Anil @ Rasul Sukanu Sori @ Sudhakar Shankar Sori Vs the State of Maharashtra, Thr. Pso Police Station Etapalli, Tah. Etapalli, Dist. Gadchiroli

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2025:BHC-NAG:14466-DB

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, AT NAGPUR.

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Criminal Appeal No. 325 of 2021

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Anil @ Rasul Sukanu Sori, (C-7748/42) @ Sudhakar Shankar Sori Convicted Offender Age : 28 years, Occup. : Labourer R/o : Kejang Tah. Mardpal, P.S. Bayaner, Distt. Kondagaon, (Chattisgarh). … Appellant

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Versus -

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The State of Maharashtra, Through Police Station Officer Police Station, Etapalli, Tah. Etapalli, District : Gadchiroli. … Respondent

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- - - - Mr. R. D. Hajare, Advocate (Appointed) for the appellant Mr. H. R. Dhumale, APP for the State/respondent

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CORAM : ANIL L. PANSARE AND RAJ. D. WAKODE, JJ.

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Date of reserving judgment : 11-12-2025 Date of pronouncing judgment : 18-1 2 2 025

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JUDGMENT (Per : ANIL L. PANSARE, J.)

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The appellant is aggrieved by judgment and order dated 1-2-2021 passed by learned Additional Sessions Judge, Gadchiroli in Sessions Case No. 95/2015 thereby convicting the appellant for the offences punishable under Sections 148, 307 read with Section 149, 302 read with Section 149 and 353 read with Section 149 of the Indian

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Penal Code (IPC). The maximum punishment imposed is life imprisonment for the offence punishable under Section 302 of the IPC. The appellant, however, has been acquitted for the offences punishable under Sections 120-B of the IPC, Section 3/25 of the Arms Act, 1959 and also under Sections 16, 18, 20 and 23 of the Unlawful Activities (Prevention) Act, 1967.

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2. Briefly stated, the facts are as under :-

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The Superintendent of Police, Gadchiroli launched an Anti-Naxal Special Drive at Sub-Division Etapalli, deploying three police teams led by NPC Vinod Hichami, NPC Rajesh Toppo and PSI Dattatraya Kale, comprising 74 constables and two officers, with assistance from Chhattisgarh police personnel. On 22-03-2015, around 4:50 p.m., while crossing the Parlkota river near Musparsi, the police parties were opened fired upon by about 60-70 Naxalites in green uniforms, identified as members of CPI (Maoist). Despite being asked to surrender, the Naxalites continued firing and issued commands to surround the police from the river side. Police personnel responded with controlled and cover firing. During the exchange, NPC Doge Dolu Atram and PC Swarup Amrutkar sustained gunshot injuries and collapsed. Several other officers, including PC Kanna Hichami and NPCs Ramu Kowase, Gomji Mattami, Shankar Kowase, Sadu Pallo, Dinesh

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Alam, Chandrashekhar, Santosh Naitam, Mahadeo Madavi, Yakub Pathan, Ganpat Soyam and Sonu Mattami also suffered injuries. Grenades were launched against Naxalites, teams advanced with cover fire, and the Naxalites eventually retreated into the forest. The firing lasted approximately 30-35 minutes. Empty cartridges of 303 rifles, AK-47s, SLRs and INSAS rifles were found on the spot. Damage was also noted to police weapons and ammunition.

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Police Sub Inspector Dattatraya Kale lodged report of the incident at Etapalli Police Station on the same day i.e. on 22-3-2015 at about 6.00 p.m. Thereupon, the First Information Report (FIR) was registered vide Crime No. 3/2015 for the offences punishable under Sections 302, 307, 353, 143, 147, 148, 149 and 120-B of the IPC and Sections 3/25 of the Arms Act as well as Sections 16, 18, 20 and 23 of the Unlawful Activities (Prevention) Act. He visited the spot, prepared spot panchanama, seized empty cartridges of AK-47 rifle and also 303 rifle and other rifles. He seized clothes of deceased, took skin sample of deceased, blood sample of deceased. Postmortem was conducted. Muddemal was sent to Forensic Science Laboratory (FSL). The appellant was arrested and after collecting evidence, charge-sheet came to be filed.

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The appellant pleaded ‘not guilty’ and claimed to be tried. The prosecution examined 31 witnesses to bring home the guilt of appellant. The defence of the appellant is of false implication.

