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2008 DIGILAW 1089 (BOM)

Ankush Bansi Wagh v. State of Maharashtra

2008-07-31

B.R.GAVAI

body2008
JUDGMENT : 1. By way of present appeal, the appellants have challenged the judgment and order dated 2nd March 2006 passed by the learned IInd Ad hoc Additional Sessions Judge, Aurangabad, in Sessions Case No. 76 of 2005, thereby convicting the present appellants for the offence punishable under Section 395 of the Indian Penal Code and sentencing each of them to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 1,000/- each, in default, to suffer further rigorous imprisonment for six months. 2. The prosecution case, in nutshell, is as under :- (a) Bhausaheb Kadam (PW 2) was residing in his farm house in Mangrul Shiwar along with his family members. It is alleged that on 9th December 2004, when he was sleeping in his house, at around 1 a.m., somebody knocked the door of his house asking him to open the door. Bhausaheb (PW 2) under the impression that his neighbours might have come, opened the door and found 6 to 7 dacoits armed with sticks, chain, knives, Gupties, sickles. The said persons stormed into his house and threatened him to hand over the money and belongings. It is further prosecution case, that 7 to 8 persons were standing outside the door. It is alleged that on refusal to pay the money by Bhausaheb (PW 2), one of the dacoits dealt a stick blow on his wrist and he was compelled to sit in one corner of his house. The dacoits thereupon made search of house of Bhausaheb. One of them snatched gold ear tops and finger rings of legs of his wife. It is alleged that some of the dacoits had tied their shirts to their waist and some of them had tied their shirts to their mouths using them as face covers. (b) It is the prosecution case, that before committing dacoity in the house of Bhausaheb, accused had also committed dacoity in the house of Kautikrao Agare (PW 12), Yamaji Bhosale (PW 7) and Tukaram Shejul (PW 13). The victims in the dacoity had sent message to the Police and Police party arrived in the village. It is alleged that when the dacoits came to know about arrival of the Police, they started to attack Police party. It is further prosecution case, that there was darkness as the thieves had broken electric bulbs. The victims in the dacoity had sent message to the Police and Police party arrived in the village. It is alleged that when the dacoits came to know about arrival of the Police, they started to attack Police party. It is further prosecution case, that there was darkness as the thieves had broken electric bulbs. A free fight took place between the villages and Police on the one hand and dacoits on the other hand. However, taking advantage of the dark, the dacoits escaped and fled away. It was noticed that one villager, namely, Bhausaheb Bhosale and one Police Official, namely, Dhas, were injured and one thief was also lying injured. The Police took all of them to Ghati Hospital, Aurangabad, for medical treatment. The injured thief, namely, Sanjay, however died in the course of treatment. (c) Bhausaheb (PW 2) lodged report at Police Station, Karmad, early in the morning at 2.30 a.m. Accordingly, Crime No. I-14/2004 came to be registered initially for the offences punishable under Sections 395 and 397 of the Indian Penal code and later on under Section 302 of the Indian Penal Code. (d) The Investigating Officer first went to the hospital where one of the thieves was taking treatment. However, the said thief was found to be dead. On 14th December 2004 the deceased was identified as Sanjay Rupchand Gaikwad. During the course of investigation, six accused, namely, Baban, Sanjay, Ankush, Bharat, Kashinath and Sarjerao were arrested. On the memorandum of accused Kashinath, stolen articles were recovered from the goldsmith of Isarwadi. It is further prosecution case, that on the memorandum of accused Sarjerao, the iron bar used in the offence was also recovered. Similarly, on the memorandum of accused Bharat, Gupti used in the offence and cash amount of Rs. 1640/- along with clothes were also seized. Subsequently, four more accused, namely, Sanjay Erande, Subhash More, Lakhan More and Giridhar Sonone were also arrested. It is the prosecution case, that on memorandum of accused Sarjerao, golden ornaments were seized from the goldsmith of village Paithan. Subsequently, three more accused, namely, Jagannath More, Vishnu More and Ramesh Gaikwad were also arrested. (e) On 21st December 2004, the witnesses and victims of the dacoity identified stolen property. On a memorandum of accused Jagannath, cash of Rs. 640/- came to be seized. Subsequently, three more accused, namely, Jagannath More, Vishnu More and Ramesh Gaikwad were also arrested. (e) On 21st December 2004, the witnesses and victims of the dacoity identified stolen property. On a memorandum of accused Jagannath, cash of Rs. 640/- came to be seized. On 3rd March 2005, identification parade was conducted by Naib Tahsildar, Rupa Vithalrao Chitrak (PW 17). 3. After completion of investigation, charge was filed against 14 accused including the deceased. Since the offence was exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions. The charges were framed. The accused pleaded not guilty and claimed to be tried. 4. The trial court by the order impugned, acquitted original accused nos. 4, 5, 7, 8 and 10 of the offence punishable under Section 395 of the Indian Penal Code. The trial court also acquitted original accused no.1 Bharat of the offence punishable under Section 302 of the Indian Penal Code. However, the trial court has convicted the present appellants of the offence punishable under Section 395 of the Indian Penal Code and sentenced them, as aforesaid. Being aggrieved thereby, the present appeal. 