High Court allowed appeal against conviction for dacoity under IPC 392/395. Court quashed conviction as identification evidence was unreliable due to prior police show-up and absence of corroborative discovery evidence.
Conviction and sentence set aside; appellants acquitted; bail bonds cancelled; fine refunded if paid.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
AJ-543.93
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE - CRIMINAL
CRIMINAL APPEAL NO.543 OF 1993
1. Somnath Mahadu Pawar,
Age 32 yrs.
2. Ratan Mahadu Pawar,
Age 24,
3. Suresh Mahadu Pawar,
Age 35,
4. Bhagwan Rajaram Pawar,
Age 25,
All labourers. Appellant
Nos.1 to 3 are resident of
Jakhori, Tal. & Dist. Nashik
& Appellant No.4 is resident
of Kalwi, Tal. & Dist.
Nashik..... Appellants
- Versus -
State of Maharashtra.... Respondent
Shri Kiran Bapat for the Appellants.
Ms P.P. Shinde, Additional Public
Prosecutor, for the State.
CORAM: R.C. CHAVAN, J.
DATED: MARCH 23, 2011
ORAL JUDGMENT:
1.This appeal is directed against the
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conviction of the appellants by the learned
Additional Sessions Judge, Nashik for the
offences punishable under Sections 392 and 395
of the Indian Penal Code (for short, "the IPC")
and sentence of RI for seven years and fine of
Rs.1,000/-, or in default RI for one year,
imposed upon them on completion of Sessions
Trial No.5 of 1993 before the learned
Additional Sessions Judge. The learned Judge
also convicted the appellants Ratan Mahadu
Pawar and Suresh Mahadu Pawar for the offence
punishable under Section 397 of the IPC and
sentenced them to RI for seven years.
2.Facts which are material for deciding
this appeal are as under:
On 17-9-1991, on the Nashik-Pune
highway within the precincts of village
Mohadari in Sinnar Taluka, fifteen persons
stopped vehicles proceeding by the highway and
robbed the occupants of their valuables. The
occupants of the vehicles were also injured in
the assaults so launched. Cash and valuables
worth Rs.1,13,575/- were taken away from the
victims. A police patrol party was contacted
and it soon arrived at the spot. One of the
victims Kerba gave a report on which an offence
3 AJ-543.93
was registered. Curiously, some of the articles
robbed, including cash, were stated to have
been found at the spot itself. Two suspects
were also found at the spot. A dog squad was
also called. In the course of the
investigation, the police recorded statements
of witnesses, arrested the appellants and five
other persons, who had been put to trial along
with the appellants, and charge-sheeted them
for their involvement in dacoity along with
five absconders. One of the miscreants was
stated to have expired.
3.Upon receipt of the charge-sheet, the
learned Judicial Magistrate, First Class,
Sinnar, committed the case to the Court of
Sessions at Nashik where the learned Additional
Sessions Judge, to whom the case was assigned,
charged the appellants along with five others
of the offences punishable under Sections 395
and 397 of the IPC. Since they pleaded not
guilty, they were put on trial at which the
prosecution examined in all eleven witnesses in
order to bring home the guilt of the accused
persons. After considering the evidence
tendered in the light of the defence of denial,
the learned Additional Sessions Judge convicted
and sentenced the appellants, as afore-
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mentioned. Aggrieved thereby, the appellants
are before this Court.
4.I have heard the learned counsel for
the appellants and the learned APP for the
State. With the help of both the learned
counsel I have gone through the record. PW-1
Sunanda and her husband PW-3 Wastupal were
travelling in one of the vehicles and so were
PW-4 Fulchand Bhandari and his wife PW-5
Chandrakala in another vehicle. PW-2 Kerba was
also a passenger in one of the vehicles. All of
them state that on the incidental evening their
vehicles were stopped and some unknown
miscreants beat them up and robbed them of
their cash and valuables. PW-2 Kerba gave a
report on the basis of which an offence was
registered. PWs-6 and 7 are Doctors Sunil More
and Pitamber Jadhav, who examined the victims
and found that the victims had suffered several
injuries, none of which was grievous. PWs-9 and
10 are Naib Tahsildar Shahane and Tahsildar
Sonawane before whom test identification
parades were held. PW-8 Malode and PW-11 Saikar
conducted the investigation.