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According to prosecution, the appellant was arrested on 13-6-2015 in another crime by P.W. 31. It was revealed during the course of interrogation that he was involved in the present crime as well. Accordingly, he came to be arrested in the present crime.

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The trial Court, after having gone through the evidence and documents placed before it and after having heard both sides, held appellant guilty of the offences mentioned above. The said finding is challenged before us.

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We have heard Mr. R. D. Hajare, learned counsel for the appellant and Mr. H. R. Dhumale, learned Additional Public Prosecutor (APP) for the State/respondent. We have gone through the impugned judgment, evidence, documents and other material placed before us. We will refer to the same to the extent necessary to decide whether the identity of appellant is established by the respondent – prosecution. This is the only point that requires consideration, in as much rest of the case of prosecution, even if accepted to be true, the issue revolves

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around identification of the appellant. Thus, occurrence of incident is not really disputed. We will consider the evidence accordingly.

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The testimony of P.W. 7, P.W. 8, P.W. 9, P.W. 10, P.W. 20, P.W. 21 and P.W. 22 is relevant. Their testimony on the point of identification of appellant is almost identical. We will, therefore, reproduce entire evidence of one witness i.e. P.W. 7 which reads thus :-

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“Exam.in chiefby Shri Pradhan, P.P.

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1] On 21-3-2015 I was attached to Special Task Force, C60, Gadchiroli. That day, I was on patrolling in jungle with other police personnels. We went to village Rengawahi first by vehicle. Thereafter we proceeded on foot. When we reached about 1 to 2 k.m. away from that village crossing one river at about 5-30 p.m. the naxalites opened the firing at us in Hiddur forest. We also encountered. The firing lasted for more than half hour. Swarup Amrutkar and Doge Atram, the policemen were killed in firing. Then naxalites flee away. When we searched the spot, we find the empty cartridges of SLR and AK47. Policeman Kanna Hichami had also the bullet shot at his chest. Other 4 to 5 policemen were also injured. The another party was called to support. Then we went to Morewada. In night we stayed where the firing was opened. Next day dead body and injured were brought by chopper at Gadchiroli. They were about 60 to 70 naxalites. They were uttering the names Anil, Sunil etc. Police had recorded my statement.

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Cross-exam by Advocate Shri J.C.Meshram for the accused.

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2] I gave the statement before the police on third day. I do not fluently read Marathi. I do not know the name of officer recording my statement. While giving statement I told that the firing was opened in Hiddur forest. In my statement the word Hiddur forest is not written. It is not true to say that no incident

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as such was happened. It is not true to say that I am deposing falsely.

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Re.Ex. Nil.”

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Same is the evidence of P.W. 8. Evidence of P.W. 9 on the point of encounter is identical. He has named only three naxalites saying that they were taking names of Jyoti, Manko, Dinesh etc. He has not referred to name of Anil. He is the one, who has lodged FIR. P.W. 10 heard names of Ramesh, Rupesh, Prabhakar, Rasul, Yamuna, Jyoti, Mainu, Ramko and Ganglu. He has not named Anil. P.W. 20 has not named Anil but claimed that he can identify him, if shown. The identity of Anil in the Court is, however, not ascertained through this witness. P.W. 21 has taken name of Anil and other alleged naxalites. He identified appellant, who was produced through video conferencing. P.W. 22 has not named Anil in chief-examination but said that he had seen naxalites from close distance and can identify them, if shown to him. He has identified appellant as one of those naxalites.

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Thus, these witnesses have heard that the naxalites were uttering various names one of which was Anil. None of the witnesses has given description of appellant except that all the naxalites were wearing army uniform. Most importantly, appellant was never put to test identification parade.

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The argument is that in such circumstances, identification of appellant directly in the Court will be a weak evidence and finding of guilt ought not to rest on such evidence.

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As against, learned APP submits that absence of test identification parade is not always fatal and that the trial Court has, by relying upon judgment of the Supreme Court, dealt with this issue. He further submits that P.W. 22 has stated that he has seen the naxalites from close distance and can identify them. He has identified the appellant in the Court and, therefore, the identity is clearly established.

