State Of Maharashtra vs Dashrath Vishwanath @ Aangrajya ...
2017 Latest Caselaw 4157 Bom

                                                               63.01appeal
                                        1


                                        
      IN  THE HIGH COURT OF JUDICATURE AT BOMBAY

                               BENCH AT AURANGABAD


                     CRIMINAL APPEAL NO. 63 OF 2001


 The State of Maharashtra
                                 ...APPELLANT 
        VERSUS             

 1)  Dashrath S/o Vishwanath alias 
     Aangrajya Pawar 
     Age : 28 years, Occ : Labour, 
     R/o Ambajogai, Dist. Beed. 

 2)       Vinod S/o Vishwanath alias 
          Aangrajya Pawar 
          Age : 20 years, Occ : Labour, 
          R/o Ambajogai, Dist. Beed. 

 3)   Uttam S/o Kalu Shinde 
      Age : 22 years, Occ : Labour, 
      R/o Ambajogai, Dist. Beed. 
                                 ...RESPONDENTS
                      ...
 Mr.A.R. Borulkar, A.P.P. for  appellant - State.
 Mr. Satej S. Jadhav, advocate for respondent nos.1 to 3. 
                      ...

               CORAM:   S.S. SHINDE AND
                        S.M. GAVHANE, JJ.

DATE OF RESERVING JUDGMENT : 30TH JUNE,2017.

DATE OF PRONOUNCING JUDGMENT: 7TH JULY, 2017.

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JUDGMENT [PER S.S. SHINDE, J.]:

This appeal is directed against the

judgment and order dated 30th October, 2000, passed

by the Additional Sessions Judge, Ambajogai,

Dist.Beed in Sessions Case No. 24 of 1999, thereby

acquitting respondent nos.1 to 3 (original accused

nos. 1 to 3) from the offence punishable under

Sections 394, 302, 307 read with 34 of the Indian

Penal Code (for short "I.P. Code").

2. The prosecution case in nut-shell, is as

under:-

A) Sudhakar Gopinath Jadhav, an informant

(PW-9) is resident of Kalwati Tanda, Tq.Ambajogai.

In the year 1998, he was residing along with his

parents, his wife, children and his brothers. On

20th October, 1998 i.e. on the day of Diwali, the

informant (PW-9) and his family members took

dinner at their house. The informant's two

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brothers, namely Madhukar (now deceased) and

Shivraj and his mother Dhurabai slept in the

house. After completing the work of cooking, the

informant, his wife and his father slept in

another room. At about 2.00 a.m. because of the

shouts of mother of informant Dhurabai, the

informant and his brother awaken from their sleep.

At that time, the informant saw that, thieves were

running by forcibly taking the nose-ring of his

mother. Madhukar chased the thieves and he caught

hold one thief. As a result of which, the said

thief shouted and other two thieves returned back

and beat Madhukar by means of knife. By that time,

the informant reached to the said place. He and

his brother tried to resist. The thieves were

beating Madhukar by means of knife and sickle.

Because of the said beating, Madhukar fell down on

the ground and became unconscious. The thieves

also beat the informant by means of knife and

sickle. The informant also sustained bleeding

injuries. The informant shouted and then thieves

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ran away.

B) At the time of incident, the thieves were

wearing Sweater and Woolen Caps. The informant

returned to the house. So many persons were

gathered infront of his house. The informant was

taken to Ambajogai in a truck, as he was injured.

Firstly, the informant was taken to Police

Station, Ambejogai. As the informant was having

bleeding injuries, the police asked him to go to

hospital and police proceeded to Kalwati Tanda.

The informant was admitted in S.R.T.R. Government

Medical College and Hospital, Ambejogai.

C) A complaint of the informant was recorded

in the Government Hospital on the same day at

about 9.00 to 10.00 a.m. Crime was registered as

Crime No. 231/1998 under Sections 302, 307, 394 of

the I.P.C. During the investigation, the

statements of witnesses were recorded. Spot and

inquest panchanamas' were drawn. The dead body was

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sent for post-mortem. Post-mortem report was

collected. Injury certificate in respect of the

informant was collected. The accused persons were

arrested. Two weapons were recovered at the

instance of the accused. When search was taken,

the nose-ring and other articles were found in the

house of the accused. Blood stained clothes were

also seized. Seized articles were sent to the

Chemical Analyzer and the chemical analyzer's

report was collected. An identification parade was

conducted. After completion of an investigation,

chargesheet was filed against the accused persons

under Sections 394, 302, 307 read with section 34

of the I.P.C.

