Full Judgment Text
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PETITIONER:
KISHORE AMARSINGH MAHESHKAR, RAVINDRA @ RAVI BANSI GOHAR
Vs.
RESPONDENT:
THE STATE OF MAHARASHTRA & ORS.
DATE OF JUDGMENT: 04/08/1998
BENCH:
M.K. MUKHERJEE, D.P. WADHWA
ACT:
HEADNOTE:
JUDGMENT:
WITH
CRIMINAL APPEAL NO. 432 OF 1998
J U D G M E N T
M.K. MUKHERJEE. J.
Ravindra @ Ravi Bansi Gohar and Keshya @ Kishore
Amarsingh Maheshkar, the appellants in these two appeals,
along with tow others were arraigned before an Additional
Sessions Judge of Greater Bombay to answer charges of
rioting, two murders and other cognate offences. The trial
ended in conviction of each of the appellants for those
offences and sentence of death, imprisonment for different
terms, including life, and fine. Against their convictions
and sentences they preferred an appeal before the High
Court, which was heard along with the case arising out of
the statutory reference made by the trial Judge under
Section 366 cr. P.C. In disposing of the reference case and
the appeal by a common judgment, the High Court affirmed the
convictions and sentences of the appellants and set aside
those of the other two. Hence this appeal.
2. Shorn of details, the prosecution case is as under:
(a) On March 5, 1987 at or about 3.30 a.m. a number of
persons were found approaching Satrasta police lock up of
Agripada Police Station through an opening in the compound
wall and hurling country-made bombs. One of the bombs hit
and injured Manaji Mani, who was at the police post (guard
chowki) near the lock up. Thereafter four of the, who were
carrying fire-arms, came to the front entrance of the lock
up where Uttam Vishnu Gharte, (PW2), a police Naik, was on
duty. They asked him to had over the keys of the lock up but
on his refusal to do so inspite of threats meted out to him,
they retreated a few steps and hurled bombs towards the iron
wire mesh which was in front of cell No. 1 on the ground
floor of the lock up. Through that wire mesh they then fired
in the direction of cell No. 1. Thereafter they entered the
gate, went inside through the rear lobby of the lock up, and
one of them broke open the lock of the gate of the front
lobby. All of them then entered through that gate and went
to cell No.1 wherein one Babu Gopal Reshim, a suspect was
detained. After firing at him-which resulted in his
instantaneous death- they came back shouting some slogans.
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At the time of retreat they also threw bombs in the area
under the staircase which is treated as resting room of the
guards. In the process a number of police constables
sustained injuries. All the miscreants then ran away towards
Sane Guruj Path.
(b) On getting information of the incident over phone Shri
Zende (PW17), Officer-in-charge of Agripada police Station
rushed to the lock up. After making a preliminary survey of
the scene of crime he recorded the statement of P.W.2,
wherein he, besides datailing the incident, stated that he
could identify Vijaya and Keshya as two of the miscreants.
On that report (Ext.24), P.W.17 registered a case and took
up investigation. He prepared a panchnama of the articles
found there which included five live bombs and bullets. He
also prepared a sketch map of the scene of offence. In the
meantime he had arranged to send the injured constables,
including P.W.2 and Ahire, to the hospital for treatment and
the dead body of Babu Gopal Reshim for post mortem
examination, after holding inquest. While in the hospital
Ahire succumbed to his injuries.
(c) In course of investigation three of the accused persons
including the two appellants were arrested on June 29,1987
and they were placed in two Test Identifications (T.I)
parades which were held on July 8, 1987 by Shri L.J. Parikh
(P.W.18), Special Executive Magistrate. In those parades
P.W.2 identified both the appellants and accused Rajendra
(since Acquitted) and constable Ashok Dinkar Chakranarayan
(P.W.12) identified appellant Ravi. Accused Vinod Bhika
Maria (since acquitted), who was arrested after charge sheet
was filed against the former three accused, was also placed
in a T.I parade in which constable Chandrakant S. Sawant
(P.W.4) identified him as one of the miscreants. Thereafter
a supplementary chargesheet was filed against him.
