High Court dismissed State's appeal against criminal acquittal, holding identification evidence unreliable due to impropriety in police station parades and witness inconsistencies.
Appeal against acquittal dismissed; original order dated 07/06/1996 setting accused acquitted is upheld.
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.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.528 OF 1996
The State of Maharashtra … Appellant / (Orig. Complainant)
Versus
CORAM :- INDRAJIT MAHANTY & SARANG V. KOTWAL, JJ. DATE :- JANUARY 08, 2019
Nesarikar
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JUDGMENT (PER : SARANG V. KOTWAL, J.) :-
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On 10/02/1999 P.W.1 Kishor Prabhakar Mastakar was
travelling in his car along with his two employees. He was carrying an amount of Rs.4,14,906/- for depositing it in a bank. When their car reached at V.R. Desai Road, Linking Road, one jeep intercepted them. Three persons came out of the jeep. Two were carrying choppers and was one carrying a hockey stick. There were others in the jeep. Out of these three, one person with chopper wielded his weapon to prevent the members of public to intervene. The other person carrying a chopper broke windshield of the car and took away the bag containing the cash amount. The person carrying a hockey stick assaulted one of the employees. After taking away the money, all of them went away in their jeep. The incident took place in the morning. The FIR was lodged immediately by Kishor Mastakar at bout 09.55 a.m. at Oshiwara Police Station, vide C.R.No.110/92. The investigation was conducted. During investigation it was revealed that the accused in C.R.No.28/92 and 359/92 registered at N.M. Joshi Marg Police station were the
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culprits in the C.R.No.110/92 of Oshiwara Police Station. Therefore these accused were taken in custody in connection with C.R.No.110/92 of Oshiwara Police Station under transfer warrants. The accused/Respondent No.1 was arrested in the present crime on 25/05/1992. Accused/Respondent No.2, 3 and one more accused namely Sadiq were shown arrested on 23/06/1992 and the accused No.4 was shown arrested on 07/07/1992. Aforementioned Sadiq absconded subsequently and did not face the trial.
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weapons involved in the crime. After completion of the investigation, the charge-sheet was filed and the trial was committed to the Court of Sessions.
P.W.1 Kishor Prabhakar Mastakar was the victim
whose cash amount was stolen. P.W.2 Ankush Pundalik Chavan, and P.W.3 Sankatha Prasad Faujadar Pathak were the employees of P.W.1. These three were travelling together. P.W.4 PSI Ramchandra Keshav Gade had recorded the complaint. P.W.5 Dwarkabhai Maganbhai Patel was the owner of the jeep in which the offenders had travelled and intercepted P.W.1's car. His jeep was stolen by the offenders before the present incident. P.W.6 Vishnu Yeshwant Khushe was the Special Executive Magistrate, who had conducted the Test Identification Parades dated 30/05/1992 and 14/07/1992. P.W.7 Mahendra Yashwant Chikhalikar, was another Special Executive Magistrate who had conducted the Test Identification Parade dated 30/05/1992. P.W.8 PI Rupsing Singa Tadwi was the Investigating Officer.
