apex Court has held that “ It is neither possible nor prudent to lay down any invariable rule as to the period within which a test identification parade must be held, or the number of witnesses who must correctly identify the accused, to sustain his conviction. These matters must be left to the courts of fact to decide in the facts and circumstances of each case. If a rule is laid down prescribing a period within which the test identification parade must be held, it would only benefit the professional criminals in whose cases the arrests are delayed as the police have no clear clue about their identity, they being persons unknown to the victims. They, therefore, have only to avoid their arrest for the prescribed period to avoid conviction. Similarly, there may be offences which by their very
nature may be witnessed by a single witness, such as rape. The
offender may be unknown to the victim and the case depends solely on the identification by the victim, who is otherwise found to be truthful and reliable. What justification can be pleaded to contend that such cases must necessarily result in acquittal because of there being only one identifying witness ? Prudence therefore demands that these matters must be left to the wisdom of the courts of fact which must consider all aspects of the matter in the light of the evidence on record before pronouncing upon the acceptability or rejection of such identification. ”
14. These principles have been reiterated by the Apex Court in the case of Raja v/s. State by the Inspector of Police with Govindaraj and Ors. v/s. State by the Inspector of Police, AIR 2020 SC 254. The Apex court has held that there is no hard and fast rule about the period within which the Test Identification Parade must be held from the date of arrest of the accused. In the instant case, though there is delay of about one month in conducting the Test Identification Prade, the records reveal that the Investigating Officer (PW22) was not at all cross examined on this aspect and no motive was imputed to the prosecution
for the delay in holding the TI parade. Hence, the delay in holding the TI parade is not per se fatal to the case of the prosecution.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 938 OF 2015
Harqbahaddur Logbahaddur Bhandari @ Raju Vs The State of Maharashtra
CORAM: SMT. ANUJA PRABHUDESSAI, J.
DATED : 06th SEPTEMBER, 2021.
This is an Appeal under Section 374(2) of Cr.P.C. directed against
the judgment dated 03/09/2015 passed by The Special Judge (Under
MCOC Act, 1999), Gr. Bombay in MCOC Special Case No.05/2011 @
12/2012.
2. By the impugned judgment, the learned Special Judge has held
the Appellant, who was arrayed before the trial Court as accused no.1,
guilty of offences under Sections 120-B, 307, 450, 506(ii) r/w. 120-B of
the Indian Penal Code and Section 27(1) of the Indian Arms Act, 1959.
The Appellant has been sentenced to undergo rigorous imprisonment
for 10 years with fine of Rs.10,000/- in default to undergo simple
imprisonment for 03 years for offences under Sections 307, 450, 120-B
of the Indian Penal Code and rigorous imprisonment for 05 years with
fine of Rs.5,000/- in default to suffer simple imprisonment for 01 year
in respect of offences under Sections 506(ii) r/w. 120-B of the Indian
Penal Code and Section 27(1) of the Indian Arms Act, 1959. All the
sentences are ordered to run concurrently.
3. The case of the prosecution in brief is that on 30/06/2010, three
unknown persons entered the office of Sagar Builders, with whom the
first informant (PW10 – Sumit Sonawane) was employed as Sales
Executive. One of the persons kept a folder on the teapoy and
suddenly removed a pistol and pointed at the first informant PW10 –
Sumit Sonawane and fired at him. It is stated that the said person also
pointed the pistol towards Hasan Gokulsab Chaudhari - PW11 and
thereafter, ran away from the office. Sometime later, the police came
to the place of the offence and took PW10 to Cooper Hospital. He was
given first aid. PW10 thereafter went to the D.N. Nagar Police Station
and lodged the first information report (Exhibit – 131). PW15- Maruti
Awhad, Senior Police Inspector of D.N. Nagar Police Station visited the
scene of the offence along with API - Desai and other police staff. API –
Desai conducted the scene of offence panchanama and seized the bullet
and other incriminating material in presence of panchas. API – Desai
recorded the statements of some of the witnesses under the supervision
of PW15 – Maruti Awhad. PW15 took over further investigation on
01/07/2010. He requested the sketch artist PW16 to draw the sketch
of the suspects as per the description given by PW11-Chaudhari.
4. The Appellant and the co-accused were arrested in
C.R.No.83/2010 registered at Oshiwara Police Station. A rifle and
some live cartridges were recovered from the possession of the
Appellant. In the course of the investigation of the said crime, it was
revealed that the Appellant and the co-accused were also involved in
C.R.No.198/2010 registered at D.N. Nagar Police Station and were
informed accordingly.
