Allowed

Sunny Mannikam Nadar v. the State of Maharashtra

Bombay HC19 Oct 2013APEAL/491/2005

Case brief

AI extract

What is this about?

The High Court allowed an appeal against a conviction for joint robbery. Finding serious doubts about the test identification parade, the absence of an eye witness, and irregularities in recovery under section 27 of the Evidence Act, the court acquitted the appellant.

What did the court decide?

The judgment and order of the Additional Sessions Judge setting conviction and sentence were set aside, and the fine was to be refunded.

Sunny Mannikam Nadar Vs the State of Maharashtra — Criminal Trial and Appeal | Bombay HC (2013)

¶1

¶2

app491.05

¶3

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

¶4

CRIMINAL APPEAL NO.491 OF 2005

¶5

Sunny Mannikam Nadar Residing at Old Hanuman Nagar, Khar Danda, Khar (West), Mumbai 400 052 .. Appellant.

¶6

Vs.

¶7

The State of Maharashtra through Khar Police Station Mumbai .. Respondent.

¶8

Ms. Priyanka Joshi, advocate appointed for the appellant. Ms. A. A. Mane APP for the respondent.

¶9

CORAM : A. H. JOSHI, J.

¶10

DATED : 19TH OCTOBER, 2013.

¶11

JUDGMENT :

¶12

Heard both sides and perused the record.

¶13

In all four accused were charged for the offence punishable under sections 392 read with section 397 of the Indian Penal Code.

¶14

Two accused died one before and one during the trial. The trial has proceeded against accused no.2 – present appellant and accused no.3 – Santosh.

¶15

This appeal is preferred by only one person i.e. accused

1/6

app491.05

no.1.

As per version of the prosecution four accused persons entered house of P.W.1 – Anil (Exhibit.10) on 18th August 2001 at 5.30 pm, threatened P.W.1 and servant Laxmi at the point of deadly weapon (chopper and knife respectively) and demanded to disclose where money was kept. They searched house and took away articles, namely, one table clock, one wrist watch, chess board and two landline telephone instruments.

¶20

Statement of the complainant – P.W.1 is the FIR. In said statement, he has given detailed narration about description of accused persons.

¶21

The prosecution has examined P.W.1 – Anil as witness of the incident, one panch witness, Investigating Officer and Special Executive Officer to prove test identification parade.

¶22

The trial has ended in conviction and sentence, hence this appeal.

¶23

Learned Advocate for the applicant appointed by this court advanced submissions which are summarised as under :-

¶24

(a) Complicity of involvement of the appellant is not proved beyond reasonable doubt.

¶25

2/6

¶26

app491.05

¶27

(b) Identification of the appellant as accused who had entered the house of P.W.1 complainant, and that they had committed robbery, was not proved beyond reasonable doubt.

¶28

¶29

(d) Special Executive Officer also admitted that he had not read the rules and guidelines for holding test identification parade and he also admitted that he did not enquire with the complainant at any time that whether the accused were exposed to him before the parade.

¶30

(e) In the evidence, the investigation office had admitted that the appellant was arrested on 22nd August, 2001. The alleged memorandum panchnama in respect of the appellant and seizure panchnama are dated 21st August, 2001. This fact brings memorandum statement of the accused and the recovery under doubt.

¶31

(f) The evidence regarding recovery and use of knife and watch as the knife comes under doubt. Since and watch Article.5 never produced before the court was not shown to the complainant – to prove identity of these articles.

¶32

(g) The wrist watch of “Gooci” make has been recovered under the panchnama Exhibit.18 whereas according to the complainant wrist watch of

¶33

3/6

¶34

app491.05

¶35

“Rolex” make has been stolen. Therefore, the recovery of stolen property is not proved, and this fact brings all other recoveries under cloud of doubt.

¶36

(h) Prosecution has not examined material witness i.e. maid servant Laxmibai. The said witness was not examined by the prosecution nor she was called for test identification parade.

¶37

(i) The manner in which entire story is couched and the trial is conducted leads to an impression that the prosecution has for undisclosed reasons advanced the case half heartedly and by suppressing some thing.

¶38

(j) The defence of appellant that he is falsely implicated by the police over demand of gratification.

¶39

Perusal of the record reveals that :-

¶40

(a) The incident had occurred on 18.8.2001.

¶41

(b) The accused was arrested is done on 22nd August, 2001.

¶42

¶43

(d) The test identification parade is conducted by Special Executive Officer on 14th September, 2001.

¶44

4/6

¶45

app491.05

¶46

While test identification parade is criticized to be unbelievable on the ground that Special Executive Officer has failed to depose and ensure that witness has no occasion to see the accused due to certain reasons. The fact of identification comes under serious cloud of doubt due to facts namely :-

¶47

(a) P.W.5 the Investigating Officer has categorically admitted in paragraph 3 that accused no.2 (present appellant) was arrested on 22nd August, 2001.

¶48

(b) The arrest is dated 22nd August, 2001, it is not explained why the test identification parade was delayed upto 14th September, 2001.

¶49

(c) It is prosecution story that the accused had caught hold of Laxmi by holding her hairs and had also manhandled her. Therefore, Laxmi, is an eye witness of the incident.

¶50

(d) No explanation is coming forward as to why Laxmi was not called to identify the accused persons as well as witness of incident.

¶51

(e) In all four accused were to be identified, total number of dummies were 24. In the result, ratio of dummies turned out to be six per accused since four accused were to be identified.

¶52

(f) Necessary consequences of violation of ratio

¶53

5/6

¶54

app491.05

¶55

is that the guidelines described in criminal manual relating to conduct of identification parade accused are not followed, therefore, identification parade is vitiated.

¶56

In the aforesaid background, not only that the recovery of chopper from custody of accused comes under serious doubt, rather it will be extremely risky to believe recovery even of all other articles becomes a craft work than genuine discovery and recovery under section 27 of Evidence Act.

¶57

Therefore, as collective effect of the facts namely :-

¶58

(a) Recovery under section 27 is not good; and (b) The test identification parade is doubtful; and

¶59

¶60

In the result appeal is allowed. The judgment and order dated 15th March, 2005 passed by the Additional Sessions Judge, Bombay is set aside. Fine amount if paid be refunded.

¶61

The advocate appointed by this court shall be paid from legal aid a sum of Rs.3,000/- within 30 days.

¶62

(A. H. JOSHI, J.)

¶63

6/6

Sunny Mannikam Nadar v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Sunny Mannikam Nadar v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

The State of Maharashtra Vs Kishor Thanmal Kothari and Ors.

Nitin Ramdas Sonawane Vs the State of Maharashtra

Vilas Hari Rupvate Vs the State of Maharashtra

Sudam Hirya Chavan Vs the State of Maharashtra

Mansoor S. Shah Vs Daisy Damania and Anr.

Malanbai Janardan Sathe Vs the State of Maharashtra