D) The Judicial Magistrate, First Class,

Ambajogai committed the case to the Court of

Sessions' as the offence is exclusively triable by

the Court of Sessions.

E) Thereafter, the charge under sections

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394, 307 read with section 34 of I.P.C was framed

against the accused. The same was read over to the

accused and the accused persons pleaded not guilty

and claimed to be tried.

3. After recording the evidence and

conducting full fledged trial, the trial Court

acquitted all the accused for the offence

punishable under Sections 394, 302, 307 read with

34 of the I.P. Code. Hence this Appeal by the

State.

4. The learned A.P.P. appearing for the

State submits that, the evidence of the

prosecution witnesses has not been properly

appreciated by the trial Court. He submits that,

Sudhakar Gopinath Jadhav (PW-9) is an injured

witness and he has identified the accused. He

submits that, even Gopinath Parasram Jadhav (PW-7)

is also an eye witness. Their evidence has not

been properly considered and appreciated by the

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trial Court. He further submits that, there is

recovery of nose-ring. Therefore, he submits that,

the appeal deserves to be allowed.

5. On the other hand, the learned counsel

appearing for respondents invites our attention to

the findings recorded by the trial Court and

submits that, those are in consonance with the

evidence brought on record and the view taken by

the trial Court is possible, therefore, this Court

may not interfere in the impugned judgment and

order. He submits that, there was no light and the

accused were wearing Sweater and Woolen Caps at

the time of an alleged incident. He further

submits that, the identification parade was

conducted belatedly and hence, the said cannot be

relied upon. In support of the said contention, he

pressed into service the exposition of law by the

Supreme Court in the case of Lal Singh and others

V/s State of U.P.1. It is submitted that, the

1 AIR 2004 SC 299

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victim Dhurabai, whose nose-ring was forcibly

pulled, has not been examined by the prosecution.

Therefore, the learned counsel appearing for the

respondents submits that, the appeal filed by the

State deserves to be dismissed.

6. We have given careful consideration to

the rival submissions advanced by the learned

A.P.P. appearing for the State and the learned

counsel appearing for the respondents (original

accused nos.1 to 3). With their able assistance,

we have carefully perused and scrutinized the

entire notes of evidence brought on record by the

prosecution.

7. The prosecution examined Dr. Satyanarayan

Khastayya Goli (PW-8), who conducted the post-

mortem on the body of deceased Madhukar and he

stated the cause of death of deceased as

Haemorrhagic shock due to stab injuries to spleen,

left lung, heart and head. The prosecution has

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also examined Dr. Arun Bapurao Bansode, the

Medical Officer (PW-10) who stated that, Sudhakar

sustained various injuries. But the real question

is who are the real assailants. The prosecution

has examined Sudhakar Gopinath Jadhav (PW-9), and

in his evidence he stated that, he saw three

thieves were running with a bag. He himself and

his brother Madhukar chased the thieves. Thieves

threw the bag and ran away. They chased the

thieves upto the field of Ram Rathod, which is

adjacent to road. Thieves jumped in the said field

from the road. His brother Madhukar also jumped in

the field and caught hold one thief. The said

thief shouted, and therefore, the other two

thieves returned and started beating his brother

Madhukar. They beat his brother by means of sickle

and knife. A blow of sickle was given on the head

of Madhukar, as a result of which Madhukar fell on

the ground. He stated that, again they assaulted

Madhukar on stomach by means of knife, and the

blow of sickle was also given on the head of PW-9.

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A blow of knife was also given on the face of PW-

9, which he tried to avoid, but he sustained the

injury on his nose. He was assaulted by means of

knife on his chest. Knife blow was also given on

his back. Madhukar fell on the ground. He shouted

due to beating and the thieves ran away. Number of

persons were gathered near the house of PW-9. He

sustained bleeding injuries. He was carried to the

hospital. He stated that, the nose-ring worth

Rs.2200/- of mother of informant Dhurabai was

stolen by the thieves. After 3-4 days, he was

discharged from the hospital. Then he stated the

manner in which the identification parade was

carried out. He identified the nose-ring of his

mother.