3. The appellants pleaded not guilty to the charges framed
against them and contended that they were falsely implicated
at the instance of the police. Besides, they asserted that
earlier they had been arrested by the Agripada police
station and while they were in the lock up in question,
their photographs were taken which were later shown to
P.Ws.2 and 12 to enable them (the three witnesses) to
implicate them in the incident in question.
4. In order to establish case the prosecution examined
twenty eight witnesses and exhibited a number of documents.
No witness was, however, examined P.W.2, P.W.4 and P.W.12,
who, among others, were at the police lock up at the
material time, gave an ocular version of the incident.
Besides, Shakil Mohd. Ibrahim Ansari (P.W.21), who was also
detained in the police lock up as a suspect, was examined by
the prosecution to recount the incident. Though he supported
the prosecution case as to manner in which the incident took
place, he did not name or identify and of the four accused
persons, for which he was declared hostile and cross
examined with reference to his statement recorded under
Section 161 Cr. P.C. On perusal of the record we find that
the evidence of the above four witnesses regarding the
occurrence stands corroborated by the evidence of the
doctors who held post mortem examinations upon the dead
bodies of Babu Gopal Reshim and Ahire and examined the
injured constables. Besides, the reports of the forensic
Science Laboratory also go a long way to corroborate their
version. In such circumstances, we find no reason to disturb
the concurrent findings of the learned Courts below in this
regard. Indeed, the learned counsel appearing for the
appellants did not seriously challenge this part of the
prosecution case.
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5. The next and the most crucial question that now falls
for our determination if whether the prosecution has
succeeded in conclusively proving that the two appellants
were among the miscreants. To prove this part of its case
the prosecution relied solely upon the evidence of P.W.2 and
P.W.12. P.W.2 testified that out of the four persons who
came to the lock up site he could identify Vijaya (he died
before the trial commenced) and Keshya and he pointed out to
appellant Kishore as keshya. According to him he knew both
of them for about 7/8 months prior to the incident. He also
identified appellant Ravi and accused Raju (since acquitted)
as two of the other miscreants, but admitted that he did not
know them from before. He further stated that he identified
the above three witnesses in a T.I. parade. The other
witness, namely P.W.12 identified appellant Ravi as one of
the miscreants and while identifying him deposed that he
knew him and his name was Ravi Basal. He added that he came
to know his name at the time of the T.I. Parade. The
evidence of the above two witnesses regarding identification
in T.I. parade was corroborated by that of P.W.18 who held
the parade on July 8,1987.
6. It is not in dispute-indeed, the prosecution case
itself, as testified by two of the Investigating Officers
is,- that the photographs of the four accused (including the
two appellants) were shown to the above witnesses before the
T.I. parade was held. Notwithstanding this glaring fact,
which in our view, made the identification in T.I. parade
and, for that matter, identification in Court worthless, the
trial Court accepted the evidence of P.W.2 & P.W.12 and that
of P.W.4 who identified another accused. The High Court,
however, relying upon the judgment of this Court in Laxmipat
Choraria & Others Versus State of Maharashtra, A.I.R. 1968
SC 938, held, that the evidence of the witnesses so far as
it related to identification of the accused who were not
known to them from before was unworthy of credit, as,
admittedly, their photographs were shown to them before T.I.