5. Mrs. A.S. Rasal and Mr. G.J. Mote, learned Counsel appearing on behalf of the respective appellants / accused, have submitted that the trial court has grossly erred in convicting the accused. It is submitted that the accused have been convicted only on the basis of the identification of the accused in the identification parade. It is submitted that even according to the prosecution, the incident had taken place in the night when there was darkness. It is further submitted that even according to the prosecution witnesses, the faces of the accused were covered. It is, therefore, submitted that it was impossible for the witnesses to have seen the accused persons. It is further submitted that the identification parade was not held in accordance with law. It is further submitted that a single identification parade was held for two or more accused. It is also submitted that the dummies were also not changed during identification parade. It is submitted that from the evidence of the prosecution witnesses itself, it was clear that prior to identification parade, the witnesses had an occasion to see the accused persons. It is further submitted that there is an inordinate delay in holding the identification parade. It is also submitted that the dummies were also not changed during identification parade. It is submitted that from the evidence of the prosecution witnesses itself, it was clear that prior to identification parade, the witnesses had an occasion to see the accused persons. It is further submitted that there is an inordinate delay in holding the identification parade. It is submitted that during this parade, accused were brought to the court for remand on various dates and as such, the witnesses had an occasion to see the accused prior to holding of identification parade. Reliance is placed on the judgment of the Apex Court in the case of Mahabir Vs. State SC)) of Delhi (2008 ALL MR (Cri) 1397 (SC)), in this respect. 6. It is further submitted on behalf of the appellants, that in so far as the reliance on the recovery of the stolen articles is concerned, the same is also not in accordance with law. It is submitted that from the evidence of Investigating Officer itself, it is clear that the stolen articles were not seized properly and were also not kept in proper custody. It is submitted that according to the prosecution witnesses, the stolen jewellery was used one, whereas the jewellery which was identified in the court was a new jewellery. It is, therefore, submitted that the reliance on the said recovery is also of no assistance to the prosecution. 7. Mr. K.G. Patil, learned Additional Public Prosecutor appearing for the respondent / State, on the contrary, submits that the evidence of identification parade is not a substantive piece of evidence but is only corroborative piece of evidence. He submits that since all the accused have been identified by the witnesses in the dock, the attack on the lacunas in the identification parade is of no assistance to the accused. He further submits that the trial court has rightly found corroboration from the identification parade as the accused have been identified by the witnesses in the dock. 8. Perusal of the evidence would reveal that six persons have identified various accused in the identification parade. It can further be seen that it is Yamaji (PW 7) who has identified all the accused persons who have been convicted. The accused, who were not identified by these witnesses, have been acquitted by the trial court. 8. Perusal of the evidence would reveal that six persons have identified various accused in the identification parade. It can further be seen that it is Yamaji (PW 7) who has identified all the accused persons who have been convicted. The accused, who were not identified by these witnesses, have been acquitted by the trial court. As such, the evidence of this witness would be of vital importance. According to this witness, the accused had come to his house at around 11 ‘O’ Clock in the night and stolen the property. According to this witness, the identification parade has been held after three months from the date of the incident. According to him, three identification parades were held in his presence. He has stated that he has identified three accused in the first identification parade, three accused in the second identification parade and three accused in the third identification parade. However, the said witness has identified only eight persons in the dock. This witness has further stated that the other witnesses were also called for identification parade with him. He has stated that firstly accused Bhausaheb was called and he was called three times. He has further stated that he was called on the second time. It could thus be seen that after every identification parade, all the witnesses had an occasion to interact with each other prior to the subsequent identification parades. This witness has further identified that about 10 - 15 dummies were common in all three identification parades. This witness has further admitted that they were in a position to see the accused changing clothes. 9. The Executive Magistrate, Rupa Chitrak (PW 17) has clearly admitted in her evidence, that she was not aware about under what provision the identification parade was held and what was the procedure which was required to be followed for the identification parade. She has further stated that a note regarding the enquiry, as to whether the witness had an occasion to see the accused prior to the identification parade, was not made by her as it was not required. She has further stated that her earlier answer, that all the dummies were changed, was based on guess. It is to be noted that those accused were arrested on or around 14th December 2004. The identification parade has been held on 3rd March 2005. She has further stated that her earlier answer, that all the dummies were changed, was based on guess. It is to be noted that those accused were arrested on or around 14th December 2004. The identification parade has been held on 3rd March 2005. There is no plausible explanation as to why there is such an inordinate delay in holding the identification parade. 