8. In cross examination Sudhakar (PW-9)

stated that, when he came out of room his father

and two brothers also came out of their room. His

mother went out of room, prior to him. When he

went out of room, Prakash and others were not

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present. Madhukar first chased the thieves. PW-9

also followed Madhukar and he was about 8 to 10

feet infront of him. While chasing the thieves, he

also shouted. There is no house adjacent to road

after the house of PW-9 towards southern side. He

chased the thieves for about 400 feet. When

Madhukar caught hold one thief, he was at a

distance of 5 feet from him. Other two thieves

were at a distance of 20 to 25 feet. When the

thieves were beating to his brother, at the same

time, they were also beating him. It appears that,

though he stated that, he was at a distance of 5

feet from Madhukar, in second breath he stated

that, at the same time, thieves were also

assaulting him at the same spot. In his cross-

examination he stated that, the portion marked `A'

and `B' from his complaint read over to him not

stated by him while lodging the complaint. In his

cross-examination, he stated that, while lodging

the complaint, he has stated that, he awaken and

saw three thieves running and also that, thieves

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threw the bag, which they were carrying, however,

he cannot assign any reason why this is not

mentioned in the complaint. It is admitted by PW-9

in his deposition that, the thieves were wearing

Sweater and woolen caps at night.

9. The prosecution also examined Gopinath

Parasram Jadhav (PW-7), the father of the

deceased. The prosecution has not firmly

established that, he saw thieves and he identified

them during identification parade. PW-7 admitted

in his evidence that, 4-5 days of arrest of

accused, he was called to the police station.

Therefore, possibility that, already he knew the

accused cannot be ruled out.

10. Upon considering the evidence of all the

prosecution witnesses in its entirety, the trial

Court found that, the same suffers from inherent

omissions, contradictions and improvements. The

night of the incident was the night of Amavsya and

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it was dark night. There is no evidence on record

to show that, there was any source of light in

that area.

11. The accused were immediately arrested

within couple of days of the alleged incident i.e.

on 28th October, 1998, however, the Tahsildar

Bharat Nandu Kadam (PW-13) conducted

identification parade after two months of the

alleged incident i.e. on 03.01.1999. There is more

than two months delay in conducting the

identification parade. The Supreme Court in the

case of Musheer Khan @ Badshah Khan and anr V/s

State of M.P.2, wherein in the facts of that case,

identification parade was carried out after three

months from the date of incident, held thus:-

"32. In so far as the identification of A-5 is concerned that has taken place at a very delayed stage, namely, his identification took place on 24.01.2001 and the incident is of 29.11.2000, even though A-5 was arrested

2AIR 2010 S.C. 762

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on 22.12.2000. There is no explanation why his identification parade was held on 24.01.2001, which is after a gap of over a month from the date of arrest and after about 3 months from the date of the incident. No reliance ought to have been placed by the courts below or High Court on such delayed T.I. parade for which there is no explanation by the prosecution." (Underlines added)

In the said judgment it is further observed

by the Supreme Court that, the test identification

parade was conducted after a gap of over a month

from date of arrest and after about 3 months from

date of incident and no explanation is offered by

prosecution for delay. No reliance can be placed

on such delayed identification parade,

particularly, when witness had only fleeting

chance of seeing accused. The Supreme Court also

observed in the said judgment that, the

identification test is not a substantive evidence.

Such tests are meant for the purpose of helping

the investigating agency with an assurance that

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their progress with the investigation into the

offence is proceeding on right lines. It further

appears that, the Tahsildar while conducting the

identification parade has not properly followed

the guidelines/procedure prescribed for conducting

identification parade. At this juncture, it would

be apt to reproduce hereinbelow the guidelines

laid down i.e. Para 16(2)(a) to (p) from Chapter I

of Criminal Manual issued by the High Court of

Judicature at Bombay, for the Guidance of the

Criminal Courts and Officers Subordinate to it in

respect of conduct of test identification parade,

which read thus :-

"16(2)(a)The object of an identification parade is to make sure that the ability of the witness to recognise the suspect has been fairly and adequately tested.

(b) It should be fair and seem to be fair and every precaution must be taken to exclude any suspicion of unfairness or risk of erroneous identification through the witnesses'

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attention being directed specifically to the suspected persons instead of equally to all the persons to be paraded.

(c) The Officer concerned with the case against the suspect, if present, must not take part in conducting the parade.

(d) The parade should be arranged by an officer who is not a police officer.

(e) After the commencement of the identification parade, every thing in respect of it should take place in the presence and hearing of the suspect, including any instruction to the witnesses attending it as to the procedure that is to be adopted.

(f) All unauthorised persons should be strictly excluded from the place of identification parade.

(g) The witnesses should be prevented from seeing the suspect before he is paraded with other persons, and witnesses who have previously seen a photograph or description of the suspect should not be led in

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identifying the suspect by reason of their recollection of the photograph or description, as for instance by being shown the photograph or description, before the parade.