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We are not impressed with the argument of learned APP. As such, the law on test identification parade is well settled. The issue of identity is always dependent on the facts of each case. If the witness had an opportunity to see the assailant for substantial period, it is not necessary to hold test identification parade. At the same time, if the facts are such that the witness had not seen the assailant or had seen only glimpses, may be because of the distance, time span of incident etc. the ascertainment of identity during the course of investigation is necessary to gain confidence about proper line of investigation.

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In the present case, the incident has occurred in the evening in dense forest. None of the witnesses have deposed about the

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distance between the police party and the naxalites. The evidence indicates that 60 to 70 naxalites in green uniforms launched sudden attack. During the course of attack, both the parties were hiding themselves behind the trees. During the course of fire, the witnesses have heard the names of few, one of whom is Anil, which is a common name. None of the witnesses have said that they have seen Anil. All of them have said that they have heard name Anil. In the circumstances and in absence of description of the person named Anil, the investigating agency should have ascertained the identity of appellant by putting him to test identification parade. As such, P.W. 22 has deposed that he had seen naxalites from close distance, however, he has not disclosed the distance nor has he heard name Anil. Further, his evidence that he had seen the naxalites from close distance is proved to be an omission. He further admitted that the spot of incident was a dense forest. He also admitted that prior to incident, he had not seen appellant. He has also admitted that he has seen appellant for the first time in the Court through video conferencing.

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Such an evidence, where the witness had no occasion to see the assailants, where his evidence that he had seen naxalites from close distance is an omission, where he has not named appellant to be one of naxalites, where he had admitted that incident occurred in dense forest,

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the identification of appellant in the Court will carry no significance. Such identification cannot be accepted.

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The Investigating Officer in the cross-examination has admitted that amongst others, P.W. 21 did not say before him that he could identify Anil, if shown to him. P.W. 22 has not stated before him that he had seen naxalites from close distance.

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The trial Court has relied upon the judgment of the Supreme Court in the case of Raju Mazi Vs. State of Bihar [2018(6) B.Cr.C. 458 S.C.] wherein the Court held that failure to hold a test identification parade would not make the evidence of identification inadmissible in the Court. The Court further held that weight to be attached to such identification should be a matter for the Courts of fact. The Court then held that in appropriate cases, it may accept the evidence of identification even without insisting for corroboration. Thus, in a given case, the Court may accept identification of accused in the Court for the first time, which will be in other case, it may not. Thus, it would depend on facts of each case whether or not the ascertainment of identity of assailant during the course of investigation would be necessary.

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The facts in the present case, as discussed above, in our considered view would have necessitated identification of appellant during the course of investigation, particularly when the appellant was not arrested immediately, rather, was arrested in different crime and has allegedly admitted his involvement in the present crime. In the circumstances, we are of the view that absence of test identification parade will be fatal to the prosecution case.

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The trial Court has heavily relied on testimony of P.W. 21 saying that his presence at the spot of incident was brought on record by the defence. He has seen naxalites firing upon police and uttering names Anil, Ramko, Sunil, Rasul etc. He deposed that he could identify naxalites, who opened fire against them and accordingly, identified the appellant in the Court. The admission given by this witness that before police he has not stated that he has seen naxalites who were firing on them is ignored on the count that his testimony before the Court discloses material particulars as regards identification of witnesses. The Court then referred to the other material brought on record in the crossexamination which includes that naxalite profiles are being maintained in the Police Department. The police persons are shown photographs of naxalites prior to proceeding for Abhiyan and police do identify each naxalites by name. Based on such cross-examination, the Court held

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that there are good reasons for P.W. 21 to identify the appellant before the Court.

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We find that the trial Court misdirected itself on this count. The appellant has brought these facts on record to argue that the usual practice which is followed while going on Abhiyan is not followed in the present case. The argument is that if such procedure had been followed in the present case, the prosecution witnesses, should have spelt out the same in the chief-examination and accordingly justified identification of appellant. As against, none of the prosecution witnesses have deposed that before going to jungle in the present Abhiyan, such practice was followed. None of the witnesses have deposed that photographs of naxalites were shown and on that basis, they have identified the appellant before the Court.

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We find substance in the argument in as much as it is the prosecution who has to establish identity of appellant before the Court. The cross-examination on the usual procedure could not be taken aid of to justify identification, particularly when the cross-examination was not in respect of present incident. It is not the case of the defence that in the present Abhiyan, such procedure was followed. What the defence has brought on record is usual procedure which is followed to argue that such a procedure was not followed in the present case and,

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therefore, none of the witnesses have deposed about the identification of the appellant on the basis of his profile maintained in the Police Department or on the basis of his photograph shown to the witnesses.

