Dismissed

State v. N.M. Raut. v Nandkumar Mohan Raut.

Bombay HC13 Sept 2004APEAL/768/1988

Case brief

AI extract

What is this about?

In an appeal against an acquittal for murder and unlawful possession of a firearm, the Court examined the reliability of eyewitness identification, noting contradictions and procedural flaws. The Bench held that the identification evidence was flawed and insufficient to confirm guilt, dismissing the appeal.

What did the court decide?

The appeal was dismissed; the bail bond furnished by the respondent-accused was cancelled.

State vs N.M. Raut. Vs Nandkumar Mohan Raut. — Murder and Culpable Homicide | Bombay HC (2004)

¶1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

¶2

CRIMINAL APPELLATE JURISDICTION

¶3

CRIMINAL APPEAL NO. 768 OF 1988

¶4

The State of Maharashtra. .... Appellant.

¶5

Versus. Nandkumar s/o.Mohan Raut, Victoria Building, Mogal Lane, Mahim, Bombay. .... Respondent. (Org.Accused.)

¶6

Shri F.R.Shaikh, A.P.P. for the Appellant.

¶7

None for the Respondent.

¶8

CORAM ; MRS.RANJANA DESAI, & ABHAY S. OKA, JJ.

¶9

DATED : 13th Sept., 2004.

¶10

ORAL JUDGMENT (Per: Abhay S.Oka, J.).

¶11

This is an Appeal under section 378(1) of the Code
of Criminal Procedure, 1973 taking exception to the
Judgment and Order dated 30th March 1988 passed by the
learned Addl.Sessions Judge, Greater Mumbai. By the
said Judgment and Order, the Respondent-Accused was
acquitted of the offences punishable under section 302

¶12

of the Indian Penal Code ("IPC" for short) and section

¶13

27 of the Arms Act, 1959.

¶14

: 2 :

¶15

2.	The cha	rge	aga	inst	the Re	spond	ent	is that on 21st
June	1984 at	abo	ut	21.15	hours	at		Mughal Lane,Mahim,
Mumbai,	in	front		of	Victoria	Bu	ilding,	the Respondent
committed	murder	of	on	e P	radeep	Nara	yan	Raut by firing
shots	from a	revol	ver	and	thereb	y	commi	tted an offence
punishable	under	se	ction	302	of	the	IPC.	The further
charge	against the		Resp	ondent	is		that	he was in

¶16

possession of and/or used a fire arm in breach of

¶17

section 27 of the Arms Act, 1959.

¶18

3.	The	pros	ecution	examin	ed 11	witnesse	s.	The	case of
the	prosecu	tion	is	that th	e victim	Prad	eep	was	walking
towards	his	home	in	Mogul	Lane on	21st	June	1984.	When
he	came	near	the	Victoria	Building	at	about	9.15	p.m.,
the	Responde	nt-accuse	d	fired	two	shots	at	the	said

¶19

victim Pradeep and ran away. The victim Pradeep was

¶20

transferred to Hospital where he succumbed to injuries.

¶21

4.	Shri	Shaikh,	the le	arned	A.P.P.	has	ta	ken us
through	the	notes	of	evide	nce	and	other	relevant
documents.		He	submitted	that	atleast	one	eye	witness
i.e.	P.W	.No.3	Waman i	dentified	the	Respo	ndent.	He
submitted		that e	vidence of	P.W.	No.3	is very		consistent

¶22

and there is no reason why P.W.No.3 should not be

¶23

believed. He submitted that only conclusion which

¶24

can be drawn after appreciating the evidence is that the

¶25

: 3 :

¶26

guilt of	the	Respondent is es	tablished		beyond	reasonable
doubt.	He,	therefore, submitted	that	the	Appeal	be
allowed and the	Accused be	convicted for an offence
punishable under	section 302 o	f the IPC.