(h) The suspect should be placed among persons (if practicable eight or more) who are as far as possible of the same age, height, general appearance (including standard of dress and grooming) and position in life. Two suspects of roughly of similar appearance should be paraded with atleast twelve other persons. Where, however, the two suspects are not similar in appearance or where there are more than two suspects, separate parades should be held using different person on each parade.

(i) All members of a group of suspects more than two should not be paraded together. There should be more parades than one, each including not more than two. Two suspects of obviously dissimilar appearance should not be included in the same parade. Identification numbers should be concealed.

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(j) The suspect should be allowed to select his own position in the line and should be expressly asked if he has any objection to the persons present with him or the arrangements made. He should be informed that if he so desires, he should have his Advocate (or a friend) present at the identification parade.

(k) The witnesses should be introduced one by one and, on leaving, should not be allowed to communicate with witnesses waiting to see the persons paraded; and the suspect should be informed that he is free to change his position after each witness has left.

(l) The witness should be asked whether the person he has come to identify is on the parade. He should be told that if he cannot make a positive identification, it is open for him to say so.

(m) Generally, a witness should be asked to touch any person whom he purports to identify, but if the witness is nervous at the prospect of having to do that (in case where the witness is a woman or a child who

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has been victim of a sexual or violent assault or other frightening experience) and if prefers not to touch the person, identification by pointing out should be permitted.

(n) If a witness indicates someone, but is unable to identify him positively, this fact should be carefully noted by the officer conducting the parade and every other circumstances, (such as whether the suspect or any other person is identified or not), connected with it should be noted.

(o) If any request is made by a witness, for example to see the suspect with his hat on or his hat off or to see he person walk or to hear the person speak and there being no objection to the person paraded as asked for, the incident should be recorded.

(p) Where a parade has to be held in prison, a prison officer should be present throughout in-charge of the discipline of the prisoners who would take part. Otherwise, the police officer unconnected with the case, ought to be responsible for the parade. It must be

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ensured that the parade is conducted in the same way as a parade outside prison."

There is procedure prescribed in para 16 of

abovementioned Manual for conducting the

identification parades. Clause (iv) and (v) of the

said procedure read thus :-

"(iv) The parade should then be arranged in a room or a place which is such that the identifying witnesses, as well as the persons connected with the Police, should not be able to look into it.

(v) If there is only one accused person to be identified, there should be atleast half a dozen persons placed in the parade. If two accused persons are to be identified, then there should be about 10 or 12 persons in the parade. Not more than two accused should be placed in any single identification parade. Normally, the Police themselves will have called up the persons to be put in the parade; but the Executive Magistrate/Honorary Magistrate should see that they are persons of more or less the same physical appearance , and approximately of the same age, as the person to be identified. It is

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desirable that innocent persons to be mixed should be different for each such parade."

12. It is not known that, whether the

Tahsildar was aware about the aforementioned

guidelines issued for holding the identification

parades. Upon perusal of the clause (iv), while

conducting the parade, the parade should be

arranged in a room or a place which is such that

the identifying witnesses, as well as the persons

connected with the Police, should not be able to

look into it. In clause (v), it is stated that, if

there is only one accused person to be identified,

there should be atleast half a dozen dummy persons

should be placed in the parade. If two accused

persons are to be identified, then there should be

about 10 or 12 persons in the parade. Not more

than two accused should be placed in any single

identification parade. Normally, the police

themselves will have called up the persons to be

put in the parade; but the Executive

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Magistrate/Honourary Magistrate should see that

they are persons of more or less same physical

appearance, and approximately of the same age, as

the person to be identified. It is desirable that

dummy persons to be mixed should be different for

such parade.

13. So far as an alleged recovery/discovery

is concerned, Dhurabai, whose nose-ring was

forcibly pulled by the thieves, was not examined

by the prosecution. She did not sustain any

injuries, and therefore, the allegation that the

nose-ring was forcibly pulled cannot sustain. The

Supreme Court in the case of Lal Singh (supra)

held that, the evidence of an identification has

to be considered in the peculiar facts and

circumstances of each case. Though it is desirable

to hold the test identification parade at the

earlier possible opportunity, no hard and fast

rule can be laid down in this regard. If the delay

is inordinate and there is evidence probabalizing

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the possibility of the accused having been shown

to the witnesses, the Court may not act on the

basis of such evidence. Moreover, the cases where

the conviction is based not solely on the basis of

identification in Court, but on the basis of other

corroborative evidence, such as recovery of looted

articles, stand on a different footing and the

Court has to consider the evidence in its

entirety.

