Common Judgment: (N.R. Borkar, J.)
1. Both these appeals are filed against one and same judgment and order dated 12.05.2016 passed by the Sessions Judge for Greater Bombay in Sessions Case No. 436 of 2011 Both these appeals were therefore, heard together and are being disposed of by this common judgment.
2. The appellant in Criminal Appeal No. 611 of 2016 and the appellant in Criminal Appeal No. 612 of 2016 were accused Nos.3 and 4 respectively before the trial court. The appellants with three more co-accused were tried for the offences punishable under section 302 read with 120-B of the Indian Penal Code (for short IPC), section 3 read with 25 of the Arms Act and section 37 read with 135 of the Bombay Police Act.
3. By the impugned judgment and order the trial court convicted both the appellants for the offence punishable under section 302 read with 34 of the IPC and sentenced them to suffer imprisonment for life and to pay fine of Rs.50,000/- each, in default, to suffer further Rigorous Imprisonment (R.I.) for six months. The appellants have been further convicted for the offences punishable under section 3 read with 25(1-B) of the Arms Act and section 37 read with 135 of the Bombay Police Act and sentenced to suffer R.I. for one year and to pay fine of Rs.10,000/- each, in default to suffer further R.I. for one month. The trial court, however, acquitted the original accused Nos.1, 2 and 5 of all the charges.
4. The deceased Ajit Yerunkar was bodyguard of PW-28 Manish Dholakia. PW 28 was a Builder and his office was at Sharda Chambers, New Marine Lines, Mumbai. PW-1 Jayshree Kardak was working in the office of PW-28 as Receptionist. PW-2 Babu Sonawane was another body guard of PW-28. PW- 3 Hasmukh Khetalpar was working as Manager in the office of PW-28.
5. The incident took place on 8.2.2011. It is alleged that on the day of incident at about 3.30 to 3.45 p.m., accused Nos.3 and 4 came to the ofce of PW-28. They made enquiry with PW-1 as to whether PW-28 has come in the office or not. PW-1 asked their names and from where they had come. Accused Nos.3 and 4 told her that they had come from Pune to meet PW-28. She then asked them to sit and called PW-3 Hasmukh, and told him to inform PW-28 that two persons had come to meet him from Pune. PW-3 then went inside the chamber of PW-28 to inform him accordingly.
6. It is alleged that while the accused Nos.3 and 4 were standing at the office reception, PW-1 saw a pistol in the back pant pocket of accused No.3. She thus started shouting. On hearing shouts of PW-1, other employees came out and thus the accused Nos.3 and 4 started running outside. The deceased Ajit Yerunkar and PW-2 Babu followed them to apprehend them. It is alleged that while the deceased Ajit and PW-3 Babu were following accused Nos.3 and 4 at that juncture, accused No.3 fired from his pistol at the deceased. The said bullet, however, did not hit the deceased. It is alleged that accused No.3 again fired at the deceased and this time the bullet hit the right side chest of the deceased due to which, the deceased collapsed. It is alleged that accused Nos.3 and 4 could not be apprehended and they succeeded in running away from the office of PW-28. The deceased was taken to the Bombay Hospital. However, he died on the same day.
7. The report in relation to the incident was lodged and crime was registered. During the course of investigation, it was revealed that a conspiracy was hatched to eliminate PW-28 and accused Nos.3 and 4 were hired to kill PW-28. On completion of investigation, the charge-sheet was filed against in all five accused for the offences punishable under section 302 read with 120-B of the IPC, section 3 read with 25(1-B) of the Arms Act and section 37 read with 135 of Bombay Police Act.
8. All the accused were charged and tried for the above stated offences. The trial court, as stated earlier, by the impugned judgment and order convicted the accused Nos.3 and 4 for the offence punishable under section 302 read with 34 of the IPC, section 3 read with 25(1-B) of the Arms Act and under section 37 read with 135 of Bombay Police Act and acquitted rest of the accused.