¶27

5.	We w	i	ll no	w refer to the oral evidence	on		record.
P.W.1	Prakash		Ayare	was proceeding on a	motor		cycle
towards	his h	o	use.	On the way to his house	at		Mughal
Lane,	he saw a		crowd	and when he stepped down	to	see	why
the	crowd ha	d	gat	hered, he saw the victim	Prad	eep	lying
injured.	P.W.1		state	d that he new Pradeep	and	he	could
notice	wife of	P	radeep	in the crowd. He	stated	tha	t his
own	brother Sanjay		and	One Shekhar Raut were	also	in	the
crowd.	P.W.1		along	with his brother Sanjay,	the	wif	e of
the	victim and		S	hekhar Raut took the victim	t	o	KEM
Hospital	by a		taxi.	P.W.1 stated that on the		way	to
hospital,	the	v	ictim	Pradeep told him that		he	has
received	bullet		inj	uries and thereafter the	vic	tim	lost
his	consciousness.			P.W.1 contacted Mahim	Police		Station
on	telephone		from	KEM Hospital and s	ubsequen	tly	he
registered	F.I.R.		Noth	ing much turns on the	evi	dence	of
the	said witness		in	so far as the guilt of	the		Accused
is co	ncerned.	P	.W.2	Sanjay Ayare stated that	on	the	way
to	his house,		he	noticed a crowd near	Victoria		building
and	therefore	h	e vis	ited the site. He was	also		knowing
the	victim P	r	adeep	and he along with P	.W.1		Prakash,

¶28

Shekhar Raut and the wife of the victim took the victim

¶29

: 4 :

¶30

to the KEM Hospital.

¶31

6.	P.W.3 Waman stated that he was employed with	Bombay
Telephones	as a Helper and was doing a part time	job
with	Hemers Industry at Sitaladevi Temple Road,	Mahim.
He	stated that he was a resident of Anuradha	Building,
Mughal	Lane, Mahim, Mumbai. P.W.3 Waman deposed t	hat he
was	proceeding on foot from Hemers Industry to	Shivaji
Park	by Mughal Lane. On the way he stopped in	front of
Victoria	Building as he met his friend by name	Sindhi.
He	was talking to his friend while standing	near
dispensary	of Dr.Arun when he saw the victim being	fired
at.	He claims to have seen the offender who fired	the
shots	at the deceased Pradeep. He stated that	the
offender	ran away towards eastern direction after	firing
shots.	P.W.3 claims to have ran behind the	offender
upto	a distance of about 100 feet. He stated that	the
offender	was armed with a pistol. He stopped	chasing
him	after a distance of about 100 feet. P.W.3	further
stated	that no one else tried to obstruct or	apprehend
the o	ffender. P.W.3 described the offender as wea	ring a
black	full pant and full shirt with checks	design.
P.W.3	further added that the full shirt was of a	stripes
design	and that there was a strip of cloth	(patti)
covering	the chin and cheek of the offender. He	deposed
that	the strip of cloth was of black colour and	the
offender	was wearing a white cap. According to h	im the

¶32

: 5 :

¶33

offender’s	height was	about 5 to 6 feet	and	he was	aged
about 30	years.	He described that the		offender	was
having a	fair com	plexion. He identified	the	accused	in
the Court.	He clai	med to have identified	the	accused	in
an identifi	cation parade	held on 15th Nov	ember	1984	in
the Police	station.	In the cros	s-examin	ation	P.W.3
admitted th	at as	the assailant was havin	g a	pistol	in
his hand	he felt	that the assailant was	a	dangerous	man
and ther	efore, he	was frighten	ed.	In	the
cross-examination	he	further admitted that	it	was	not
possible for	him to	state the height of	the	offender	and
that earlier	statement	made that the	height	of	the
offender as	5 to	6 feet was not correct	.	P.W.3	was
shown brack	eted portion	marked "A"	in	his	Police
statement	dated 22	nd June 1984 wherein	it	is r	ecorded
that the A	ccused was	having wheat complex	ion.	He	stated

¶34

that he had told the Police that the accused was of fair

¶35

complexion.

¶36

7.	The	P.W.	No.3	has	deposed	about	the	ident	ification
parade	held	in	the	Mahim	Police	Sta	tion, P	.W.3	has
stated	that he	was	called	to	the	Police	Station	one	hour
before	start	of the	para	de.	He	stated	that he	was	made

¶37

to wait in one adjacent room before he was taken to the

¶38

parade room. He further stated that :

¶39

"It is correct that while I was waiting in

¶40

: 6 :

¶41

the said room the accused was taken by two havaldars from infront of the said room to the parade room. At the time the accused was being taken by two havaldars to the

¶42

parade room I was satisfied that he was the

¶43

offender who had assaulted Pradeep."

¶44

Apart from the fact that the identification parade was held in the Police Station, P.W.3 admitted that he had

¶45

opportunity to see the accused when he was being taken

¶46

to the parade room.

¶47

P.W.4 is Vishnu who is a draftsman in the office of the Executive Engineer, P.W.D. Bombay, has prepared a sketch of the site of incident. P.W.5 is Dilip Godambe who is the Special Executive Magistrate who allegedly held the identification parade. The said witness had described the manner in which the identification parade was held at Mahim Police Station. In cross-examination, the said witness admitted that there is no mention in the panchanama at Exh.21 that he closed the door and the windows of the parade room or that he stood at the door

¶48

of the parade room at the time when the suspect was

¶49

brought from the lockup to the parade room.

