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2000 DIGILAW 129 (BOM)

BALU SHRAVAN AHIRE v. STATE OF MAHARASHTRA

2000-02-29

P.V.KAKADE, VISHNU SAHAI

body2000
Judgment P. V. KAKADE, J. ( 1 ) SINCE all the three appeals, namely, criminal Appeal No. 98 of 1996, Criminal Appeal No. 93 of 1996 and Criminal Appeal No. 106 of 1996 arise out of the same set of facts and a common Judgment and Order dated 6th january, 1996 passed by the learned Additional Sessions judge, Thane, in Sessions Case No. 640 of 1994 are disposing them off by one judgment. The three appellants were convicted for the offence under section 302 read with 34 of the Indian Penal Code and were sentenced to imprisonment for life. They were further found guilty for the offence under section 201 read with 34 of the Indian Penal Code and were sentenced to suffer R. I. for two years and to pay a fine of Rs. 500/- each, in default to suffer further R. I. for three months. They were further convicted for offence under section 392 read with 397 of the Indian Penal Code. They were sentenced to suffer r. I. for seven years and to pay a fine of Rs. 1,000/- each, in default to suffer R. I. for one year under section 392 of the Indian Penal Code. They were separately sentenced to suffer R. I. for seven years and to pay a fine of Rs. 1,000/- each, in default to suffer R. I. for one year for the offence under section 397 of the Indian Penal Code. Their substantive sentences were directed to run concurrently. ( 2 ) THE facts giving rise to the case, in brief, are thus :- Witness Subhash Salve, an Advocate by profession at nasik, owned a white coloured Ambassador car bearing No. MTJ- 5598. He was personally using the car and whenever it was not required for his use, he used to give it on hire through an agency named Kohinoor Travels located in Nasik. Witness raju Lakade was working as a driver of the said car and he used to take the car to Kohinoor Travels office in search of passengers. As usual on 9th July 1994, at about 8. 00 a. m. , witness raju Lakade went to Kohinoor Travels with the car in order to get some customers. At about 4. Witness raju Lakade was working as a driver of the said car and he used to take the car to Kohinoor Travels office in search of passengers. As usual on 9th July 1994, at about 8. 00 a. m. , witness raju Lakade went to Kohinoor Travels with the car in order to get some customers. At about 4. 00 p. m. on that day, one ajay (deceased in this case), who was also a driver, came in the office of Kohinoor Travels and told the manager that he had some customers who wanted to hire a car for a local trip of Nasik. The manager of the travelling agency contracted witness Raju Lakade and told him to take the customers in his car. Both Ajay and Raju Lakade left at about 6. 00 p. m. to pick up the customers. Accordingly, Raju Lakade and deceased Ajay took the car to CIDCO area, Nasik and as per the direction of Ajay the car was taken in front of a house. Deceased Ajay went inside the house and after about half an hour returned with four persons and all of them sat in the car. Three strangers sat in the rear seat while the remaining stranger sat in the front portion of the car along with witness Raju and deceased Ajay. As per the instructions of the customers the car was taken to the Indira Nagar Zopadpatti where it was stopped in front of one hut and all the customers and deceased Ajay went in the said hut and came after some time. Thereafter the car was again taken to CIDCO area from where the customers were picked up earlier. Then two of the customers went inside the house and brought bottles of soft drink as well as liquor and started their onward journey. One of the customers told witness Raju to take them to Jawhar, a nearby taluka town, to meet his relative. Accordingly, witness Raju took the car by Satpur Road and from there he took on trambak Road in order to go to Jawhar. After travelling for some distance the customers told him to stop the car near a hotel, made some purchases and thereafter told him to start the onward journey. Accordingly, witness Raju took the car by Satpur Road and from there he took on trambak Road in order to go to Jawhar. After travelling for some distance the customers told him to stop the car near a hotel, made some purchases and thereafter told him to start the onward journey. When the car approached a bridge, the witness Raju was asked to stop the car and two of the customers got down and went under the bridge to answer the nature s call. They returned after a while and thereafter they proceeded further. At about 10. 30 p. m. they came to village Murchundi where witness Raju was asked to stop the car. They all got down from the car. Witness Raju went in the hotel to have tea while the remaining persons waited outside. One of the customers at that time told Raju that it was too late to go to the relative s place and, therefore, they should go back to nasik. Return journey began and they travelled for about 20-25 minutes. It was about midnight when the car came near a bridge, one customer told witness Raju to stop the car. Suddenly one of the customers sitting on the rear seat put a rope around witness Raju s neck and confined him to his driver s seat and snatched away thekeys of the car. Then they took deceased Ajay out of the car and started assaulting him with fist blows and kicks. Deceased Ajay was also assaulted with iron bars and wooden sticks on the head and backside. Ajay sustained grievous injuries and fell on the ground. Thereafter the strangers caught the legs of deceased Ajay and dragged him to the side of the road and threw him down in a ditch. Then they went to witness Raju and started assaulting him. As good luck