2007 ALL MR (Cri) 2438
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)

K.J. ROHEE AND S.R. DONGAONKAR, JJ.

Shamshersingh S/O. Devisingh Thakur & Anr.Vs. State Of Maharashtra

Criminal Appeal No.450 of 1992,Criminal Appeal No.459 of 1992,Criminal Appeal No.114 of 1993

20th July, 2007

Petitioner Counsel: Mr. R. M. PATWARDHAN
Respondent Counsel: Mr. D. B. PATEL

Evidence Act (1872), S.9 - Criminal Manual, Chapter I, Para 16(2)(h) - Test identification - A1, A3 and A4 made to stand at the same time and witnesses asked to identify them one after another - No separate identification parade held for each of the accused - Breach of Para 16(2)(h) of Chapter I of Criminal Manual - However, held, the identification Parade does not lose its credibility because strict compliance to the concerned rules given in Criminal Manual may not be possible in every case - As far as possible those rules are to be followed by the officer conducting identification parade. (Paras 13 to 15)

JUDGMENT

K. J. ROHEE, J.:- In first appeal original accused No.1 Shamshersingh Devisingh Thakur and original accused No.3 Sadiq Khan s/o. Babukhan Pathan are the appellants, in the second appeal original accused No.5 Bhimrao Natthuji Shrirame is the appellant whereas in the third appeal the State is the appellant. In the first appeal, accused Nos.1 and 3 have challenged their conviction for the offence punishable under Sections 392/34 of IPC and sentence of R.I. for 5 years and fine of Rs.3,000/- in default R.I. for 8 months whereas in the second appeal accused No.5 has challenged his conviction for the offence punishable under Section 412 of IPC and sentence of R.I. for 4 years and fine of Rs.2,000/- in default further R.I. for 6 months, imposed by the Additional Sessions Judge, Nagpur in Sessions Case No.791/90 decided on 25-11-1992. The third appeal is preferred by the State against the acquittal of all the accused for the offence punishable under Section 395 of IPC and further acquittal of accused Nos.2 and 4 to 8 for the offence punishable under Section 342/34 of IPC and that of accused No.4 under Section 3/25 of the Arms Act. We have heard those appeals together and are deciding them by this common judgment.

2. The facts giving rise to these appeals can be briefly stated as under :-

PW-1 Mohandas Tikamdas Motwani resides with his wife PW-2 Asha, two young daughters and a son. They reside in Quarter No.MIG/29/50 of the Housing Board Colony, Hiwri Nagar, P. S. Kotwali (Nagpur). In the front room of the said block, PW-1 Mohandas runs "Sona General Stores". His wife PW-2 Asha helps him in running the said shop. The marriage of Jaya, the elder daughter of PW-1 and 2, was settled and was to be solemnized.

3. On 10-12-1989 around 8.30 p.m. PW-1 Mohandas was sitting in his shop. Three persons visited his shop twice and purchased cigarettes. On their third visit around 9.15 p.m. one of them took out a pistol and under its threat took PW-1 Mohandas in the inner room. Those three persons entered the house and one remained in the shop. Those three persons raised the voice of TV. At the point of pistol/rivolver and knife, those three persons asked PW-1 Mohandas to hand over money and gold. They threatened him that in case their demand is not fulfilled, they would rape his daughter who was to be married. They put PW-2 Asha, her children and her brother Ajay in the store room and closed it. They compelled PW-1 Mohandas to open the almirah and to hand over cash of Rs.5,000/-, gold ornaments and wrist watches worth Rs.38,500/-. Thereafter they also put PW-1 Mohandas in the same storeroom and closed it. Then they left the place by closing the gate of the compound of the house. PW-1 and 2 raised alarm, however, nobody could hear their voice. They broke open the planks of the door of the storeroom and came out. Thereafter somebody informed the Police.

4. PSI Yadao of P. S. Kotwali (Nagpur) immediately rushed to the place of incident. He prepared spot panchanama (Exh.62) in presence of the panchas. PW-1 Mohandas lodged report (Exh.64) wherein he gave description of those three robbers on the basis of which Crime No.373/89 under Sections 392, 341/34 of IPC was registered against four unknown persons.