¶50

P.W.6 is one Kishore Narayan Raut. He is the brother of the deceased Pradeep. He stated that the

¶51

: 7 :

¶52

deceased	Pradeep	was	resid	ing on	the groun	d fl	oor of	the
building	known	as	Savit	ri Sadan	at Mughal	Lan	e,	Mahim,
Mumbai.	There	i	s a	tin shed	on the rear	side	of	the
said	building	which	wa	s used	as servants	qua	rters.	The
witness	stated	that	the	said	tin shed	was	of	the
ownershi	p of	his	father	and	there is a	garag	e	adjacent
to	the said	tin	shed.	He	stated that	his	father	had
given	the sai	d tin	she	d to	the accused	and	his	father.
After	staying	in	the	said tin	shed for	about	six	months
the a	ccused left	the	tin	shed.	One m	onth	thereafter	the
accused	came	to	his	house a	nd gave a	threat	to	the
witness	and hi	s bro	ther	and on	22nd March	1984	wife	of
the	said	witness	lodg	ed N.C.	Complaint with		the	Mahim
Police	Station		again	st	the	accus	ed.	In
cross-exa	mination	the	w	itness	has admitted	that	he	does
not	remember w	hether	the	accused	at any	time	gave	threat
to	him per	sonally.	H	e also	admitted that	he	was	not

¶53

aware about the talk which took place between his father

¶54

and the accused.

¶55

10.	P.W.7	is	Mat	hew Cos	ma D’	Souza.	He	clai	ms that	he
was	present ne	ar	the	spot	of	incident	and	he	was	sitting
at	the rele	vant	tim	e on	the	platform	of	Gan	pati	Temple
at	Bhaskar	P	atil	Wadi.	He	stated	that	he	heard	sound
like	crackers	fr	om	Mughal	Lane	side	when	he	ran	towards
the	place	of	offe	nce.	At tha	t time	he	saw	one	person
running	towards	B	handar	Galli	with	a	pistol	in	his	hand.

¶56

: 8 :

¶57

He	deposed	that the pe	rson was wearing	a white cap	and
was	being	chased by	one Waman. He	also described	the
offender	as	of wheat	complexion and ha	ving height	of
about	5’-6".	He stat	ed that the offen	der was wearing	a
black	full	pant and	full shirt and that	he was in	a
position	to	identify t	he offender. He	stated that	he
identified		the accused	in identification	parade held	at
Mahim	Police	Station.	In the	cross-examination	he
admitted	that	he was kno	wing the accused	by his name	and
face	even	prior to the	date of incident	as accused	was
residing	at a	distance of	about 2 to 3	minutes walk	from
his ho	use and	that the	accused was known	to him from	his
childhood.		He admitted	that he did	not disclose to	the
Police	that	the accused	was the offender.	He	stated
from	21st	June 1984	till the date of	holding of	the
parade	on	15th Nove	mber 1984 he did	not disclose	to
anyone	that	the accuse	d was the o	ffender. In	the
cross-exam	ination	he stated	that he did	not identify	the
accused	as	offender	in the identification	parade.	He
stated	that	his earlier	evidence in this	respect was	not
correct.	He	stated that	he did not	identify the a	ccused
as	the off	ender in the	parade as he	was frightened.	He
admitted	tha	t during the	period of four	years till	the
date	of	recording of	deposition on 25th	March 1988	he

¶58

did not disclose to any one that the accused is the

¶59

offender.

¶60

: 9 :

¶61

The next witness is P.W.8 Pratap Janardan Kore. He is the real brother of the wife of the victim. He deposed that there was enmity between the deceased and the Accused over the garage in the compound of Savitri Sadan. Except for the aforesaid statement regarding

¶62

enmity between the Accused and the victim nothing turns

¶63

on the evidence of the said witness.