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We may note here that merely because the witnesses have heard, amongst others, the name of Anil, that itself will not be sufficient to hold that the name so taken was of appellant and none else. It is so because firstly, the name ‘Anil’ is quite common and secondly, the description of ‘Anil’ is completely missing. Interestingly, one of the common names of naxalites as heard by witnesses is of Mainu. Same is the name of P.W. 16. Thus, on the basis of name ‘Mainu’, one cannot jump to the conclusion that the name as heard is of a particular person.

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That being so, the appreciation of evidence by the trial Court on this point will have to be rejected, being apparently erroneous. Thus, the prosecution failed to establish identity of appellant. His involvement cannot be established on such a weak piece of evidence.

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Thus the prosecution case fails on the above ground. We, therefore, need not discuss in detail the evidence of other witnesses which is not connected with the identity of appellant. We will, however, briefly describe their role. P.W. 1 is a panch witness to seziure of empty cartridges. P.W. 2 is a panch witness to spot panchanama. P.W. 3 is a

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panch witness to seizure of blood samples. P.W. 4 is a panch witness to seizure of rifle, identification of documents. P.W. 5 is a panch witness to inquest. P.W. 6 is part of police team and stated about opening of fire by naxalites resulting into casualty of two policemen. P.W. 11 to P.W. 17 are villagers. They turned hostile. They denied the incident but admitted that villagers provided food to naxalites under fear. P.W. 18 is Police Constable. He also deposed about the incident and of hearing some of names including that of Anil. In the cross-examination, his evidence that he has seen persons firing from other side is proved as omission. P.W. 19 is Police Head Constable. He also deposed about the incident but did not disclose any name. P.W. 23 is Circle Officer, who prepared spot map. P.W. 24 is Police Naik, who carried bodies for postmortem. P.W. 25 is Police Head Constable, who carried clothes and articles after postmortem. P.W. 26 is Medical Officer, who conducted postmortem of Swarup Amrutkar and confirmed that firearm injuries were the cause of death. P.W. 27 is PSI, who prepared inquest panchanama of deceased. P.W. 28 is Medical Officer, who conducted postmortem on Doge Dolu Atram and confirmed that he succumbed to fire injuries. P.W. 29 is Police Naik, who carried muddemal to FSL. P.W. 30 is the Investigating Officer, who recorded statements and collected the evidence to file charge-sheet. P.W. 31 is API, who arrested appellant in different crime and after his disclosure, was arrested in present crime. Thus, the

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evidence of these witnesses is not relevant to establish appellant’s identity. Their evidence is relevant on occurrence of incident.

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Put altogether, the evidence of prosecution witnesses is not sufficient to establish appellant’s identity as one of the members of naxalites who opened fire on the police team. Such failure with finding of trial Court that prosecution failed to prove that appellant along with absconding naxalites entered into an agreement to kill police personnel will further weaken the prosecution’s version. The prosecution further failed to prove that appellant was in possession of deadly weapons, namely, guns and bullets in contravention of the Arms Act or that he was a member of a terrorist organization and/or possessed deadly weapons and explosives capable of mass destruction.

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Thus, the finding of trial Court that appellant has committed homicidal death of two constables is a finding arrived at on incorrect appreciation of evidence. The appeal is accordingly allowed. Judgment dated 1-2-2021 in Sessions Case No. 95/2015 passed by the Additional Sessions Judge, Gadchiroli is quashed and set aside.

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The appellant shall be released forthwith, if not required in any other case.

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Fees of the counsel appointed for the appellant shall be

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quantified and paid as per the rules.

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(Raj D. Wakode, J.) (Anil L. Pansare, J.)

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wasnik

Anil @ Rasul Sukanu Sori @ Sudhakar Shankar Sori v. the State of Maharashtra, Thr. Pso Police Station Etapalli, Tah. Etapalli, Dist. Gadchiroli

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Anil @ Rasul Sukanu Sori @ Sudhakar Shankar Sori v. the State of Maharashtra, Thr. Pso Police Station Etapalli, Tah. Etapalli, Dist. Gadchiroli

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