5. On the next day i.e. on 11-12-1989 during patrolling around 2 p.m. PW-14 PI Mishra of Crime Branch, Nagpur arrested A1 Shamshersingh who was wandering in suspicious condition near Bhutiya Darwaja. On the same day during interrogation by ACP Paraskar (PW-21) in presence of PW-6 Bhupnarayan Sharma and PW-7 Shamrao Chamat, A1 Shamshersingh agreed to show the stolen property. Accordingly memorandum (Exh.71) was prepared. Thereafter A1 Shamshersingh took them to village Takli at the house of one Bhagabai Maroti Jibe. He showed one block consisting two rooms which was locked and was rented out to Waman Devman Ghangare (accused No.4). The lock was broken open and from the rear room A1 Shamshersingh produced a bag containing gold ornaments, clothes, photograph of A4 Waman, a letter addressed to A4 Waman and a pass-book of A4 Waman. All the property was seized under seizure memo (Exh.72). On the same day A2 Ajay was arrested and on interrogation cash of Rs.1,000/- and one calculator were discovered by him from his shop which was seized under Exhs.73 and 74. The clothes produced by A2 were seized from his house under Exh.129. During investigation two motor-cycles were seized from third persons. The complainant produced the photographs of his wife and daughter showing the gold ornaments worn by them.

6. On 18-12-1989 at the instance of A5 Bhimrao Natthuji Shrirame a bag containing ladies purse, silver ornaments and three wrist watches were seized from A6 Prakash Bapurao Gajbhiye in presence of Bhimrao Ramdas Lokhande and Bhaurao Kavdu Dahekar (PW-12) under Exhs.131 and 132. On 22-12-1989 cash of Rs.300/-, a sweater and a knife were seized at the instance of A3 Sadiqkhan Babukhan Pathan in presence of the panchas under Exhs.90 and 91. On 26-12-1989 one Mohd. Ibrahim, resident of Pusad, produced a cardboard box containing country made pistol and three cartridges before PI Marathe (PW-20) of P. S. Pusad who seized the said property in presence of panchas Uttam Dattu Jadhav and Rangrao Shamrao More (PW-13) under Exh.97.

7. On 6-1-1990 identification parade was held by Shri. Ambagade, Executive Magistrate, Nagpur (PW-9) in Central Jail, Nagpur, in presence of two panchas wherein PW-1 Mohandas identified A1 Shamshersingh, A3 Sadiqkhan and A4 Waman; PW-1 Asha identified A1 Shamshersingh and A4 Waman and Ajay identified A1 Shamshersingh and A3 Sadiqkhan vide Exhs.80 and 81. On 17-4-1990 Shri. Linge, Executive Magistrate, Nagpur (PW-19) held identification parade in respect of ornaments, wrist watches, calculator, purse and cash at Kotwali Police Station, Nagpur in presence of Tarachand Durga Manjare (PW-3) and Shivkumar Ramlal Jaiswal (PW-4) wherein A1 Shamshersingh and A2 Asha identified all the items vide Exh.122. The property was sent to Assistant Chemical Analyser (Ballastic) Bombay who reported that the country made hand gun was in working order and was capable of chambering and firing 12 bore shotgun cartridges vide Exh.133. After completion of investigation, charge-sheet was filed against accused persons for the offences punishable under Sections 395, 341 and 216 of IPC and under Section 3/25 of the Arms Act.

8. The trial Court framed charge for the offence punishable under Sections 395, 341/34 of IPC against all the accused and under section 3/25 of the Arms Act against accused No.4. The defence of all the accused is of denial. They did not claim any of the property including cash seized during investigation.

9. The prosecution examined 21 witnesses including PW-1 Mohandas; PW-2 Asha; PW-9 Shri. Ambagade, Executive Magistrate; PW-19 Shri. Linge, Executive Magistrate; PI Mishra (PW-14); PI Marathe (PW-20) and ACP Paraskar (PW-21). The trial Court held that the offence under Section 392 read with Section 34 has been proved against A1 Shamshersingh and A3 Sadiqkhan and offence under Section 412 of IPC has been proved against A5 Bhimrao. The trial Court accordingly convicted A1, A3 and A5 and acquitted rest of the accused. A1, A3 and A5 have challenged their conviction whereas the State has challenged the acquittal of all the accused as stated above.

10. We have heard Mr. R. M. Patwardhan, Advocate for A1 Shamshersingh and A3 Sadiqkhan, Mr. P. S. Thakre, Advocate for A4 Waman, Mr. R. S. Thakur, Advocate for A5 Bhimrao, Mr. A. H. Shende, Advocate for A6 Prakash and Mr. D. B. Patel, APP for State. We have also gone through the record and proceedings of the trial with the assistance of the learned counsel for the parties.