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first informant. He was owning a Petrol Pump situated at Oshiwara, Mumbai. On 10/02/1992 at about 09.30 a.m. he collected the cash from his Petrol Pump in two bags and proceeded towards his bank in his Fiat Car along with his cashiers Ankush Chavan and Sankata Prasad Pathak. The cash amount of
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Rs.4,14,905/- was kept in two separate bags. P.W.1 Kishor Mastakar was driving and P.W.2 Ankush Chavan was sitting next to him. His other employee was sitting on the rear seat. When they reached near Sundar Nagar on Link Road, they were intercepted by a jeep bearing registration No.MH-01-1759. According to P.W.1, two persons came out. One was having a chopper and the other was having a hockey stick. The third person alighted from the jeep with chopper. One of them with the chopper broke the windshield of the car. The one with hockey stick broke left side window glass and backside glass with his hockey stick. P.W.1 has further categorically stated in his deposition that the person with a hockey stick took away one bag out of the two bags which were kept on the front seat of his fiat car. P.W.1 has further deposed that because of the splinters of windshield and glass window, he sustained injuries on his face and hand. Chavan was assaulted with hockey stick. He suffered injury on his left shoulder. The third person with a chopper was preventing the public from helping victims. After that the culprits went away from the spot in their jeep. P.W.1 then went to police station and lodged his FIR. The
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actual amount which was stolen in one of the bags was to the tune of Rs.3,13,905/-. He further stated that he had noticed that there were in all 8 persons in the jeep including the three who had got down. P.W.1 has further deposed that the accused No.2 was the person with hockey stick. The person who broke the windshield was not before the Court. According to the prosecution case he was the absconding accused Sadiq. Third person who was having chopper was identified as accused No.4 by these witnesses. P.W.1 has further deposed that the accused No.3 was driving the jeep and the accused No.1 was sitting on the rear seat. He has further deposed that on three occasions as mentioned earlier, he was called to police station for the purpose of identifying suspects and he had duly identified the accused during the Test Identification Parade. In the cross-examination some important discrepancies and contradictions from his FIR vis-a-vis his depositions were pointed out to him. He could not explain those contradictions. He had not mentioned about the third person who was carrying a chopper having got down from the jeep. Importantly, according to his case in the FIR, the accused with the chopper had taken away
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the bag from his seat, whereas in his deposition he has clearly attributed this role to the accused carrying hockey stick. In his cross-examination he has deposed that in the month of May 1992 he had identified two accused in the Test Identification Parade. Similarly, according to him he had identified two more in June 1992 and one in July 1992. This again is contrary to the other evidence on record, which shows that in May 1992, he had identified one accused; in June, he had identified three accused (one of them was absconding during trial) and on the third occasion he had identified accused No.4 only. The FIR lodged by him is produced on record at Ex.17. In his FIR he has stated that his companion Chavan was dragged out of car and was assaulted with a hockey stick.
was travelling with him. He was sitting in the front seat next to P.W.1. He has deposed about the incident. According to him, two persons got down from the jeep. One was carrying a chopper. Accused with the chopper broke the windshield and the accused
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with hockey stick broke window glass on this witness's side. P.W.2 sustained blow of that stick on his left shoulder. Accused with a chopper took away the bag and then all accused ran away in their jeep. He has identified the accused No.2 as the person with the hockey stick. He did not identify others. He has deposed that in June 1992 he identified accused No.2 at the police station in a Test Identification Parade. He has admitted in his cross-examination that he had attended the Court for about 10-12 times before his deposition was recorded and he had seen all the accused.
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station. Hence the possibility cannot be ruled out that the accused were shown to these witnesses by the police. Subsequently, the Test Identification Parade was conducted at the Oshiwara Police Station itself. It was conducted on the first floor. The Lockups were on the ground floor.
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“16. We strongly deprecate the practice of conducting identification at police station; a practice which we are informed at the Bar, is only prevalent in Greater Bombay. The sooner it is abandoned the better it is because, the probability of the suspects being shown to the witnesses prior to the test identification is always there at the police station. At any rate, on account of such a practice, there is always a lurking suspicion in the mind of the court that the witnesses might have seen the suspects prior to the test identification.
17. In order to make identification evidence beyond reproach, it is high time that an end is put to the practice of holding of identification at police station and identification parades instead are held in jail. This practice would not only enable the police to wash the stigma of showing suspects prior to their identification, a stigma which more than often is unfounded but has manifold other advantages. Jails have a large population these days. It would be easy there to find persons similar to the suspects sought to be put for identification. Such similar persons have to be mixed with the suspects at the time of identification.
The identification in jail would not only
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actually be free from any taint or suspicion but equally importantly it would also appear to be so. It would instill a sense of confidence both in the minds of the suspects sought to be put for identification as well as the Court......”
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identification parade. In June the parade was held in respect of accused Nos.2, 3 and Sadiq and in July 1992 it was held in respect of accused No.5. This contrary stand of the P.W.1 was not explained by the prosecution. Thus, the entire evidence in respect of the identification of the accused is not satisfactory.
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Bardeskar in assisting the Court.
(SARANG V. KOTWAL, J.)
(INDRAJIT MAHANTY, J.)
Colour shows how this judgement treated each authority
Ramcharan Bhudiram Gupta and other Vs. The State of MaharashtraReferred¶58
Ramcharan Bhudiram Gupta and other Vs. The State of Maharashtra 1995 (1) ALL MR 122
The State of Maharashtra
Alex @ Taklya Francis Dias
Asgarali Abdulali Khan
Joseph Mariya Prekaram Chattiyar
Indrajit Mahanty
Sarang V. Kotwal
As recorded by the court registry
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