2003 ALL MR (Cri) 1748
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

J.G. CHITRE, J.

Fateh Mohamad Gulmohammad Sayed Vs. State Of Maharashtra

Criminal Appeal No.621 of 1999,Criminal Appeal No.247 of 2000,Criminal Appeal No.575 of 1999

8th July, 2002

Petitioner Counsel: Shri. ZAKIR HUSAIN
Respondent Counsel: Shri. SHRINGARPURE

Evidence Act (1872), S.9 - Test identification parade - Absence of proof of holding test identification parade - Identification of accused by the witnesses in Court - Witnesses having opportunity of seeing accused on 3 to 4 occasions when they visited court for giving evidence - Accused strangers to witnesses - Held, such identification in the Court by the witnesses while giving evidence on oath becomes valueless.

When the identification parades are held and either the Special Executive Magistrate dies or panch witnesses dies, or one of the panch witnesses dies, again it causes a difficulty in the way of prosecution for establishing the guilt of the accused as it has happened in the present case. Had the panch witness to test identification parade been examined in this case, Shri. Shringarpure would have been in a position to make his submissions for justifying the case of prosecution and the judgment and order put to challenge. Failure to examine important witnesses always results in miscarriage of justice and causes prejudice to the interest of either of the sides in such trials. Prosecution Agency is cautioned in this context also. In the present case, both Hema and Lata have admitted in the evidence that the appellants were strangers to both of them. The prosecution has led no evidence in respect of test identification parade. It has come in the prosecution evidence itself that Hema and Lata had an opportunity of seeing the appellants, when they visited the trial Court on 3 to 4 occasions for giving evidence. Had they been examined on the first date of appearance such situation would not have arisen. Leaving aside things as they happened, this Court moves further in examining the prosecution evidence for the purpose of finding out the guilt or innocence of the appellants. The incident took place all of a sudden, though it lasted for half an hour. Both Hema and Lata were frightened during the entire episode. Therefore, they could not have coolness of mind in observing the features of the culprits. It has been revealed by their evidence when they committed the error in giving the description of the culprits vis-a-vis the present appellants. In the matter of Kanan and others Vs. State of Kerala, reported in A.I.R. 1979 S.C. 1127, the Supreme Court has held that in the absence of test identification parade, the identification in the Court by the prosecution witnesses gets weakened and if they happen to be strangers to the prosecution witnesses, such identification in the Court by the witnesses while giving evidence on oath becomes valueless. In the present case, the prosecution case entirely depends on the identification of culprits. The evidence of both the witnesses fails on this point. AIR 1979 SC 1127 - Followed. [Para 9,11]

Cases Cited:
Kanan Vs. State of Kerala, A.I.R. 1979 S.C. 1127 [Para 11]


JUDGMENT

JUDGMENT :- These appeals are being decided by common judgment as they arise from Sessions Case No.886 of 1995. Smt. Latika Khemani is appearing for the appellant in Criminal Appeal No.575 of 1999, Shri. Naveen Chomal is appearing for appellant in Criminal Appeal No.247 of 2000 and Shri. Zakir Husain is appearing for appellant in Criminal Appeal No.621 of 1999. They have been heard at length in context with the evidence on record, so also Shri. Shringarpure, A.P.P. appearing for the prosecution.

2. The appellants are assailing the correctness, propriety, and legality of the order of conviction and sentence passed against them by Additional Sessions Judge, Greater Mumbai, in Sessions Case No.886/1995 whereby the learned Judge convicted them for the offences punishable under Section 392 r/w sections 397 and 34, Section 457 and Section 506(II) of I.P.C. He sentenced them as follows :

For offence punishable under Section 392 r/w Sections 397 and 34 of Indian Penal Code the appellants have been sentenced to undergo rigorous imprisonment for 7 years each. They have been sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs.1000/- in default to undergo further rigorous imprisonment for three months each, for the offence punishable under section 457 of I.P.C. They have been convicted for the offence punishable under Section 506(II) and sentenced to undergo rigorous imprisonment for three years each. The substantive sentences are directed to run concurrently.

3. The prosecution case in brief can be mentioned hereunder.

Complainant Hema Bharat Mehta was residing at relevant time at Block No.5, Shanta Bhuvan, Jain Derasar Lane, Wadala (West), Mumbai-31. On 25/1/1995 at about 10 a.m. her husband left for office as usual and after his departure, complainant Hema and her maid servant Lata were at home. At 12.30 p.m. or so, the three appellants pressed the bell on the door and the door was opened by Lata. At that time the accused Nos.1 and 2 were possessing the dagger and knife. They immediately put knife on the neck of Lata and took her inside the house and thereafter, they threatened Hema by showing the knives and asked her to hand over the cash which was in the cupboard. She was taken to bedroom where cupboard was placed. As per prosecution case, Hema took out the cash to the tune of Rs.2,61000/-. As per the prosecution case the appellants took away the said cash after tying the hands of both Hema and Lata, their mouths were also tied by sticking tape. As the hands were tied by tape Lata could remove her tied hands by removing tape. Thereafter she removed tape stuck to the mouth and untied Hema. Hema rang her relative namely Jayant who was residing in the said building. The Complaint was lodged in the police station and investigation started and resulted in the trial. Wherein the appellants have been convicted and sentenced as mentioned above.