11. Mr. Patwardhan, the learned counsel for A1 and A3 submitted that none of the culprits were known to PW-1 Mohandas and PW-2 Asha. The evidence of PW-1 Mohandas and PW-2 Asha shows that the culprits were in their house for a very short time and at that time PW-1 Mohandas and PW-2 Asha were shocked and frightened. Thus there was no adequate opportunity for them to observe the culprits. Mr. Patwardhan submitted that there is variance between the testimony of PW-1 Mohandas and PW-2 Asha. Mr. Patwardhan pointed out that PW-2 Asha did not give description of the culprits to the police and PW-1 Mohandas did not give description of the stolen property in the report (Exh.64). Mr. Patwardhan further submitted that according to the prosecution A1 Shamshersingh was arrested on the very next day of the incident at 2 p.m. and in the evening the stolen property was discovered at his instance. The distance from the place of arrest, the Police Station and the place from where the said property was recovered is considerable which throws doubt on the veracity of the investigation and it indicates that the investigation is tainted. Mr. Patwardhan further submitted that knife, cash of Rs.300/- and sweater alleged to have been discovered by A3 Sadiqkhan have not been established to have any nexus with the crime in question. Mr. Patwardhan further submitted that though it is alleged that A1 was arrested on 11-12-1989, he was not shown to PW-1 Mohandas and PW-2 Asha in order to ascertain whether he was amongst the culprits. He further submitted that the identification parade was held as late as on 7-1-1990. Thus there was delay in holding identification parade which vitiates the sanctity of the identification. Mr. Thakur, the learned counsel for A5 Bhimrao, submitted that discovery at the instance of A5 Bhimrao from A6 Prakash is not proved and that A5 Bhimrao could not be convicted particularly when A6 Prakash is acquitted. Mr. Shende, the learned counsel for A6 Prakash adopted the submission of Mr. Thakur. Mr. D. B. Patel, the learned APP, on the other hand, justified the impugned judgment so far as it relates to the conviction of A1 Shamshersingh, A3 Sadiqkhan and A5 Bhimrao. He submitted that the prosecution has proved the guilt of all the accused beyond doubt and that the trial Court erred in acquitting some of the accused persons. According to him all those who are acquitted are liable to be convicted.

12. It may be seen that PW-1 Mohandas and PW-2 Asha have described the incident in details. Their testimony is most natural. We do not find any inconsistency in their testimony on material particulars. It is true that the culprits were not known to PW-1 Mohandas and that PW-2 Asha and that PW-1 Mohandas and PW-2 Asha had seen them for the first time at the time of the incident. However, from the evidence of PW-1 Mohandas and PW-2 Asha, it appears that the culprits were in the shop and in the house for considerable time. The evidence does not show that the culprits had covered their faces in order to prevent anybody from identifying them. Thus PW-1 Mohandas and PW-2 Asha had full opportunity of observing the culprits who were three in number. It may be remembered that PW-1 Mohandas and PW-2 Asha and other family members were put in the storeroom and it was closed from outside by the culprits. Hence it took some time for them to break open the door and to come out of the storeroom. However, soon after they rescued themselves, PW-1 Mohandas lodged immediate report at the Police Station and offence was registered at 11.30 p.m. Considering the time that might have taken, PW-1 Mohandas and PW-2 Asha to rescue themselves and the distance between their house and the Police Station, the report also appears to be very prompt and there is no likelihood of falsely implicating anybody in the alleged crime. It may further be seen that PW-1 Mohandas has given the description of three out of four culprits in details in the report (Exh.64) itself. Merely because PW-2 did not give description of the culprits in her statement would not render the report (Exh.64) and the testimony of PW-1 untrustworthy.

13. It is true that PW-1 and PW-2 were not asked to identify A1 Shamshersingh when he was arrested on the next day. It is also true that the identification parade was held on 6-1-1990 in the Central Jail. However, it shows that the Investigating Officers were quite fair to the culprits. It is important to note that both PW-1 Mohandas and PW-2 Asha identified A1 Shamshersingh in the identification parade. Thus there is no scope for misidentification of A1 Shamshersingh. While criticizing the identification parade, Mr. Patwardhan, the learned counsel for A1 Shamshersingh and A3 Sadiqkhan, submitted that the record does not show that the dummies of similar age, similar height and similar complexion were made to stand with the accused persons. It was further submitted that the record of the identification parade shows that A1 Shamshersingh, A3 Sadiqkhan and A4 Waman were made to stand at the same time and PW-1 Mohandas, PW-2 Asha and Ajay were asked to identify them one after another. No separate identification parade was held for each of the accused. Thus there was breach of para 16(2)(h) of Chapter I of Criminal Manual. As such the identification parade loses its credibility and it could not have been held that A1 Shamshersingh and A3 Sadiqkhan were identified as the culprits.