of Raju would have it, one goods truck came from the opposite direction and the headlight of the truck fell on witness Raju. The strangers seeing the truck coming from the opposite direction ran towards the car and drove away with the car leaving behind the injured witness Raju, who was lying unconscious. Witness Raju regained consciousness after some time and tried to stop vehicles passing by, but no vehicles stopped when they saw his clothes were soaked in blood. The strangers seeing the truck coming from the opposite direction ran towards the car and drove away with the car leaving behind the injured witness Raju, who was lying unconscious. Witness Raju regained consciousness after some time and tried to stop vehicles passing by, but no vehicles stopped when they saw his clothes were soaked in blood. He walked on foot upto Peth Naka on Nasik Road where there was a farm house. Witness Raju went to the farm house and woke up the people from that house. After initial reluctance, they took him in and then arranged for his journey, to Nasik early in the morning. The bus driver and conductor took him to trambak Police Station wherein he narrated the incident to the police. ( 3 ) TRAMBAK Police took witness Raju in their vehicle and proceeded to the place of incident, but they told him that the spot where the incident had taken place was not within their jurisdiction and it was within the jurisdiction of mokhada Police Station. They also arranged witness Raju s journey to Mokhada Police Station where Police Officer juikar sent witness Raju to hospital for medical treatment and then recorded his F. I. R. (Ex. 15 ). ( 4 ) OFFENCES, as noted earlier, were recorded at Mokhada police Station vide C. R. No. 23/1994 and the investigating machinery swung into action. Spot panchanama was prepared wherefrom incriminating articles were seized. ( 5 ) THE body of deceased Ajay was sent for post-mortem examination at Rural Hospital, Mokhada. The autopsy revealed as many as eight injuries on the body of Ajay which were contused lacerated wounds on various parts of the body. The cause of death was intra cranial massive haemorrhage due to fracture to total frontal bone and extra dural haematoma and multiple contused lacerated wounds. The post-mortem papers were duly received by the Investigating Officer, which are part of the record. ( 6 ) IN the meantime, the Investigating Officer, A. P. I. Juikar arrested accused No. 1 Sunil Bhole on 11th July, 1994 under panchanama (Ex. 18 ). Similarly accused no. 2 Balu ahire came to be arrested on 14th July 1994 under arrest panchanama (Ex. 54 ). Accused No. 3 Raju Gosavi came to be arrested on 18th July, 1994 under panchanama (Ex. 19 ). 18 ). Similarly accused no. 2 Balu ahire came to be arrested on 14th July 1994 under arrest panchanama (Ex. 54 ). Accused No. 3 Raju Gosavi came to be arrested on 18th July, 1994 under panchanama (Ex. 19 ). ( 7 ) ON 11th July 1994 while Accused No. 1 Sunil Bhole was in police custody, he volunteered to show the place where the stolen Ambassador car was parked. Accordingly, memorandum panchanamas (Ex. 24 and 25) were prepared and white Ambassador car stolen by the culprits was seized along with the blood stained shirt under panchanama. Similarly, at the instance of accused No. 1 Sunil Bhole, the seats and stepni of the car were recovered on 13th July 1994 and were seized under panchanama (Ex. 28 ). Accused No. 2 Balu Ahire came to be arrested on 14th july, 1994. He apparently produced the blood stained clothes worn by him at the time of the incident and those were seized by the police under panchanama (Ex. 30 ). Accused No. 3 Raju Gosavi came to be arrested on 18th july 1994 and while in police custody he volunteered to show the place where weapons of offences, i. e. Iron bar and wooden stick were hidden by them. Thereafter memorandum panchanama (Ex. 49) was made. He then led the police to the place and produced the iron bar and wooden stick as well as two registration number plates of vehicles and those plates were seized under panchanama (Ex. 50 ). In the course of investigation two identification parades were held by the investigating machinery. The first parade was held on 23rd November 1994 by witness Tahasildar ghode wherein two witnesses viz. , Salve and one Rajaram Kadu are said to have identified the appellants. Subsequently tahasildar Ghode held the second identification parade on direction from J. M. F. C. Jawhar and it was held on 22nd december 1994 wherein witness Raju Lakade identified all the three appellants in the course of the parade to be the persons who had committed the crime. Various articles seized in the course of the investigation were sent to the Chemical Analyser for examination and the Chemical Analyser s reports were received in due course and are part of the record. Various articles seized in the course of the investigation were sent to the Chemical Analyser for examination and the Chemical Analyser s reports were received in due course and are part of the record. On completion of the investigation, the charge-sheet was sent to the Court against the said three appellants while one more accused was shown as absconding. ( 8 ) THE case was committed to the Court of Sessions in usual manner, where the appellants were charged on a number of counts. They pleaded not guilty to the charges framed against them and claimed to be tried. Their defence was of denial. The learned Trial Judge proceeded to decide the case on merits. He relied upon the evidence of P. W. 1 complainant raju Lakade, whose testimony found support by the evidence of identification parade as well as recovery of articles at the instance of the appellants in the course of investigation. On the