Shailendra Zolu Sahare And Etc. vs State Of Maharashtra
2005 Latest Caselaw 914 Bom

JUDGMENT

A.H. Joshi, J.

1. Appeal No. 468 of 2004 is by accused No. 3 Shailendra who was accused No. 3 and Criminal Appeal No. 469 is by Vinod who was accused No. 1 in Sessions Trial No. 135 of 2003. These accused were tried along with 2 other accused Lokesh Pardhi and Raju Bahekar. The trial resulted in acquittal of other accused and the appellants were convicted for the offence punishable under Section 459 read with Section 34 of the Indian Penal Code and sentenced to suffer R.I. for 5 years and fine of Rs. 5000/-and default sentence for S.I. for one month.

2. The judgment of conviction and sentence is challenged on the grounds namely :

(1) that the identification during the identification parade was suspicious and cannot be used to corroborate the identification of the accused before the Court;

(2) the identification of accused by witnesses even before the Court cannot be trusted being corroborated with unreliable identification parade;

(3) the identification parade was vitiated because there was publicity of photographs of the accused persons before the identification parade was conducted.

(4) Features of the accused or any other description thereby fixing the identify of the accused was not given by the witness Suresh Borole.

(5) That the contradictions or variations in the statement of P.W. 4 Suresh Borole about the place where he was sleeping when the dacoits entered his house creates suspicion about truthfulness of his testimony.

(6) The investigation agency was not fair;

(7) there were other accused persons who were arrested, all were in Jail when identification parade was conducted. However, the Investigating Officer did not secure their presence during identification parade though requisitioned, which results in grave doubt as to why the group of accused alone was excluded from identification parade.

(8) The other accused who were not brought before the Magistrate for identification parade were afterwards discharged by the police by applying to the Magistrate for discharge. While other two unidentified accused were tried along with appellants.

3. The case is being argued with Special emphasis on the question of identification though as much as 144 grounds in one appeal and 20 more grounds have been raised in other appeal.

4. In order to shatter the testimony of P.W. 4 and the judgment pressing the conviction based on the said identification the learned Advocate for the appellant placed reliance on large list of precedents namely :

1. AIR 1981 SC 1388 : (1981 Cri LJ 1010), Lakshman Prasad v. State of Bihar.

2. AIR 1987 SC 1222 : (1987 Cri LJ 991), Subhash and Shiv Shankar v. State of U. P.

3. SC Acc Cr J 437 : (1990 Cri LJ 2296), Chandran alias Surendran v. State of Kerala.

4. AIR 1991 SC 1468: (1991 Cri LJ 1833), Bollavaram Pedda Narsi Reddy v. State of A. P.

5. AIR 1992 SC 1854 : (1992 Cri LJ 3160), State of U. P. v. Hardeo.

6. AIR 1992 SC 1438 : (1992 Cri LJ 2333), Karam Singh alias Karmu v. The State by the Inspector of CBCID, Madras.

7. AIR 1993 SC 931 : (1993 Cri LJ 193), Tahir Mohammad, Kamad Girendra Singh, Badri/Singh v. State of M. P.

8. AIR 1997 SC 332 : (1997 Cri LJ 370), Jaspal Singh alias Pali v. State of Punjab with Darshan Singh v. State of Punjab.

9. AIR 1998 SC 1732 : (1998 Cri LJ 2271), Shambhu Dayal v. Subhash Chandra.

10. AIR 1998 SC 3031 : (1998 Cri LJ 4059), Ravindra alias Ravi Bansi Gohar v. State of Maharashtra.

11. SC Acc Cr J 684 : (1998 Cri LJ 4085), Jaipal v. State of U. T. Chandigarh.

12. AIR 1999 SC 1086 : (1999 Cri LJ 1639). Vijayan alias Rajan v. State of Kerala.

13. 2002 All MR (Cri) 398, Mohemmad Yusuf Mohammed Sharif Rahim v. The State of Maharashtra.

14. 2002 All MR (Cri) 2548 : (AIR 2002 SC 3325), Dana Yadav alias Dahu v. State of Bihar.

15. 2003 All MR (Cri) 1606 (SC) Nirmal Pasi v. State of Bihar.

16. 1982 Cri LJ 500 (Ori) Sidha Dehury v. State.

17. 1999 Cri LJ 4375 (AP), Manepalli Anjaneyulu v. State of A.P.