14. The Supreme Court in the reported

judgment in the case of Prakash V/s State of

Karnataka3 in paras 15 and 16 held thus:-

"15. An identification parade is not mandatory nor can it be claimed by the suspect as a matter of right. The purpose of pre-trial identification evidence is to assure the investigating agency that the investigation is going on in the right direction and to provide corroboration of the evidence to be given by the witness or victim

3 (2014) 12 SCC 133

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later in court at the trial. If the suspect is a complete stranger to the witness or victim, then an identification parade is desirable unless the suspect has been seen by the witness or victim for some length of time. In Malkhansingh v. State of M.P. it was held : (SCC pp. 751-52, para 7)

"7... The identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold, or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact."

16. However, if the suspect is known to the witness or victim or they have been shown a photograph of the suspect or the suspect has been exposed to the public by the media no identification evidence is necessary. Even so, the failure of a victim or a witness to identify a suspect is not always factual to the case of the prosecution. In Visveswaran

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v. State, it was held : (SCC p. 78, para 11)

"11....The identification of the accused either in a test identification parade or in court is not a sine qua non in every case if from the circumstances the guilt is otherwise established. Many a time, crimes are committed under the cover of darkness when none is able to identify the accused. The commission of a crime can be proved also by circumstantial evidence."

15. Upon an independent scrutiny and

re-appreciation of entire evidence brought on

record by the prosecution, it clearly emerges

that, there are serious omissions, contradictions

and improvements in the evidence of prosecution

witnesses which goes to the root of the

prosecution case and makes said evidence unworthy

and unreliable. We are therefore of the view that,

the findings recorded by the trial Court are in

consonance with the evidence brought on record by

the prosecution. There is no perversity as such.

The view taken by the trial Court is plausible

view. The Supreme Court in the case of Muralidhar

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alias Gidda and another Vs. State of Karnataka 4 in

para 12 held thus:-

12. The approach of the appellate Court in the appeal against acquittal has been dealt with by this Court in Tulsiram Kanu Vs.State, AIR 1954 SC 1, Madan Mohan Singh Vs. State of U.P., AIR 1954 SC 637, Atley Vs. State of U.P., AIR 1955 SC 807, Aher Raja Khima Vs. State of Saurashtra, AIR 1956 SC 217, Balbir Singh Vs. State of Punjab, AIR 1957 SC 216, M.G.Agarwal Vs. State of Maharashtra, AIR 1963 SC 200, Noor Khan Vs. State of Rajasthan, AIR 1964 SC 286, Khedu Mohton Vs. State of Bihar, [1970] 2 SCC 450, Shivaji Sahabrao Bobade Vs. State of Maharashtra, [1973] 2 SCC 793, Lekha Yadav Vs. State of Bihar, [1973] 2 SCC 424, Khem Karan Vs. State of U.P., [1974] 4 SCC 603, Bishan Singh Vs. State of Punjab, [1974] 3 SCC 288, Umedbhai Jadavbhai Vs. Sate of Gujarat, [1978] 1 SCC 228, K.Gopal Reddy Vs. State of A.P.,

4. 2014 [4] Mh.L.J.[Cri.] 353

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[1979] 1 SCC 355, Tota Singh Vs. State of Punjab, [1987] 2 SCC 529, Ram Kumar Vs. State of Haryana, 1995 Supp [1] SCC 248, Madan Lal Vs. State of J & K, [1997] 7 SCC 677, Sambasivan Vs. State of Kerala, [1998] 5 SCC 412, Bhagwan Singh Vs. State of M.P. [2002] 4 SCC 85, Harijana Thirupala Vs. Public Prosecutor, High Court of A.P., [2002] 6 SCC 470, C. Antony Vs. K.G.Raghavan Nair, [2003] 1 SCC 1, State of Karnataka Vs. K.Gopalakrishna, [2005] 9 SCC 291, State of Goa Vs. Sanjay Thakran, [2007] 3 SCC 755 and Chandrappa Vs. State of Karnataka, [2007] 4 SCC 415. It is not necessary to deal with these cases individually. Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal, the appellate Court must bear in mind the following: (i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of

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acquittal passed in his favour by the trial court, (ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal, (iii) Though, the powers of the appellate Court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate Court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial Court had an advantage of seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate Court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate Court in interfering

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with such conclusions is fully justified; and (iv) Merely because the appellate Court on re-

appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial Court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate Court in the judgment of the trial Court.

[Underlines supplied]

16. Therefore, in the light of discussion

hereinabove, the Appeal filed by the State shall

fail and accordingly, the same stands dismissed.

The bail bonds of the respondents/accused, if any,

same shall stand cancelled.

[S.M. GAVHANE, J.] [S.S. SHINDE, J.] SGA