basis of this evidence the appellants came to be convicted and sentenced forthe said offences in the aforesaid manner. Hence, the appeal. ( 9 ) WE have heard the learned counsel for the Appellants as well as the learned Public Prosecutor at length. Having considered all the relevant evidence before us, we have come to the conclusion that the prosecution evidence on record is too inadequate to bring home the guilt of the appellants and, therefore, we have no option but to set aside the judgment of conviction of the Trial Court. ( 10 ) AT the outset, it may be noted that it is a case of two-fold evidence namely (i) identification parade; and (ii) recovery at the instance of the appellants of the several objects which connected them with the offence, as contemplated under section 27 of the Evidence Act. In order to appreciate the evidence in proper perspective, it would be necessary for us to scrutinise the evidence of complainant Raju, who was injured in the incident, and is star witness for the prosecution. According to Raju, on 9th July, 1994 he along with deceased Ajay, commenced the ill-fated journey of Jawhar at about 6-00 p. m. Admittedly complainant Raju was not knowing his four customers who had hired the car. Those were acquaintances of deceased Ajay. After some journey within the city, they proceeded to Jawhar via Satpur and on Trambak Road at which time it was already dark. Those were acquaintances of deceased Ajay. After some journey within the city, they proceeded to Jawhar via Satpur and on Trambak Road at which time it was already dark. It is pertinent to note that complainant Raju was driving the vehicle all the time and, therefore, it was quite natural for him to concentrate totally on the driving during evening and night time than on his customers, specially when he was accompanied by his friend deceased Ajay, who was looking after the customers. Therefore, it was practically impossible for complainant raju to closely observe the faces of the customers and give much attention to the talk amongst them. This aspect would render his testimony difficult to accept when he stated during the trial that the accused before the Court were the same, who travelled in his vehicle. In fact the contents of f. I. R. do show that he has referred to the said customers as total strangers and has named only one person as Sunil, who is said to be absconding accused. ( 11 ) IN view of this state of affairs relating to the testimony of complainant Raju, the evidence of identification parade becomes all the more important. We have critically perused the evidence of identification parade along with testimony of witness Ghode, Tahasildar and the Executive Magistrate at Mokhada, who conducted the two parades. We have also perused the documents relating to the said parades; Ex. 43 is the set of the document of the first identification parade dated 23rd November 1994, whereas Ex. 44 is the document of the second identification parade dated 22nd December, 1994. So far as the first identification parade dated 23rd november 1994 is concerned, witness Salave and one person by name Kadu were sent as the witnesses to identify the appellants. Scrutiny of the evidence on record does not explain at all as to why this identification parade was held when there is nothing before us to show that Advocate Salave had occasion to observe the appellants at any time. Similar was the case with one Kadu who was second witness in the identification parade. Second identification parade dated 22nd December 1994 was held wherein witness Raju Lakade was the identifying witness. According to the record, witness Raju identified all the appellants during the course of the said parade. Similar was the case with one Kadu who was second witness in the identification parade. Second identification parade dated 22nd December 1994 was held wherein witness Raju Lakade was the identifying witness. According to the record, witness Raju identified all the appellants during the course of the said parade. This aspect appears to have weighed heavily with the learned trial Judge when he relied upon this part of the evidence. ( 12 ) WE have given our anxious consideration to this piece of evidence of identification parade held by Executive magistrate, Mokhada and have come to the conclusion that this important piece of evidence suffers from more than one serious infirmity. First of all we would like to mention that the second identification parade dated 22nd December, 1994 wherein witness Raju is said to have identified the appellants, has been delayed by more than five months, and no explanation whatsoever has come forth from the prosecution on record. Evidently the appellants were arrested before 20th July 1994 and were available for identification parade much earlier. It is not the case of the prosecution that witness Raju was not available to participate in the parade, and still, the delay of more than five months has occurred, which in itself becomes fatal for the acceptance of this evidence. Along with unexplained inordinate delay in holding the parade, there is another material infirmity in the said relevant evidence. Time and again, the Apex Court has laid down the importance of adherence to the strict procedure in holding identification parades. In the case of Ramkrishan vs. Bombay State, reported in AIR 1955 SC pg. 104, it has been held that statements made before police officers by witnesses at the time of identification parades are statements to the police, and as such are hit by section 162 of the Code of Criminal Procedure. In this case, possibility of presence of police is palpably felt due to the fact that the police station and police lockup are located in the same