5.PW-2 Kerba had identified accused No.2
Ratan Mahadu Pawar, accused No.3 Suresh Mahadu
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Pawar and accused No.8 Bhagwan Rajaram Pawar
before the Court. However, he was not made to
identify any of these persons at the test
identificationparadeheld.So,his
identification of the three appellants in the
Court has a diminished value. The evidence
about the identification parade held by PW-9
Naib Tahsildar Shahane need not be considered
since the witness Deepak Dattatray Joshi, who
is supposed to have identified a miscreant at
that parade, was not examined at the trial.
PW-10 Tahsildar Sonawane stated that one Manoj
Bhandari, who has not been examined, identified
the appellant Ratan Mahadu Pawar and Shrinivas
Fulchand Bhandari, who has also not been
examined, identified Jagannath Mahadu Pawar. He
states that Abdul Karib Baig Mirza, who has not
been examined, identified Ratan Mahadu Pawar.
Witness Shaikh Sikander Bhai did not identify
any of the accused. Deepak Joshi identified
Uttam Eknath Pawar, but Deepak Joshi has not
been examined. Wastupal, who has been examined
as PW-3, was called to identify the accused but
did not identify anyone. PW-4 Fulchand Bhandari
identified Ratan Mahadu Pawar and PW-5
Chandrakala identified Somnath Mahadu Pawar. On
the basis of this identification, the learned
Additional Sessions Judge has held the
6 AJ-543.93
identification of the accused by the witnesses
before the Court to be reliable. The learned
counsel for the appellants pointed out that
though PW-4 Fulchand Bhandari was hesitant in
admitting having been shown the miscreants at
Sangamner police Station and stated that he saw
only one accused person at Sangamner police
Station and so did his wife and son, his wife,
PW-5 Chandrakala was candid in admitting in the
cross-examinationthatbeforethe
identification parade was held at Sinnar, the
police had brought the accused and showed the
accused to them at Sangamner by calling her,
her husband, two sons and drivers at the police
station. Thus, the entire effect of the
identification parade held by PW-10 Tahsildar
Sonawane gets washed off. As rightly pointed
out by the learned APP, it is not necessary
that the evidence of substantive identification
before the Court must always be supported by
test identification parade in order to support
the conviction. In that case such a shaky
identification would have to be corroborated by
some other piece of evidence, like discovery of
articles from the concerned miscreants. In this
case, there is no discovery from any of these
appellants and therefore it was hazardous for
the learned Additional Sessions Judge to have
7 AJ-543.93
relied on such an identification which had
preceded the police having shown to the
witnesses the accused persons before the test
identification parade was held.
6.The evidence of PW-8 API Malode, who
seems to have reached the spot immediately
after the incident, is also curious. He seems
to have arrested two persons on the spot and
also stated that the dog squad, which had been
called, had in fact pointed to one of those
persons. Those persons have been discharged
under Section 169 of the Criminal Procedure
Code and have not been put on trial. There may
be excellent reasons with the I.O. for doing so
but unfortunately they have not been clarified
in the depositions of both the I.Os. API Malode
also states that curiously when he performed
the panchnama on the next morning, some suit
cases and even cash were found on the spot
which he returned to the persons who were
robbed. In the absence of anything which would
independently connect the appellants to the
crime, the appellants could not have been held
guilty on the basis of their identification by
the witnesses in the Court, particularly when
at least one witness states that the accused
persons were shown to the witnesses in the
8 AJ-543.93
police station at Sangamner before the test
identification parade so held at Sinnar.
7.In view of this, the appeal is
allowed. The conviction of the appellants for
the offences punishable under Sections 392 and
395 of the IPC and the sentence of RI for seven
years and fine of Rs.1,000/-, so also the
conviction of appellants Ratan Mahadu Pawar and
Suresh Mahadu Pawar for the offence punishable
under Section 397 of the IPC and the sentence
of RI for seven years, imposed upon them are
set aside. They are acquitted of the said
offences. Their bail bonds stand cancelled.
Fine, if paid, be refunded to the appellants.
Sd/-
(R.C. CHAVAN, J.)
2 issues framed by the court
Whether conviction can be sustained based on court identification when witnesses were previously shown accused by police and no discovery links appellants to crime.
Whether lack of independent corroborative evidence like discovery of stolen goods vitiates the identification evidence relied upon for conviction.
3 provisions across 2 enactments
Somnath Mahadu Pawar
Ratan Mahadu Pawar
Suresh Mahadu Pawar
Bhagwan Rajaram Pawar
State of Maharashtra
R.C. CHAVAN
As recorded by the court registry
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