18. 2000 Cri LJ 4552 (All), Har Pal Singh v. State of U. P.

19. 1994 Cri LJ 1122 (SC) Latel v. State of M. P.

20. 1971 Cri LJ 974 (Raj) Pritam Singh v. The State of Rajasthan.

21. 1972 Cri LJ 233 (SC), Hasib v. The State of Bihar.

22. AIR 1974 SC 1822 : (1974 Cri LJ 890), Jamuna Chaudhary v. State of Bihar.

23. AIR 1992 SC 2100 : (1992 Cri LJ 3454) State of Maharashtra v. Sukhdeo Singh.

24. 2002 (1) Crimes 717 : (2002 Cri LJ 2216) (All), Kansa alias Kanaraj v. State of U. P.

25. AIR 1983 SC 367 : (1983 Cri LJ 689), Mohd. Abdul Hafeez v. State of Andhra Pradesh.

26. AIR 1992 SC 1871 : (1992 Cri LJ 3140). Hardial Singh v. State of Punjab.

27. 1994 (1) Crimes 294 SC, Bhalinder Singh alias Raju v. State of Punjab.

28. 1994 (1) Crimes 1017 : (1994 Cri LJ 2320), Rampal Pithwa Rahidass v. State of Maharashtra.

29. AIR 1994 SC 739: (1994 Cri LJ 922), Brij Mohan v. State of Rajasthan.

30. 1996 Cri LJ 2107 (Ori), Danu alias Biswajit Pattanaik v. State of Orissa.

31. 1997 (3) Crimes 240 : 1997 Cri LJ 3753) (SC), Shabad Pulla Reddy v. State of Andhra Pradesh.

32. 2000 Cri LJ 380 (SC), Rajesh Govind Jagesha v. Sharif Anwar Saiyyad.

33. 2002 All MR (Cri) 1030 (Bom) Sameer Hasan Shaikh v. The State of Maharashtra.

34. 2002 All MR (Cri) 19 : (2002 Cri LJ 1162) (Bom), Rameshkumar Babulal Sharma v. State of Maharashtra.

35. 2003 (1) Crimes 89 : (2003 Cri LJ 3441) (All), Shyam Singh v. State of U. P.

36. 2003 (1) Crimes 371 (Sikkim), Dil Bahadur Tamang v. State of Sikkim.

37. 1964 (2) Cri LJ 1, Sheo Raj v. State.

38. 2002 All M.R. (Cri) 2472 : (2003 Cri LJ 303) (Bom), Sayed Mohammed Owais v. State of Maharashtra.

39. 1982 Cri LJ 106 (Madh Pra), Bhaggiram v. State of Madhya Pradesh.

40. 1996 Cri LJ 2245 (Ori) Pagu Das v. State of Orissa.

41. AIR 1981 SC 1392 : (1981 Cri LJ 1014), Wakil Singh v. State of Bihar.

42. AIR 1983 SC 349 : (1983 Cri LJ 686) State of U. P. v. Jageshwar.

5. The learned Public Prosecutor placed reliance on the following judgments;

(1) 2002 Cri LJ 268, Daya Singh v. State of Haryana.

(2) 2003 Cri LJ 3535 (SC), Malkhansingh v. State of Madhya Pradesh.

6. After perusal of these judgments relied upon by the appellants, what reveals as a dictum governing the issue of identification could be summarised without discussing each judgment. What emerges on well settled position of law after perusal and careful reading of all the precedents cited at bar by both sides is as follows :

(a) That the identification of the accused before the Court is of prime Importance.

(b) Delay in conducting Identification parade or identification before the Court would constitute a ground for suspicion.

(c) Further sole reliance on test identification parade conducted during investigation would not be permissible.

(d) If the complainant of witness had in his memory the identity of the accused engraved or embossed because of the circumstances of the case, identification before the Court alone even if done after years of incident could be sufficient.

(e) Identification of unknown accused unless is supported by such engraved impression about the identity could create a suspicion.

(f) identification during test identification parade or even before the Court shall get vitiated and would be unreliable if photographs of accused so identified were published in newspapers before such identification.

(g) Whether identification done before Court should be ultimately trusted on objectively guided opinion that the trial Court forms after hearing the evidence, and any rigid rule in this Court cannot be formulated or laid down, and it would depend upon facts of each case.