¶64

12. P.W	.9 is	one	Shivaji Jaiwantrao Lah	ade, who	is the
Sub-Inspector	attached	to	the Mahim Police	Station.	He
investigated	the	offenc	e under the super	vision of	one
Shankar Raorane	who	was	the Police Ins	pector attache	d to
the said	Police	Station.	Nothing turns	on his	evidence
in so far	as the	guilt	of the accused	is concerned.	He
has not	been	cross-e	xamined. P.W.10	Dr.Rajesh	Chunilal
treated the	victim	in	KEM Hospital. He	deposed	that
when the	victim	was	brought to the H	ospital he	was
examined by	Dr.Hil	lary	Nazareth. He	deposed	that
surgery on	the	victim	was performed by	Dr.R.D.Bapa	t and
two other Do	ctors.	He	proved the case	papers which	were
produced on	record	as w	ell as the death	certificate.	He
deposed th	at bul	let	injuries on the	victim	were
sufficient in	ordinary	course	to cause death	. P.W.1	1 is
one Shantaram	Dattat	raya	Raorane is the	Police	Inspector
attached to	the	Mahim	Police Station.	He stated	that
the Sub-I	nspector	Lahade	carried out t	he inv	estigation
under his s	upervision.		He also deposed	that the	accused

¶65

: 10 :

¶66

surrendered at the Police Station on 9th November 1984

¶67

in presence of his Advocate.

¶68

13.	We	have	peruse	d the	notes	of	evidence	and	other
relevant	docum	ents	on	record.	So	far	as the	cause	of
death	of	the	victim	is	concerned,	the	re seems	to	be
hardly	any	dispute	that	he	died	due	to bulle	t	injuries
sustained	by	him.		The	defen	ce	Counsel	has	not
cross-exami	ned	Dr.R	ajesh	Ch	unilal	on	this		aspect.

¶69

Therefore, the only question which is to be decided is

¶70

whether the accused fired bullets at the victim or not.

¶71

14.		For	es	tablishing the involvement of the			accused,
the	pro	secution	ha	s heavily relied upon the	evid	ence	of
Waman,		P.W.3.		There are material contradictio	ns	in	the
evidence	of	Wa	man.	In examination-in-chief he	ha	s	given
description	of	th	e	clothes on the person of	the		accused.
He	has	stated	that	the height of the victim was	5	to	6
feet.	H	e	stated	that the accused was	of		fair
complexion.			There	is serious challenge to	his		version
in the	cr	oss-exam	ination	by the defence Counsel.		In	the
cross-exami	nation	P.	W.3	stated that the assailant		at	the
relevant	time	was	at	a distance of about 5 fee	t	from	the
victim	Pr	adeep.		He stated that both the victi	m	and	the
assailant		were	on	his east towards Rautwadi.	H	e	stated
that	on	he	aring	the sound of shots his att	ention		was
drawn		firstly	to	wards the victim and there	after		towards

¶72

: 11 :

¶73

the ass	ailant.	He	stated that he saw	the assailant	only
for	ten sec	onds.	In the cross-examin	ation he	admitted
that	his	earlie	r statement in his	examinatio	n-in-chief
that	the height	of	the accused was 5 to	6 feet was	not
correct.	He		admitted that there was	a strip of	cloth
covering	the	chin	and cheek of the	offender and th	at he
was we	aring a	cap.	He was confronted	with his	statement
recorded	by	the	Police marked "A" in	which he	has
allegedly	stated		that the offender wa	s having	wheat
complexion	.	As	far as identific	ation parade	is
concerned,	he	has	admitted that the same	was held	in
Police	Station	and	when he was waitin	g outside the	room
where	identifica	tion	parade was held,	the accused	was
taken	by two		havaldars to the parade	room and	he
identified	the ac	cused	as the offender at	that time.	It
is	very d	ifficult	to believe the version	of the	said
witness.	When		substantial part of the	face of	the
offender	was	cove	red by a black cloth	and when he	had
seen	the o	ffender	only for 10 seconds	, it cannot	be

¶74

accepted that he was in position to identify the

¶75

offender.

¶76

15.	Th	e onl	y other	w	itness	who clai	ms to	have	seen	the
accused	is	P.W.7	Mathew		D’Souza.	he	also	descr	ibed	that
the	accused	was	having	a	pistol	in his	right	hand	and	he
was	wearing	a	white	cap	and	his chin	and	cheek	s	were
covered	by	a	black	cloth.	H	e gave	the height		of	the

¶77

: 12 :