parade. Accordingly, the High Court acquitted the other two
accused and also left out of consideration the evidence of
P.W.2 regarding identification of appellant Ravi. The High
Court, however, accepted the evidence of P.W.2 & P.W.12
regarding identification of appellants Kishore and Ravi
respectively, as those witnesses claimed to have known them
from before and drew the following conclusion to uphold
their convictions and sentences:
"On the basis of the evidence on
record we have come to the
conclusion that accused No.3
(Kishore) was known to the P.W.2
and accused No.1 (Ravi) was known
to P.W.12. In these circumstances
if the police officers just to
ensure earlier identity of accused
showed the photographs of accused
who were already known to the
witnesses and further the said fact
was confirmed by holding
identification parade soon after
and circumstances of the case we do
not see that it creates any
infirmity in the case of the
prosecution so far as the
identification of accused No.1 by
P.W.12 and accused No. 3 by P.W.2
is concerned. We must emphasize the
fact that the material on record in
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our opinion clearly shows that high
degree of probability of P.W.2
knowing the accused No.3 and P.W.12
knowing the accused No.1, the
witness being police officers
attached to the Agripade Police
Station and the accused being
inmates of the lock up in recent
past of the occurrence of the
incident in question."
7. We have heard the learned counsel for the parties at
length and with their assistance gone through the evidence
relevant to the question which we have to now answer. On
going through the record we have found certain disturbing
features in the prosecution case which remain unexplained
and go a long way to discredit it. In his statement, which
was recorded as the F.I.R. (EXT. 24)P.W.2 stated, that
’Vijaya’ and ’Keshya’ were among the miscreants. He,
however, we find that in the formal F.I.R prepared on the
basis of the statement of P.W.2 the following names have
been shown in the column meant for recording the names of
the accused:
"1. Vijay alias Vijay Utkar
2. keshya alias Kishore Marrya,
Laxa and other 9/10 persons".
When cross examined on this point, P.W.2 admitted that
at the time he lodged the F.I.R. he did not know that the
surname of Vijay was ’Utkar’ and he came to know about his
surname from the papers. So far as keshya is concerned he
stated that he knew that he was residing in Kanjarwada and
was gunda of the locality and that he had told the police at
the time of lodging of the F.I.R. about those facts. He,
however, admitted that in his statement he did not give the
detailed particulars of whom he knew and saw among the
miscreants and that there may be a number of persons by the
name keshya. In view of the above admissions of P.W.2 we are
at loss to understand how the surnames of Vijay and Keshya
and the name of laxa could find place in the formal F.I.R.
recorded on the statement of P.W.2. Equally surprising is
that though P.W.2 named keshya, his name was also given as @
Kishore Marrya. While on this point it is also pertinent to
mention that the full name of the appellant Kishore who,
according to P.W.2, was named as keshya in his statement, is
admittedly ’Kishore Kaheshkar’. From all these peculiar
facts and circumstances, which remain unexplained, the only
conclusion that can be drawn is that the F.I.R. was not at
all prepared at the time alleged by the prosecution (4.15
a.m.). Indeed, in the instant case the F.I.R. was not the
basis of the investigation-as it should be - but was the
outcome of investigation.
8. The next unusual feature of the case, is the showing of
the photographs of the accused to the witnesses who were to
identify them in T.I. parade. As noticed earlier, the High
Court did not lay any importance on this aspect of the
matter so far as the two appellants are concerned on the
ground that those photographs were shown to P.Ws.2 and 12,
who were already known to them to test whether their
identification was correct or not and that fact was
confirmed by holding identification parade immediately after
their arrest. This finding of the High Court, in our view,
is wholly unsustainable. The identification parades belong
to the investigation stage and they serve to provide the
investigating authority with materials to assure themselves
if the investigation is proceeding on right lines. In other
words, through these identification parades that the
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investigating agency is required to ascertain whether the
persons whom they suspect to have committed the offence were
the real culprits - and not by showing the suspects or their
photographs. Such being the purpose of identification
parades the investigating agency, by showing the photographs
of the suspects, whom they intended to place in the T.I.
parade, made it farcical. If really the investigating agency
was satisfied that P.Ws2 & 12 did know the appellants from
before and they were in fact amongst the miscreants, the
question of holding T.I. parade in respect of them for their
identification could not have arisen.