5. PW22 – Satish, API, Anti Extortion Cell took the Appellant in
custody in the present crime on 06/01/2011. It was revealed that the
Appellant and the other co-accused were the members of an organized
crime syndicate headed by Ravi Pujari. Hence, the provisions of
Maharashtra Control of Organized Crime (MCOC) Act, 1999 were also
invoked after complying with all the procedural requirements.
6. PW4 – Suvidha Sawant, Nayab Tahasildar was requested to
conduct Test Identification (TI) Parade. Accordingly, she conducted the
TI parade on 05/02/2011 wherein PW10 and PW11 allegedly
identified the Appellant. The incriminating material recovered from
the scene of offence was sent to CFSL, Pune for examination. Upon
conclusion of the investigation, charge sheet was filed against the
Appellant and two others for offences under Sections 450, 452, 387,
307, 506(ii), 120-B r/w. 34 of the Indian Penal Code and Section 27 of
the Indian Arms Act and Section 3(1)(ii), 3(2) and 3(4) of the MCOC
Act, 1999.
7. The charge was framed against the Appellant and the other coaccused.
They pleaded not guilty and claimed to be tried. The
prosecution in support of its case, examined 24 witnesses. The
statement of the Appellant and the other co-accused was recorded
under Section 313 of the Code of Criminal Procedure. The Appellant
and the other co-accused denied their involvement in the said crime.
Upon considering the oral and documentary evidence on record, the
learned Judge acquitted the other co-accused. The learned Judge also
acquitted the Appellant of offences under Sections 452, 387 of the
Indian Penal Code and Section 3(1)(ii), 3(2) and 3(4) of the MCOC
Act, 1999. The learned Judge however held the Appellant guilty of
offences under Section 307, 450, 506(2) r/w. 120(B) of the Indian
Penal Code and Section 27 of the Indian Arms Act and convicted and
sentenced him as stated above. Being aggrieved by the conviction and
sentence, the Appellant has preferred this Appeal.
8. Heard Mr. Nitin Sejpal, learned counsel for the Appellant and Mr.
S.V. Gavand, learned APP for the State. I have perused the records and
considered the submissions advanced by the learned counsels for the
respective parties.
9. The evidence on record indicates that PW10 – Sumit Sonawane
was working as a Sales Executive whereas PW11- Hasan Gokulsab
Chaudhari was working as Site Supervisor for Codcon Builders having
office at A Wing, Indian Ocean Building, 1st floor, Andheri (W),
Mumbai. PW10 and PW11 have deposed that on 30/06/2010, at about
01:30 p.m., while they were in the office, two unknown persons
entered the office. One of the persons was carrying a folder. He kept
the said folder on the teapoy. Immediately thereafter, the said person
removed a firearm and fired at PW10 – Sumit Sonawane and then
pointed the firearm at PW11. PW10 and PW11 shouted for help but
the said unknown persons ran away from the spot.
10. The evidence of PW10 and PW11 indicates that the assailant and
the other person who had accompanied him, were not known to them.
PW10 had given description of the assailant as a person with long hair,
medium built and having shallow complexion. The other person was
stated to be thin built with height of 5’5’’. PW11 also claims that the
police had called a sketch artist (PW16) and that he had drawn a
sketch of the suspects as per the description given by him.
11. The evidence on record reveals that the Appellant was arrested
on 05/09/2010 in C.R.No.83/2010 registered at Oshiwara Police
Station. PW22 – Satish, API, Anti Extortion Cell took him into custody
in the present crime on 06/01/2011. On 28/01/2011, PW22
requested PW4 – Suvidha Satish Sawant, Nayab Tahasildar to conduct
the Test Identification Parade. She conducted the TI parade on
05/02/2011. The evidence of PW4 and the memorandum of TI parade
at Exhibit – 67 collectively indicates that PW10 and PW11 had
allegedly identified the Appellant in the TI parade.
12. Mr. Nitin Sejpal, learned counsel for the Appellant submits that
there is an inordinate delay in conducting the TI parade. Per contra, Mr.
S.V. Gavand, learned APP states that the Appellant was taken into
custody in the present crime only on 06/01/2011. He, therefore,
submits that there is no inordinate delay in conducting the TI parade.