9. The State has not filed appeal against the acquittal of accused Nos.1, 2 and 5.
10. We have heard Dr. Yug Mohit Chaudhry, learned counsel for the appellant in Appeal No. 611 of 2016, Mr. Aniket Vagal, learned counsel for the appellant in Appeal No. 612 of 2016 and Ms P.P. Shinde, learned APP for the Respondent – State in both the appeals.
11. The trial court to convict the present appellants/ accused Nos.2 and 3 has relied upon the evidence of the following witnesses;
(i) PW-1 Jayshree Kardak, eye-witness;
(ii) PW-2 Babu Sonawane, eye-witness;
(iii) PW-3 Hasmukh Khetalpar, eye-witness; and
(iv) PW-29 Narayan Kulkarni, Special Executive Magistrate, who conducted the test identification parade of the accused Nos.3 and 4.
12. PW-1 Jayshree Kardak has stated in her evidence that she was working in the office of PW-28 as Receptionist. Her office hours were from 11.00 a.m to 7.00 p.m.. She has stated that the deceased Ajit was working as bodyguard of PW-28.
13. According to her, on the day of incident, she came to the office at about 12.00 to 12.45 p.m.. PW-28 Manish came to the office at about 2.00 to 2.30 p.m.
14. PW-1 stated that at about 3.30 to 3.45 p.m., while she was sitting at Reception, two persons came to their office and they asked her in Hindi whether PW-28 is there in the office. She asked them their names and from where they had come. One of them, told her, his name is Amit and he came from Pune. She told them to be seated. She then called PW-3 and told him to inform PW-28 that someone had come to meet him from Pune. PW-3 then came out and made enquiry with those two persons. He also asked them to sit and then went inside the cabin of PW-28. Those two persons however, did not sit.
15. PW-1 has stated that then she saw the gun in the back pant pocket of one of those two persons. On seeing the gun, she started shouting ‘gun hai gun hai’. Hearing her shouts, her other colleagues came out. Those two persons thus started running outside. The deceased Ajit, PW-2 and PW-3 followed them. She then heard the sound like bursting of crackers. Then she heard shouting. Hence they came out and saw that Ajit was lying in injured condition on the staircase of third floor.
16. PW-1 has further stated that she was called for the test identification parade and in the test identification parade she had identified accused Nos.3 and 4.
17. The learned counsel for the appellants submits that PW- 1 barely saw the assailants for a few moment. It is submitted that in such circumstances, it is impossible for PW-1 to have carefully seen and noted the features and faces of the assailants.
18. It is submitted that PW-1 has admitted that despite being asked by the police, she could not describe the features of the accused persons to the police. It is submitted that if PW-1 was unable to recall and recollect the facial features of the assailants immediately after the incident, then it is impossible for her to identify the assailants more than one month later in test identification parade.
19. It is submitted that according to PW-1 the incident had taken place all of a sudden and she was shaken and frightened. It is submitted that in a moment of panic, the mind is unable to retain visual impressions. It is submitted that under these circumstances, the identification of accused Nos.3 and 4 in test identification parade is utterly unreliable.
20. In support of submission, the learned counsel for the appellants have relied upon the judgment in the matter of Wakil Singh and ors. vs. State of Bihar reported in AIR 1981, SC 1392.
21. In the present case, PW-1 has specifically stated that one of the persons was short and other was tall. The person who was short was somewhat dark in complexion and was wearing jeans pant and green colour T-shirt. The other person who was tall was wearing yellow colour shirt. It is not the case of the defence that PW-1 had given description of the assailants for the first time before the court. It is also not their case that description given by PW-1 does not match with stature and complexion of accused Nos.3 and 4. No doubt, the interaction of PW-1 with assailants was short, however, considering the evidence of PW-1, it cannot be said that she had no opportunity to see the assailants carefully. Considering the facts and circumstances of the case, in our view, the faces of assailants must have got imprinted in her memory. It is thus difficult to assume that the faces of accused Nos.3 and 4 would have got erased from her memory within a period of one month. The submission of learned counsel for the appellants therefore, cannot be accepted. The judgment relied upon in case of Wakil Singh (supra) would be of no assistance to the defence as in the said case the description of accused therein viz. stature, complexion was not given by the witnesses either in their statement to the police or in their oral evidence.
