Anwar @ Sikandar @ Akbar @ Faiyaz ... vs The State Of Maharashtra
2002 Latest Caselaw 1153 Bom

JUDGMENT

J.G. Chitre, J.

1. Appellant Anwar @ Sikandar @ Akabar @ Faiyaz Hussein Kasim Qureshi is hereby assailing correctness propriety and legality of the judgment and order passed by the Additional Sessions Judge for Greater Bombay in Sessions Case No. 688 of 1992 - 308 of 1992, wherein this appellant was tried along with seven other accused and was convicted for the offence punishable under Section 392 of Indian Penal Code and was sentenced to undergo rigorous imprisonment for four years. The prosecution case, in brief, can be stated as mentioned hereunder.

2. The incident of train robbery took place on 16/7/1991 on a running train between V.T. and Kurla. The appellant and his associates as per prosecution case, boarded a compartment in that train wherein P.W. Ashok Thakur who had got in from V.T. was sitting and wanted to go to Wadala, to purchase Mangoes. He was in First Class compartment. At Wadala he got down and purchased Mangoes and boarded the train to go to Bandra. The said unfortunate train which was looted was late and came to Wadala station at 8.20 P.M. There were 10 to 12 passengers along with him. The appellant and his associates were armed, they took away valuables from the said witness and others at the point of arms. A wrist watch was stolen from Ashok Thakur by the appellant as per prosecution case. When the train robbers went away and thereafter when the said train reached Mahim Station, the witnesses Ashok Thakur and others who were looted, lodged the police report in Mahim Railway Police Station. The said complaint was investigated into and the appellant along with his associates was put to trial.

3. The prosecution adduced evidence of Ashok Thakur and P.W. Surayakant Bhavanji Sachadev, Special Executive Magistrate in respect of identification parade. The learned trial judge accepted their evidence against the present appellant as sufficient enough for conviction and sentence and he passed the order which has been mentioned above.

4. Shri Sanghani, Counsel for the appellant, submitted that identification parade has not been properly held keeping in view the precautions which are to be taken in view of prevalent law. He pointed out that it has come in the evidence of P.W. Ashok Thakur himself, that he was taken to Bombay Central Railway Police Station, where said identification parade was held and the said police constable was very much present in the room where said identification parade was taken. He pointed out that it has come in the evidence of P.W. Ashok Thakur that, that police constable took him to the row of suspects and dummies and therefore, this identification parade cannot be the basis of conviction and sentence. Furthermore, he submitted that the appellant was totally stranger to P.W. Ashok Thakur and therefore, his identification in the Court after lapse of so many days cannot be taken to be legal basis of conviction. Shri Shringarpure, A.P.P. made his best to justify the said order of conviction and sentence.

5. Though, the Special Executive Magistrate Sachadeo has stated in his evidence that he took all the precautions, as contemplated in High Court rules made for holding identification parade, the falseness in that has been exposed by the statements made by none else but P.W. Ashok Thakur in his evidence. His evidence shows that said constable who had brought him to Bombay Central Railway Police Station was very much present there when he identified the appellant. The truth on number of occasions come eloquently and suddenly. In this case same has happened. Though, the prosecution went with stereo type evidence in respect of identification parade, the statement in paragraph No. 4 made by Ashok Thakur has dismantled the castle of the prosecution on this point. The said identification parade was taken in Railway Police Station room and the police constable was present near the said row in which suspect and dummies were standing when P.W. Ashok Thakur claims to have identified the appellant. Said evidence cannot be said to be legal evidence by any stretch of imagination and that will have to be discarded.

6. Ashok Kumar has been examined on 1/8/1994. The alleged incident took place on 16/7/1991. After nearly three years P.W. Ashok Thakur was identifying the appellant in the Court when he was giving evidence on oath. The appellant was totally a stranger to him. In the midst of said hustle and bustle of the incident he might not have been in a position to mark the features of the appellant so as to remember him after three years. In view of the judgment of the Supreme Court in the matter of Kanan and Ors. v. State of Kerala, , such evidence of identification has to be discarded.

7. After discarding the evidence of identification parade and the victim, nothing remains to be considered in support of prosecution. On the contrary evidence of P.W. 10 also shows that the identification parade was taken in the same manner as stated by P.W. Ashok Kumar. The investigating agency should follow the practice consistent with the prevalent legal position while collecting evidence against the offenders. If the evidence is collected by throttling the provisions of law, such evidence cannot be believed. The trial Court has unfortunately lost the sight of these glaring infirmities and landed in error and passed the order of conviction and sentence. it will have to be set aside by allowing this appeal. Thus, appeal stands allowed. The order of conviction and sentence passed against the appellant stands set aside. He be released, if not required in any enquiry, investigation, proceeding or trial. He be also not released, if he happens to be undergoing sentence for other crime.

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