13. It may be mentioned that in the case of Pramod Mandal v/s.
State of Bihar (2204) 13 SCC 150, the Apex Court has held that “ It is
neither possible nor prudent to lay down any invariable rule as to the
period within which a test identification parade must be held, or the
number of witnesses who must correctly identify the accused, to
sustain his conviction. These matters must be left to the courts of fact
to decide in the facts and circumstances of each case. If a rule is laid
down prescribing a period within which the test identification parade
must be held, it would only benefit the professional criminals in whose
cases the arrests are delayed as the police have no clear clue about
their identity, they being persons unknown to the victims. They,
therefore, have only to avoid their arrest for the prescribed period to
avoid conviction. Similarly, there may be offences which by their very
nature may be witnessed by a single witness, such as rape. The
offender may be unknown to the victim and the case depends solely on
the identification by the victim, who is otherwise found to be truthful
and reliable. What justification can be pleaded to contend that such
cases must necessarily result in acquittal because of there being only
one identifying witness ? Prudence therefore demands that these
matters must be left to the wisdom of the courts of fact which must
consider all aspects of the matter in the light of the evidence on record
before pronouncing upon the acceptability or rejection of such
identification. ”
14. These principles have been reiterated by the Apex Court in the
case of Raja v/s. State by the Inspector of Police with Govindaraj and
Ors. v/s. State by the Inspector of Police, AIR 2020 SC 254. The Apex
court has held that there is no hard and fast rule about the period
within which the Test Identification Parade must be held from the date
of arrest of the accused. In the instant case, though there is delay of
about one month in conducting the Test Identification Prade, the
records reveal that the Investigating Officer (PW22) was not at all cross
examined on this aspect and no motive was imputed to the prosecution
for the delay in holding the TI parade. Hence, the delay in holding the
TI parade is not per se fatal to the case of the prosecution.
15. Mr. Nitin Sejpal, learned counsel for the Appellant further
contends that the TI parade was conducted in total breach of the
guidelines laid down in the Criminal Manual of this Court. He
therefore contends that the learned Judge has grossly erred in relying
upon the evidence in respect of identification of the Appellant by PW10
and PW11 by the TI parade conducted by PW4.
16. It is well settled that the evidence of Test Identification Parade is
not substantive evidence. The object of conducting Test Identification Parade is to enable the witness to identify the suspect who was previously not known to him. The Criminal Manual of this High Court lays down the guidelines and prescribes the procedure in holding the
Identification Parade. These guidelines include : (i) identification
parade should be held and every precaution must be taken to exclude
any suspicion of unfairness or risk of erroneous identification through
the witnesses ; (ii) the witnesses should be prevented from seeing the
suspect before he is paraded with the other persons, and witnesses who
have previously seen a photograph or description of the suspect should
not be led in identifying the suspect ; (iii) the suspect should be placed
among the persons who are as far as possible of the same age, height,
general appearance and position in life.
17. The procedure for holding Identification Parade provides, inter
alia, that : (i) the Executive Magistrate should first acquaint himself
very briefly, with the facts of the case and find out who is to be put in
parade for identification and who are the witnesses to be called for
identification, (ii) the Executive Magistrate should satisfy himself that
the two independent respectable persons arranged for by the police are
infact independent and fairly intelligent persons and should acquaint
them briefly with the facts of the case, (iii) the memorandum should
include (a) the names, ages, occupations and the full addresses of the
two respectable persons, (b) the names and the approximate ages of
the persons standing in the parade, mentioning clearly, one below the
other, in numerical order, their positions in the parade, (iv) the fact
that no person, other than those in the parade and the two respectable
persons were allowed to remain in the room and that all police officers
and constables were asked to withdraw, (v) After the memorandum
is completed, the Executive Magistrate should make an endorsement at
the end certifying that identification was conducted by him personally
with the help of the two respectable witnesses whose names should be
specified in the endorsement and further certify that their signatures
have been obtained in what transpired in their presence ; (vi) the
memorandum should also have an endorsement of the two respectable
persons certifying that they have read the memorandum or that it was
explained to them or that it depicts the correct state of affair as stated
in the memorandum and the Executive Magistrate is required to obtain
signatures of the two respectable persons with whose help he held the
Identification Parade.
18. It may be mentioned here that the Division Bench of this Court in
Mohammed Harshad Shaukat Ali v/s. State of Maharashtra 1998 Bom
CR (Cri) 352, has referred to the previous decisions in Sanjay Dagdu
Jadhav v/s. The State of Maharashtra 1997 All M.R.(CrM) 197, Vilas
Vasantrao Patil v/s. The State of Maharashtra, 1996 Cri.L.J. 1854 and
Ganesh Bhagwati Pandian v/s. State of Maharashtra 1985 (1) Cri.L.J.