building. Therefore, in view of this ruling, it becomes necessary that such parades are not conducted in the presence of police officers. Thus the only alternative available was to take the help of the independent panch witnesses. Therefore, in view of this ruling, it becomes necessary that such parades are not conducted in the presence of police officers. Thus the only alternative available was to take the help of the independent panch witnesses. The State Government also has issued circulars in this regard from time to time, and our High Court has issued clear cut instructions in Criminal Manual (Chapter 1 para 16) regarding the manner andprocedure to be followed while conducting the identification parades. It is needless to mention that the object of identification parade is to make sure that the ability of the witness to recognise the suspect has been fairly and adequately tested. Further, it should be fair, and seem to be fair, and every precaution must be taken to exclude any suspicion of unfairness or risk of erroneous identification through the witnesses attention being directed specially to the suspected persons instead of equally to all the persons to be paraded. The procedure laid down clearly enjoins that the parade must be held in the presence of two independent responsible persons who, in fact, should play a major role in the conduct of the parade under the supervision of the Executive magistrate. In this case before us, Executive Magistrate ghode has not called the panchas at all, which makes the evidence of identification suspect. This position further aggravates against the prosecution when the evidence on record shows that the place wherein the identification parades were held, was part and parcel of the building wherein police station and jail are located. This close proximity of police station and police lock up to the place where identification parade was held also shows that possibility of showing the appellants to the witnesses before the parade cannot be ruled out before the parade. ( 13 ) IN view of these material infirmities relating to the evidence of identification parade, we are unable to put reliance thereon in order to bring home the guilt and hence we think it fit to discard evidence of identification in toto. ( 14 ) ONCE we reach the conclusion that the evidence of identification is of no use, what remains is the evidence relating to the recovery of various articles at the instance of the appellants. In such evidence also there are material discrepancies which cast doubt upon the veracity of the relevant evidence. ( 14 ) ONCE we reach the conclusion that the evidence of identification is of no use, what remains is the evidence relating to the recovery of various articles at the instance of the appellants. In such evidence also there are material discrepancies which cast doubt upon the veracity of the relevant evidence. According to the prosecution case Accused No. 1 Sunil bhole volunteered to show the place where the car involved was hidden and memorandum thereof was prepared at the police station between 5-45 p. m. and 6-05 p. m. vide Ex. 24. Thereafter they proceeded to the spot and car was found on that spot and panchanama thereof was made vide Ex. 25. It was between 6-10 p. m. and 7-05 p. m. At the same time blood stained shirt of Accused No. 1 was seized by the police at his pointing out vide panchanama (Ex. 26 ). The said panchanama was made between 5-45 p. m. and 5-55 p. m. Now, therefore, if memorandum (Ex. 24) was made between 5-45 p. m. and 6-05 p. m. , then panchanama (Ex. 26) could not have been made at the same time at all. ( 15 ) WE have also observed that in other recoveries at the instance of the appellants, there is uniform gap of five minutes, between the preparation of memorandum and recovery panchanama on the spot. The evidence on record shows that after memorandums were made, in every case, the appellants, panchas and police have travelled some distance in police jeep to go to the spot shown by the appellants, and still the time shown for such travel uniformly was that of five minutes, which does not appeal to our reason. Apart from it we find that some of the recoveries have not been put to some of the appellants in their statements under section 313 of Criminal Procedure Code. Be that as it may, the fact remains that the evidence of recovery of various articles of the instance of the appellants, by itself, would not be sufficient to saddle the appellants with the criminal liability with which they are charged. At the most, such evidence would show that the prosecution case may be true. But no conviction can be founded. Between may be true and must be true there is a long distance to travel. At the most, such evidence would show that the prosecution case may be true. But no conviction can be founded. Between may be true and must be true there is a long distance to travel. We cannot say on the basis of discoveries that the prosecution case must be true. ( 16 ) IN the result, we have come to the conclusion that the evidence of identification as well as recovery of articles under section 27 of the Evidence Act are not established beyond reasonable doubt and the appellants cannot be convicted on shaky and unreliable evidence. Therefore, we have no option but to allow the appeals by giving benefit of doubt to the appellants. ( 17 ) HENCE, the appeals are hereby allowed. The convictions and sentences passed against the appellants on various counts, by the Additional Sessions Judge, Thane, in sessions Case No. 640 of 1994 are hereby set aside. The appellants are in jail and shall be set at liberty forthwith unless required in any other case, fine amount, if paid, be refunded. Appeals allowed.