14. We are unable to find force in these submissions. What is important is that the identification parade should be arranged in a fair manner and causing of any prejudice to any of the accused should be avoided. Strict compliance to the concerned rules given in Criminal Manual may not be possible in every case. As far as possible those rules are to be followed by the Officer conducting identification parade. Even otherwise there is nothing on record to suggest that PW-1 Mohandas and PW-2 Asha have any reason to depose false against A1 Shamshersingh. In the present case we find that PW-9 Shri. Ambagade took proper precaution in holding the identification parade and that PW-1 Mohandas and PW-2 Asha identified A1 Shamshersingh. The trial Court has believed this piece of evidence and we do not see any reason to disagree with the trial Court.

15. Another important circumstance against A1 Shamshersingh is that immediately after his arrest, the stolen property was discovered at his instance from a block owned by Bhagabai Maroti Jibe and rented to A4 Waman. The said property was in due course identified by PW-1 Mohandas and PW-2 Asha. Thus the nexus between A1 Shamshersingh and the stolen property is fully established. it is true that the landlady viz. Bhagabai is not examined by the prosecution to show that the block was rented out to A4 Waman and was in his possession. However, the fact remains that the block was locked when A1 Shamshersingh took the police party there and that the said lock was required to be broke open. It is thus obvious that A1 Shamshersingh had the knowledge of the place where the stolen property was concealed. This clearly indicates his involvement in the crime. As such even if there is some irregularity in conducting identification parade it will not vitiate the inference that A1 Shamshersingh, is responsible for committing the offence of robbery at the house of PW-1 Mohandas. Thus the offence under Section 392 of IPC is proved against A1 Shamshersingh beyond doubt.

16. We feel that in fact the ingredients of the offence punishable under Section 397 of IPC are proved in as much as deadly weapons like pistol and knife were used while committing robbery. However, in the circumstances of the case we do not propose to modify the conviction of A1 Shamshersingh from Section 392 to Section 397 of IPC.

17. So far as A3 Sadiqkhan is concerned, he was identified only by PW-1 Mohandas and not by PW-2 Asha. During investigation a knife, cash of Rs.300/- and sweater were seized from his house at his instance. However, the nexus between the cash and the stolen property is not established. In view of the fact that A4 Waman was not identified by PW-2 Asha, we think it expedient to acquit him by giving benefit of doubt.

18. As regards A5 Bhimrao, the only evidence is of discovery of three wrist watches, silver ornaments and ladies purse of foam leather at his instance from the house of A6 Prakash. However, out of two panch witnesses, the prosecution examined only one panch viz. Bhaurao Kavdu Dahekar (PW-12) and he did not support the prosecution. The trial Court observed that A6 Prakash cannot be presumed to have knowledge that the property found at his house was a stolen property. If that is so, how A5 Bhimrao is presumed to have knowledge that it was stolen property, is not known. In our view, the trial Court was wrong in convicting A5 Bhimrao particularly when A6 Prakash was acquitted on the same set of facts. Hence we find that the conviction of A5 Bhimrao cannot be upheld for the offence with which he is convicted. He is, therefore, entitled to be acquitted.

19. It is made clear that even if, A3 Sadiqkhan and A5 Bhimrao, are found entitled for benefit of doubt, that will not affect the case of A1 Shamshersingh in view of the facts mentioned above.

20. As regards the remaining accused persons, there is no evidence worth the name to connect them with the incident of robbery and we find that the trial Court rightly acquitted them. We find that the reasons given by the trial Court are well merited and have been arrived at after a careful, exhaustive and proper analysis and consideration of both oral and documentary evidence on record. Hence their acquittal needs to be confirmed. We, therefore, pass the following order :

i) Criminal Appeal No.450/1992 is partly allowed. The conviction and sentence of A1 Shamshersingh is confirmed. His bail bonds stand cancelled. He is directed to surrender forthwith. The conviction of A3 Sadiqkhan is set aside and he is acquitted of the charge. His bail bonds stand cancelled.

ii) Criminal Appeal No.459/1992 is allowed. The conviction of A5 Bhimrao is set aside and he is acquitted of the charge. His bail bonds stand cancelled.

iii) Criminal Appeal No.114/1993 is dismissed.

Order accordingly.