191, has reiterated that instructions contained in the Criminal Manual
issued by the High Court for conducting Identification parade are not
statutory but have been consistently followed to ensure a fair and
unassailable identification parade. While rejecting the contention of
the prosecution that breach of guidelines of the High Court Manual is
merely an irregularity, the Division Bench reiterated that unless
guidelines issued by the Manual are scrupulously followed, there is
likelihood of committing serious errors i.e., risk of implicating innocent
person.
19. In the instant case, the evidence of PW4 reveals that the police
had called the two independent respectable persons. The evidence of
PW4 does not indicate that she had briefed them about the facts of the
case. There is also nothing on record to indicate that she had ascertain
that the two persons brought by the police were in fact independent
persons. As stated earlier, the Test Identification Parade was conducted
about a month after the arrest of the Appellant in this crime. PW10 has
deposed that Investigating Officer had called them to the Police Station
to identify the suspects arrested in this crime. It was therefore
incumbent upon PW10 to rule out the possibility of the identifying
witnesses having an opportunity to see the Appellant prior to the Test
Identification Parade. PW4 has admitted in her cross examination that
she had not asked the witnesses whether the police had shown them
the photographs of the accused. She claims that she had asked the
said question when the witnesses were instructed to sit in the closed
room. This is implausible in view of the admission of PW4 that prior to
commencement of the parade, she had not gone to the room where the
witnesses were made to sit. It is thus evident that PW4 had not taken
necessary precautions to ensure that the identifying witnesses had no
opportunity to see the Appellant or his photograph before conducting
the TI parade.
20. The evidence of PW4 also does not indicate that the dummies
were of similar age with similar physical appearance, as the person to
be identified. The memorandum also does not disclose the names and
other details of the persons who were placed in the parade along with
the Appellant. PW4 and the two respectable persons have also not
made endorsements at the foot of the memorandum of the Test
Identification Parade. It is thus evident that the Test Identification
Parade is in breach of the guidelines and procedure prescribed in the
Criminal Manual. Hence, the identification of this Appellant in the Test
Identification Parade has no evidentiary value.
21. It is also the case of the prosecution that PW10 and PW11 had
given the description of the assailant and that PW16 had prepared a
sketch of the assailant based on the description given by them. No
such sketch has been placed on record and there is no evidence to
indicate that the description as given in the first information report
tallies with the description given by PW10 and PW11. It is also
pertinent to note that the evidence of PW4 & memorandum of TI
parade does not indicate that the identifying witnesses had specified
whether the Appellant was the person who had come with the firearm
and shot at PW10 or whether he was the person who had accompanied
the main assailant. Such statement was made for the first time while
identifying the Appellant in Court. It is to be noted that the alleged
incident had occurred in the year 2010. The evidence of PW10 and
PW11 was recorded in the month of May, 2015. The Appellant was not
previously known to the witnesses and they have identified him in the
Court almost 05 years after the incident. The evidence of PW10 and
PW11 indicates that the entire incident had lasted for about a minute
and the witnesses only had a fleeting glance of the assailant. The
evidence of PW10 also indicates that after he was shot, he went
completely blank and sat on the chair. Under such circumstances, it is
difficult to believe that these witnesses who were shocked and
traumatized by the incident, would notice the features or facial
expression of the assailant within such a short span of time. Hence, it
would be extremely risky to place implicit reliance on such
identification after a long lapse of time.
22. It is the case of the prosecution that on the date of the arrest in
C.R. No.83/2010 registered at Oshiwara Police Station, the Appellant
was found in possession of a rifle and some live cartridges and that the
same were seized under panchanama. There is no evidence to prove
that the bullet which was allegedly recovered from the scene of the
offence was fired from the said revolver. Thus, there is no evidence to prove that the said rifle was used by the Appellant as a weapon of
offence.
23. Having considered the entire evidence on record, in my
considered view, the prosecution has failed to establish the guilt of the
Appellant beyond reasonable doubt. Hence, the conviction and
sentence cannot be sustained. Resultantly, the impugned judgment
dated 03/09/2015 passed by The Special Judge (under MCOC Act,
1999), Gr. Bombay in MCOC Special Case No.05/2011 @ 12/2012 is
set-aside. The conviction and sentence of the Appellant for offences
under Sections 120-B, 307, 450, 506(ii) r/w. 120-B of the Indian Penal
Code and Section 27(1) of the Indian Arms Act, 1959 is hereby setaside.
The Appellant is acquitted in respect of the said offences. Bail
bonds stand discharged. Fine amount, if paid, be refunded to the
Appellant.
(SMT. ANUJA PRABHUDESSAI, J.)
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