22. PW-2 is another eye witness to the incident. He has stated in his evidence that he was working as bodyguard of PW-28. Alongwith him, the deceased Ajit Yerunkar and Satpal Singh were also working as bodyguards of PW-28.
23. According to PW-2 on the day of incident, he came to the office at about 2.30 p.m.. After five minutes, the deceased Ajit came. On that day, Satpal Singh was on leave. At about 3.45 p.m., while he and the deceased Ajit were sitting in the Pantry room of their office, they heard the sound of shouting of PW-1. They came out of the pantry room. PW-1 came there saying ‘gun hai gun hai’. At that time, two unknown persons started running out of door of the office. He and the deceased started following them. The deceased Ajit was ahead of him. The deceased tried to catch hold of the person who was wearing green T-shirt and he tried to catch hold of the person who was wearing yellow shirt. The person who was wearing green T-shirt fired from the pistol in the direction of Ajit. However, the bullet did not hit him. PW-2 has stated that the person wearing green T-shirt again fired from his pistol and this time bullet hit the right side chest of the deceased Ajit. The deceased Ajit collapsed. Therefore, he went towards Ajit. Taking advantage of this, both the persons ran away.
24. PW-2 has further stated that on 17.3.2011, he was called for test identification parade at Arthur Road Jail. PW-2 had identified accused Nos.3 and 4 in test identification parade as the assailants.
25. The learned counsel for the appellants submits that according to the prosecution, PW-2 was chasing the assailants and directly witnessed the firing. It is submitted that the inquiry was made with PW-2 immediately after the incident, however, his statement was recorded on next day. It is submitted that had PW-2 been indeed present at the office of PW-2 and seen the assailants at such close proximity, his statement would have been recorded immediately. It is submitted that delay of 24 hours in recording statement of PW-2 clearly indicates that he had not seen the assailants.
26. It is further submitted that after the incident, PW-1 and PW-3 were taken to identify the assailants in the CCTV footage collected from Ghatkopar and Churchgate railway station and PW-2 was not called for this exercise. It is submitted that had PW-2 indeed seen the assailants at such close quarters and witnessed the firing he would have been the first person the police would have asked to view the CCTV footage.
27. According to PW-2, after the incident, he took the deceased to the hospital. This fact has not been challenged. On the contrary, in the cross-examination of PW-2 it came to be suggested to him on behalf of accused No.4 that he had gone along with Ajit to the hospital and he was there till 8.00 to 9.00 p.m. It was further suggested on behalf of accused No.3 that he had gone back to his house on next day i.e., on 9.2.2011 at about 2.00 & 2.30 p.m. after attending funeral of Ajit and thereafter on the same day he was called by the police for recording his statement. If this is so, then presence of PW-2 at the time of incident cannot be doubted just because his statement was recorded after 24 hours or he was not taken to view CCTV footage.
28. It is further submitted that according to PW-2, the deceased was shot while standing on the base in the midst of staircase by accused No.3 who was standing on a step below the deceased. It is submitted that had this been true the trajectory of the bullet would have been from down to up. However, as per Autopsy Surgeon the trajectory of bullet was up to down. The medical evidence therefore, falsifies the testimony of PW-2.
29. It is well settled that medical evidence is only corroborative evidence and if there is inconsistency, if any, in medical evidence and ocular evidence, the ocular evidence will prevail, unless the medical evidence in it’s turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by the eyewitnesses. In the present case, no such circumstances are brought on record by cross-examining the Autopsy Surgeon to that effect. Trajectory of bullet by itself is not sufficient to discard the evidence of PW-2, whose presence at the place of incident appears to be most natural.