7. In the light of these tests, evidence of P.W. 4 Suresh will have to be seen. In the statement of this witness, he has coherently stated as follows :

"I had identified two persons. They are Vinod Deshmukh and Shailesh Sahare. There was identification parade at Central Jail and I had identified these two accused at the identification parade, held in Central Jail. There 24 persons were arrayed in the row and I had identified two accused i.e. accused No. 1 Vinod and accused No. 3 Shailesh. The Magistrate had also taken signature. The witness is shown the signature on Exhs. 30 and 31. Witness identifies his signature on Exhs. 30 and 31."

In the cross-examination, he was put a question which is recorded in question answer form which is quoted below :

"Q. What you had noticed special when you say that you are still remembering two faces today?

Ans. They were standing in front of me," In the statement there is reference of noticing of faces of dacoits. As they were about to attack me I had impression of these in my mind.

He was further asked and he replied as follows :

"Q. You all persons were present together ?

Ans. We were present together out-side took about 2 minutes to me to identify at the identification parade."

It is true that this witness has admitted in the cross-examination that photographs of the accused persons were published in the newspapers much earlier to the identification parade.

8. Now, therefore, the only question to be decided in this case is whether the identification done by the P.W. 4 stands to the test of inspiring confidence.

9. The learned Advocate by virtue of grounds raised in appeal and oral submissions has not been successful in assailing the fact of identification except those suggestions that the photographs were published in the newspaper. Same fact of publication of photographs will have to be assessed for its effect.

10. It is the case of the prosecution that all throughout P.W. 4 was consistent in saying that he had identified two accused persons who were assaulting him from his front side, while other accused had held him from his back side whom he had not seen. This statement of this witness P.W. 4 is thus, candid and consistent on the point of identity of two accused. Since photographs of all the accused were published, P.W. 4 could have conveniently identified all of them. The consistency of the statement of witness P.W. 4 and his identification of only two accused before the Court, sufficiently establish presence of the accused on the scene of offence.

11. The problem which this witness may have to overcome to stand to the test of truth by applying negative test is as to how could he claimed to have known the names of the accused persons. This question was put to the witness which he has replied stating that upon two accused being identified, their names were proclaimed and witness thus, came to know the names of these two accused persons.

12. The crucial question, therefore, is whether the accused who were convicted were identified by the eye-witness P.W. 4 Suresh Borole whose house was subjected to the dacoity.

13. Thus, if the Court could gather from the demeanour of the witness that the witness is giving a truthful version and that the statement of the witness about the identity of the accused is reliable on the basis of permanent engravement of the image of the accused, there is no hurdle whatsoever in relying upon such testimony whereby the witness proves the identity of the accused as the person involved in the offence.

Such a reliance is possible more particularly when there are no grounds demonstrated, suggested or proved on record to attribute any motive to the witness for falsely involving the accused in the offence thereby it becomes a case of unimpeached revealing of the identity of the accused. In the present case, the testimony of witness Suresh Borole stands to the test of trustworthiness for the candidness and that he has made no efforts to pretend to identify whatsoever the accused than those who were affront and were assaulting him.

14. The identification being crux of the matter and being proved, there are no reasons as to why the prosecution witness should not be relied upon.

15. Another limb of argument of learned Advocate for the appellant needs to be dealt with which pertains to offering limited number of accused persons for identification parade and omitting other two who were latter in time discharged. This argument on its face seems to be sensible. However, considering the fact that all throughout witness Suresh claimed that he was able to identify two accused, further that on the date of identification parade, he identified the appellants, upon completion of identification parade, further effort of conducting additional identification parade, in order to isolate other accused became unnecessary when according to the prosecution the modus operandi used by other unidentified accused matched with one applied by accused in the present case, it was further rendered wholly unnecessary to find a fault with the identification parade by omitting other accused persons to take further identification parade. Had, it been a case that the present appellants too were not identified, yet the prosecution may have preferred to lodge a charge-sheet against them by omitting other accused who were not subjected to identification parade, this would have led to possible conclusion that the investigating machinery was or had bias against a group of accused persons or has reasons to favour another group of unidentified accused.

16. Having dealt with the main objection raised by the accused appellants, which squarely answered all the issues raised by the defence, it would not be necessary to deal with other facts raised and agitated by the appellants.

17. This Court, in the result, reaches the conclusion that the judgment of the trial Court in convicting the appellants is based on the sound reasons and does not call for interference and the appeal deserves to be dismissed. Appeal is therefore, dismissed.