10. The Apex Court in the case of Mahabir Vs. State of Delhi (supra) has held as under :- " As was observed by this Court in Matru Vs. State of U.P., ( 1971(2) SCC 75 ) identification tests do not constitute substantive evidence. They are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the right lines. The identification can only be used as corroborative of the statement in court (See Santokh Singh Vs. 406) Izhar Hussain ( 1973(2) SCC 406 ). The necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses. The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eye witnesses of the crime. The identification proceedings are in the nature of tests and significantly, therefore, there is no provision for it in the Code and the Indian Evidence Act, 1872 (in short, ‘the Evidence Act’). It is desirable that a test identification parade should be conducted as soon as possible after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. This is a very common plea of the accused and, therefore, the prosecution has to be cautious to ensure that there is no scope for making such allegation. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. This is a very common plea of the accused and, therefore, the prosecution has to be cautious to ensure that there is no scope for making such allegation. If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution." (Emphasis supplied) 11. It could thus be seen that there has been inordinate delay of almost three months in holding identification parade. There is no explanation as to why the identification parade was not held earlier and what were the circumstances beyond control of the Investigating Officer to hold the identification parade earlier. It is the case of the accused, that the accused were taken to the court for remand purposes on various dates and on these dates, the witnesses might have seen the accused. It can further be seen that the witnesses themselves have admitted that they had an opportunity to interact with each other after the rounds of identification parade were held. It is further to be noted that Yamaji (PW 7) has himself admitted in his deposition, that they had an occasion to see the accused changing clothes. In these circumstances, I find that the evidence of the identification parade would be of no assistance to the prosecution case. 12. That leaves the question as to whether on the basis of the identification in the dock, the accused could be convicted or not. Learned Additional Public Prosecutor has led much stress in this respect. It is to be noted that all witnesses have admitted that they had seen the accused while committing dacoity. Some of them have seen in the dark. Some witnesses have stated that they had seen from the gap in the door. It is also the prosecution case, that the accused had broken electric bulbs. It is not in dispute that the identifying witnesses were totally strangers to the accused and even according to them, they only had an occasion to have glimpse of the accused persons during night hours. 13. The Apex Court in the case of Mahabir Vs. It is also the prosecution case, that the accused had broken electric bulbs. It is not in dispute that the identifying witnesses were totally strangers to the accused and even according to them, they only had an occasion to have glimpse of the accused persons during night hours. 13. The Apex Court in the case of Mahabir Vs. State of Delhi (supra) has observed thus : " It is no doubt true that much evidentiary value cannot be attached to the identification of the accused in Court where identifying witness is a total stranger who had just a fleeting glimpse of the person identified or who had no particular reason to remember the person concerned, if the identification is made for the firs time in Court. " In the present case, the incident is alleged to have taken place in December 2004, whereas the witnesses have identified accused in the dock somewhere in August 2005. It is difficult to believe that the witnesses would remember all the accused after a period of almost eight months when even according to them, they had only an occasion to have glimpse of the accused and that too in dark. In that view of the matter, I find that the contention of the learned Additional Public Prosecutor, in this respect, is without any merit. 14. That leaves to the question as to whether the circumstance of recovery from accused Kashinath would be of assistance to the prosecution case. 15. The Investigating Officer, Balaji Sontakke (PW 21) has clearly admitted in his evidence, that slips were not tightly pasted with each and every article. He has further admitted that the articles were not actually sealed in the presence of Panchas when they were seized. The Investigating Officer has admitted in his cross examination, that the recovered ornaments were not tested from expert. It is further to be noted that one Rameshwar Ambilwade, from whom the stolen articles were allegedly seized, is not made a co-accused. It is further to be noted that the articles which were seized, were used one, whereas the articles which have been identified by the witnesses are new articles. As such, recovery of the stolen articles, which is alleged to be at the instance of accused Kashinath, also cannot be said to be in accordance with law so as to wipe out the doubt regarding its genuineness. 16. As such, recovery of the stolen articles, which is alleged to be at the instance of accused Kashinath, also cannot be said to be in accordance with law so as to wipe out the doubt regarding its genuineness. 16. In the totality of circumstances, I am of the considered view that the prosecution has failed to prove the case beyond reasonable doubt. In that view of the matter, the order of conviction and sentence is not sustainable in law and the same deserves to be quashed and set aside. 17. Hence, appeals are allowed. The order of conviction and sentence passed against the appellants / original accused by the learned IInd Ad hoc Additional Sessions Judge, Aurangabad, in Sessions Case No. 76/2005, dated 2nd March 2006, is quashed and set aside. The appellants / original accused are acquitted of the offence punishable under Section 395 of the Indian Penal Code. The appellants / original accused, who are in prison, are directed to be set at liberty forthwith, if not required in any other case. Bail bonds of the appellants / original accused, who are on bail, are discharged.