¶78

accused as 5’-6" and he stated that the accused was wheat complexion. The witness admitted in	of his
cross-examination that he was knowing the accused by	his
name and face prior to 21st June 1984. He	however
admitted that when his statement was recorded by	the
Police on 26th June 1984, he did not inform the	Police
that the Accused was the offender. He admitted	that
till holding of the identification parade on	15th
November 1984 he did not disclose to anybody that	the
offence has been committed by the accused in	the
identification parade. Though in	the
examination-in-chief the witness stated that	he
identified the accused, in the cross-exmaination	he
stated that he did not identify the accused in	the
identification parade. He also admitted that during	the
last four years i.e. from 1984 to 1988 he did	not
disclose to anyone that the accused is the	offender.
The evidence of P.W.7 will have to be o	bviously
disbelieved as he claims to know the accused by name	and
face much prior to the date of offence and admittedl	y he
did not inform the Police when his statement	was
recorded that the Accused herein has committed	the
offence. P.W.7 knew the Accused. He ought to	have
disclosed his name to the Police. In that case	there
would have been no question of holding iden	tification
parade. It is obvious that P.W.7 tried to mislead	the
investigating agency. The identification parade	was

¶79

: 13 :

¶80

held. Even in that parade, he did not identify the accused. Thus this witness is totally unreliable. Identification of the Accused made by P.W.7 is totally worthless.

¶81

16.	In	so	far as the	ide	ntification par	ade	is
concerned,		it is	an admitted pos	ition	that the	same	was
held	in	Police	Station and the	witnes	s had occas	ion	to
see	the	a	ccused even before	the	identification		parade
when	two	Consta	bles took the accuse	d	to the room		where
the	identi	fication	parade was held.		The witn	ess	should
have	been	kep	t in a separate ro	om	from where		suspect
could	not	be	seen by him. P.W	.5	Dilip Godambe	is	the
Special	E	xecutive	Magistrate who		held	iden	tification
parade.		The	cross-examination o	f	the said		witness
discloses	that	pa	nchanama of	the	parade	does	not
disclose	that	he	closed the door	an	d windows	of	the
parade	room	and	that he stood at	th	e door of	the	parade

¶82

room at the time when the suspect was brought from the

¶83

lockup.

¶84

17. I	n	so far	as the	identificat	ion parade	is
concerned,	the	learned	trial Judge	has	rightly held	that
the	same	suffers	from serious inf	irmities.	Firstly	it
is held	at	the Pol	ice Station and	secondly	P.W.3 who	has
allegedly		identified	the accused had	an	opportunity	to
see the		accused	being taken from	the	lockup to	the

¶85

: 14 :

¶86

parade room by two	Constables and he claims to	have
identified the accused	when he was being taken to	the
parade room. The	P.W.No.3 Waman identified the	accused
in the Court. T	he evidence of identification parad	e is
not a substantive evid	ence, but its utility is for	the
purpose of corroboration.	In other words, it	is
utilised for corroboration	of sworn testimony	of
witnesses in Court.	The substantive evidence	of
identification of the	Accused comes when a	witness
identifies the Accused	in Court. The Apex Court in	a
Judgment reported in	(1998) 5 SCC page 105 (	Sk.Umar
Ahmed Shaikh v/s.	State of Maharashtra) held that	when
the accused was alread	y shown to the witness before	the
trial, the identification	of the accused in the	Court
looses all its valu	e and such identification in	Court
cannot be the basis	for conviction. No fault can	be
found with the learned	trial Judge when he discarded	the
evidence of identific	ation parade and the evidence	of
P.W.3 and P.W.7 will	also have to be discarded.	The
identification of the	accused is extremely	doubtful.
Some capital is sought	to be made of the fact that	the
Accused was abscondin	g till 9th November	1984,.
However, that by itself	is not sufficient to prove	the
guilt of the accused. Moreover there is no r the weapon allegedly used by the accused.	ecovery of

¶87

We have perused the impugned Judgment and order.

¶88

: 15 :

¶89

The	view	take	n by the		lear	ned	Sess	ions	Judge	i	s a
possible	view		which can be		take	n	on	the	basis	of	the
evidence	on	record	. Even	if		it	is	pres	umed	that	another
view	is poss	ible	to be taken		on		the	basis	of	eviden	ce on
record,	in	an	appeal agai	nst		ac	quittal,	the	view		which
favours	the		accused will h	ave		to	be	acce	pted.	In	the
circumsta	nces,	there	is no	me	rit		in th	e	appeal.		The
Appeal	is	di	smissed. The		bail		bond	furni	shed	by	the
Responde	nt-Accused		pursuant	to		a	ction	und	er	section	390

¶90

of the Code of Criminal Procedure, 1973 stands

¶91

cancelled.

¶92

(Smt.Ranjana Desai, J.)

¶93

(Abhay S.Oka, J.)

State v. N.M. Raut. v Nandkumar Mohan Raut.

Case brief

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What did the court decide?

State v. N.M. Raut. v Nandkumar Mohan Raut.

Case brief

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What did the court decide?

What the court decided

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