30. It is further submitted that according to PW-2 the bullet was fired from close range whereas the ballistic expert PW-39 Sudhakar Ramteke says that the absence of blackening shows a far range shot. It is submitted that the evidence of ballistic expert thus clearly falsifies the version of PW-2.
31. PW-39, Ballistic Expert, has categorically stated that the bullet was fired from the distance of about 1 to 5 meters. It could be thus any distance between 1 to 5 meters. PW-30 Dr.Sadanand Bhise, Autopsy Surgeon has stated that on examination of clothes of the deceased, they found hole on the right side of chest region with blackening around that hole. The said hole of blackening around it would indicate that, it was a close range firearm injury. The evidence of PW-2 therefore, cannot be said to be inconsistent with the ballistic expert’s evidence.
32. As regards the identification of the assailants by PW-2, it is submitted that when PW-2 saw the assailants for the first time, they were already running speedily with their backs towards him. Thus PW-2 did not have any occasion to see the assailants. It is submitted that according to PW-2, if he was chasing accused No.4, it is impossible for him to see and register the face of the assailant who was at a distance. It is submitted that PW-2 did not have chance or opportunity to observe the features of the assailants.
33. It appears from the evidence of PW-2 that, in fact he was able to catch hold of one of the assailants, however, due to firing he lost grip over the said assailant. It is not the case of defence that the assailants did not look back, while they were being followed by the deceased Ajit and PW-2 or they fired at Ajit without looking at him. In the facts and circumstances of the case, the submission that PW-2 did not have opportunity to see the faces of assailants cannot be accepted.
34. The last eye-witness is PW-3 Hasmukh Khetalpar. He has stated in his evidence that he was working in the office of PW- 28 as a Manager. On the day of incident at about 3.45 p.m., PW-1 came and told him that two persons had come to office and they wanted to meet PW-28. He met them and asked them what work they have. They told him that they are contractors and they came from Pune to meet PW-28. He told them to sit and asked the peon to give them water and tea. He then went to cabin of PW-28. While he was in the cabin of PW-28, he heard the shouts of PW-1. He also heard the sound of firing. PW-28 asked him to see what is happening. Hence, he came out of cabin of PW-28 and saw that Ajit had sustained bullet injury. He identified the accused Nos.3 and 4 in the Court.
35. The learned counsel for the appellants submits that the identification of persons in the court without test identification parade cannot be relied upon. It is submitted that in the absence of test identification parade, no reliance can be placed on the identification of the assailants by PW-3 in the court after two years. In support of submission, learned counsel for the appellants have relied upon the judgment of the Hon’ble Supreme Court in the matter of Kanan and ors. vs. State of Kerala – (1979) 3 SCC 319.
36. In the present matter, admittedly, the assailants were unknown to PW-3. He was not called for test identification parade of accused Nos.3 and 4. The Hon’ble Supreme Court in the case of Kanan and ors (supra) has observed:
“……..We feel that the High Court erred in law in taking this view. It is well settled that where a witness identifies an accused who is not known to him in the Court for the first time, his evidence is absolutely valueless unless there has been a previous T. I. parade to test his powers of observations. The idea of holding T. I. parade under Section 9 of the Evidence Act is to test the veracity of the witness on the question of his capability to identify an unknown person whom the witness may have seen only once. If no T. I. parade is held then it will be wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in Court. In these circumstances, therefore, we feel that it was incumbent on the prosecution in this case to have arranged T. I. parade and got the identification made before the witness was called upon to identify the appellant in the court…...”
In view of the above, no reliance can be placed on the identification of accused Nos.3 and 4 by PW-3 for the first time in the court. Nor his evidence can be relied upon to connect the accused Nos.3 and 4 with the alleged crime.
37. The next contention of the learned counsel for the appellants is that for the test identification parade to be reliable, it must be conducted strictly in accordance with established procedure in that respect. It is submitted that the test identification parade conducted in violation of the established procedure be discarded. In support of submission, the learned counsel for the appellants have relied upon the judgment in the matter of Hari Nath and anr. vs. State of U.P. - AIR 1988 Supreme Court 345.