4. Smt. Latika Khemani, Shri. Naveen Chomal and Shri. Zakir Husain, Counsel appearing for the appellants submitted that as per evidence of P.W. Hema and Lata, the assailants were the strangers to them. Furthermore, their evidence shows that they had an opportunity of seeing the appellants when they had attended the Court for the evidence on 3 to 4 occasions. It is their submission that in view of this aspect of the case, the identification made in the Court by these witnesses cannot be believed. They submitted that the prosecution for the reasons best known to it did not examine the panch witness who was present for test identification parade held by Special Executive Magistrate who died after conducting the test identification parade. They submitted that even the memorandum of test identification parade has not been produced, leave aside proved.

5. Shri. Chomal submitted that the golden chain which has been alleged to have been seized from Sheshmal Jwellers at the instance of appellant Gokul Patra has not been mentioned even in F.I.R. The said chain does not have any special identification mark. Therefore, it cannot be said to be belonging or in possession of P.W. Hema and as such the prosecution does not have any incriminating material against the appellants. Smt. Khemani submitted that so far as appellant Haroon Kasam Khan is concerned the part which has been attributed to him is that he was standing without doing anything at the relevant time. All the Counsel appearing for the appellants submitted that the learned trial Judge has committed an error in accepting the prosecution evidence and convicting the appellants. According to them, the judgment and order is not only erroneous but illegal also. They prayed that the said judgment and order of conviction and sentence be set aside and the appellants be acquitted.

6. Shri. Shringarpure attempted his best to justify the said order of conviction and sentence.

7. At the out set, this Court expresses its displeasure and dis-satisfaction about the non examination of Roshmal Roshan Kamra, the jwellers from whose possession the investigating officer seized the golden chain. None of the appellants claimed it. The said chain has not been also mentioned to have been stolen in the F.I.R. When such an article is not mentioned to have been stolen in the F.I.R. it is totally improper on the part of the investigating officer to go for seizure of such an article. It casts serious prejudice to a businessman in his business, reputation as well as in his social reputation whenever police visit his shop; it causes a serious dent to his business and social reputation which never gets restored. Had there been a mention in the F.I.R. that such an article was stolen at the time of said incident of dacoity, house breaking or robbery, there could have been some justification.

8. Amusingly the jweller has not been examined as a prosecution witness in the trial Court. He has not been given an opportunity of claiming that article in the Court. Had he been examined, he would have said something about his ownership in respect of that golden chain. His non examination is likely to cause him a financial loss and denial of an opportunity of putting a claim on the said chain. Had there been no statement coming forth from the investigating officer, he would have been totally left unheard and he would have been required to file a suit for protecting his interest and that would have increased the litigation and that could have added to arrears of pending litigations. Therefore, it is necessary to caution the agency conducting the prosecution and the Courts conducting the trials that invariably such witnesses should be examined. Examination of such witnesses is very much necessary in the interest of justice. If there is a mention in F.I.R. examination of such witnesses becomes absolutely necessary.

9. So also when the identification parades are held and either the Special Executive Magistrate dies or panch witness die, or one of the panch witnesses dies, again it causes a difficulty in the way of prosecution for establishing the guilt of the accused as it has happened in the present case. Had the panch witness to test identification parade been examined in this case, Shri. Shringarpure would have been in a position to make his submissions for justifying the case of prosecution and the judgment and order put to challenge. Failure to examine important witnesses always results in miscarriage of justice and causes prejudice to the interest of either of the sides in such trials. Prosecution Agency is cautioned in this context also.

10. In the present case, both Hema and Lata have admitted in the evidence that the appellants were strangers to both of them. The prosecution has led no evidence in respect of test identification parade. It has come in the prosecution evidence itself that Hema and Lata had an opportunity of seeing the appellants, when they visited the trial Court on 3 to 4 occasions for giving evidence. Had they been examined on the first date of appearance such situation would not have arisen. Leaving aside things as they happened, this Court moves further in examining the prosecution evidence for the purpose of finding out the guilt or innocence of the appellants.

11. The incident took place all of a sudden, though it lasted for half an hour. Both Hema and Lata were frightened during the entire episode. Therefore, they could not have coolness of mind in observing the features of the culprits. It has been revealed by their evidence when they committed the error in giving the description of the culprits vis-a-vis the present appellants. In the matter of Kanan and others Vs. State of Kerala, reported in A.I.R. 1979 S.C. 1127, the Supreme Court has held that in the absence of test identification parade, the identification in the Court by the prosecution witnesses gets weakened and if they happen to be strangers to the prosecution witnesses, such identification in the Court by the witnesses while giving evidence on oath becomes valueless. In the present case, the prosecution case entirely depends on the identification of culprits. The evidence of both the witnesses fails on this point.

12. The learned trial Judge did not consider the important aspect of the case while appreciating the evidence on record. In fact it cannot be called to be a legal appreciation of the evidence because his act of accepting the prosecution evidence is against the established principles of Criminal Jurisprudence. Such judgment cannot be permitted to sustain even for a moment, because it is not only improper, incorrect but happens to be illegal also.

13. Thus, appeals are allowed. The order of conviction and sentence passed against the appellants stands set aside. The appellants are acquitted. They be set free if not required in any enquiry, investigation, proceeding or trial or if they do not happen to be convicted for any other trial. The appellant Gokul Simachal Patra and Fateh Mohd. Gul Mohd. Sayyed are in jail. The appellant Haroon Kasam is on bail. His bail bond stands discharged. The golden chain recovered from the possession of Roshmal Roshanlal Kamra be returned to him, as the prosecution has not established that it happens to be a stolen article and none of the appellants claimed it and prosecution has not examined him. No interference in respect of other portion of the order regarding disposal of the property produced at the time of trial.

The parties are directed to act upon the copy of this order duly authenticated by the Sheristedar of this Court.

Appeals allowed.