Another disturbing feature of the case is that the T.I.
parade was held inside the lock up of C.I.D. department of
the Bombay police which was investigating into the case at
the material time. In Hasib vs. State of Bihar (A.I.R. 1972
SC 283) this Court observed that a vital factor for
determining the value of an identification parade is the
effectiveness of the precautions taken by those responsible
for holding them against the identifying witnesses having an
opportunity of seeing the persons to be identified by them
before they are paraded with other persons and also against
the identifying witnesses being provided by the
investigating authority with other unfair aid or assistance
so as to facilitate the identification of the accused
concerned. The above observations aptly apply in the facts
of the instant case for not only the photographs of the
appellants and other accused were shown before the T.I.
parades, but they were held in the lock up of the
investigating agency thereby giving sufficient opportunity
to the identifying witnesses of seeing the persons to be
identified. Having regard to the fact that the above two
identifying witnesses were police constables attached to the
concerned police station, it was all the more necessary for
the investigating agency to ensure that the T.I. parade was
held in a manner and at a place (preferably in jail) so as
to avoid any criticism about its legitimacy.
10. Coming now to the cases of the individual appellants we
first take up that of Ravindra who, as earlier noticed, was
identified by P.W.12. According to him he knew Ravi from
before but he came to know about his name at the time of
T.I. parade. He, however, in his testimony did not state how
he knew him nor did he state in his statement recorded under
Section 161 Cr. P.C. that amongst the miscreants he saw one
whom he knew from before but did not know his name.
Unfortunately, this vital omission which rendered his
evidence regarding identification of appellant Ravi suspect
in Court was not at all considered by the High Court or the
trial Court.
11. As regards the other appellant the relevant evidence of
P.W.2, who identified him, in his cross examination is that
keshya, whom he named in his statement before the police,
was residing in kanjarwada and was gunda of the locality. He
further stated that he had told the police that keshya was
resident of kanjarwada. If really P.W.2 knew about all those
details, it was, in the fitness of things, expected of him
to disclose them in the statement he made before the police
so as to fix up the identity of keshya. That apart, P.W.2
did not assert that keshya, whom he named in the F.I.R, was
the appellant Kishore before us. On the contrary, he said
that there may by many persons by the name of Keshya. From
these facts and circumstances the only reasonable conclusion
we can legitimately draw is that to ascertain whether keshya
named by P.W.2 in his statement really referred to the
appellant Kishore Kaheshkar, that the police showed him his
(Kishore’s) photograph and placed him in T.I. parade. In
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drawing this conclusion we have drawn inspiration from the
mystery surrounding the F.I.R.
12. That the High Court felt it difficult to sustain the
convictions of the appellants in absence of any foundation
laid by P.Ws.2 and 12 to indicate as to how they came to
know the appellants would be evident from the observations
made by the High Court (quoted earlier) that there was a
high degree of probability of P.Ws. 2 and 12 of knowing the
two appellants respectively as they were attached to
Agripada police Station and they (the appellants) were the
inmates of the lock up for some time prior to the incident
in question. we are constrained to say that the above
reasoning of the High Court is convoluted and strained. It
was for the above two witnesses to testify that they had
seen them while they were in the lock up earlier and that is
how they knew them from before the incident. In absence of
any such assertion, the High Court was not at all justified
in making the above observation on the basis of ’high decree
of probability’. To sustain the conviction the High Court
was required to record a positive finding on the basis of
reliable and acceptable evidence that the two witnesses knew
the appellants from before and not on the basis of high
degree of probability. Rather, it appears to us, the defence
of the appellants that while they were in the lock up
earlier their photographs were taken and thereafter shown to
the witnesses to implicate them in the case is probabilised
by the admission made by the investigating officers as also
P.W.2, that they were shown their photographs.
13. For the foregoing discussion we are unable to sustain
the impugned judgment on the basis of the sole
identification of P.W.s. 2 and 12. The appeals are
accordingly allowed and the convictions and the sentences of
the appellants are set aside. The appellants, who are in
jail, be released forthwith unless wanted in connection with
any other case.