38. It is further submitted that the Special Executive Magistrate in the present case was holding the test identification parade for the first time and did not know the rules and procedures to be followed. Consequently, the test identification parade is riddled with following errors and cannot be relied upon (i) Two dissimilar accused were put up in the same test identification parade. (ii) Dummies were dissimilar looking and of different height and complexion. (iii) Dummies were not selected by the SEM, but by the jailor. (iv) The panchas were not selected by SEM (v) No questions were asked to the accused by the SEM.
39. It would be apt to refer to the Judgment of the Hon’ble Supreme Court in the case of State of Maharashtra vs. Suresh reported in 2000 (1)SCC 471. The Hon’ble Supreme Court has observed :
“If potholes were to be ferreted out from the proceedings of the magistrates holding such parades possibly no test identification parade can escape from one or two lapses. If a scrutiny is made from that angle alone and the result of the parade is treated as vitiated every test identification parade would become unusable. We remind ourselves that identification parades are not primarily meant for the court. They are meant for investigation purposes; The object of conducting test identification parade is two fold. First is to enable the witnesses to satisfy themselves that the prisoner whom they suspect is really the one who was seen by them in connection with the commission of the crime. Second is to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence. So the officer conducting the test identification parade should ensure that the said object of the parade is achieved. If he permits dilution of the modality to be followed in a parade, he should see to it that such relaxation would not impair the purpose for which the parade is held.”
40. The errors pointed out by the learned counsel for the appellants in conducting test identification parade in present case, in our view, can be at the most termed as irregularities. We are therefore, not inclined to accept the submission that due to the said errors the test identification parade stands vitiated.
41. It is further submitted that in the present case, the test identification parade came to be conducted after delay of 1 month and 10 days. It is submitted that the Hon’ble Supreme Court in the case of Rameshwar Singh vs. State – AIR 1972 SC 102, has held that the test identification parade must be conducted immediately, after the arrest as the po
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ssibility of witness accurately remembering and identifying the assailant reduces with time. 42. In the present matter accused Nos.3 and 4 were arrested on 10.2.2011. The test identification parade was thereafter conducted on 17.3.2011. PW-29 who conducted the test identification parade has stated in his evidence that he was on leave 3.3.2011 to 13.3.2011 due to ill-health. The Hon’ble Supreme Court in the case of Ramanand Ramnath vs. The State of Madhya Pradesh - 1996 Scale (3) 429, has held: “It was, however, contended on behalf of the appellant that the learned Courts below failed to notice that the test identification parade was not held at the earliest available opportunity. We do not find any substance in this contention for the record shows that the appellant was arrested on 29.8.1981 and the test identification parade was held on 14.9.1981. It cannot, therefore, be said that there was any unusual delay in holding the test identification parade.” In the present matter also considering the evidence of PW-29, it cannot be said that there was unusual delay in holding the test identification parade. The judgment in the case of Hari Nath (supra) would not apply to the facts of the present case as test identification parade there was held four months after arrest of the accused therein. 43. It is further submitted that in the present case, the dummies were produced by Special Executive Magistrate in front of the witnesses, who had thus seen the dummies even before the test identification parade and thus it completely vitiates the test identification parade and renders it utterly futile. 44. We have perused the evidence of Special Executive Magistrate, PW-29. He has stated that the Jailor produced six dummies before him. Then he has stated that he himself, six dummies, two panchas and witnesses were present in the Jail. No inference can be drawn from the said evidence that the witnesses had seen the dummies even before the test identification parade. Even this was not suggested to the witness. The submission thus deserves to be rejected. 45. Considering the overall facts and circumstances of the case, no interference is called for in the impugned judgment and order. In the result, the following order is passed. ORDER Criminal Appeal Nos. 611 and 612 of 2016 are dismissed.