Full Judgment Text
2023:BHC-AS:5013
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 291 OF 2022
WITH
INTERIM APPLICATION NO. 3915 OF 2022
Mohd. Shoab Shaukatali Mansuri ..Appellant
Versus
The State of Maharashtra & Anr. ..Respondents
__________
Mr. Amin Solkar a/w. Gaurav Shenoy i/b. Misbaah Solka
Appellant.
Mr. S. R. Agarkar, APP for State/Respondent No.1.
Mr. Aashish Satpute, (Appointed Advocate) for Respondent No.2.
__________
CORAM : SARANG V. KOTWAL, J.
DATE : 6 FEBRUARY 2023
ORAL JUDGMENT:
1. The Appellant has challenged the Judgment and order
dated 27/12/2021, passed by learned Additional Sessions Judge,
City Civil & Sessions Court, Borivali Division, Dindoshi, Mumbai, i
Sessions Case No.90 of 2016. There were four accused in the tria
The Appellant was the accused No.2. The other accused
Accused No.1 Mohd. Naved Salim Parmar, Accused No.3 Rahul
Gokhale
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Ramya Pawar and accused No.4 Sanjaykumar Gagankum
Mahanti. At the conclusion of the trial, the Accused Nos.1 and 4
were acquitted. The Appellant/Accused No.2 and the Accused No
were convicted and sentenced as follows:
i) They were convicted for commission of offence
punishable U/s. 341 r/w. 120(B) of the Indian
Penal Code (for short ‘I.P.C.’) and were sentenced
to suffer S.I. for one month.
ii) They were convicted for commission of offence
punishable U/s.394 r/w. 397 and 120(B) of the
I.P.C. and were sentenced to suffer R.I. for 10
years each and to pay a fine of Rs.5000/- each
and in default of payment of fine to suffer S.I. for
three months each.
iii) They were convicted for commission of offence
punishable U/s.307 r/w. 120(B) of the I.P.C. and
were sentenced to suffer R.I. for 10 years each
and to pay a fine of Rs.5000/- each and
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default of payment of fine to suffer S.I. for three
months each.
iv) They were convicted for commission of offence
punishable U/s.3 r/w. 25 of the Indian Arms Act
and were sentenced to suffer R.I. for three years
each and to pay a fine of Rs.1000/- each and in
default of payment of fine to suffer S.I. for one
month each.
v) They were convicted for commission of offence
punishable U/s.5 r/w. 27 of the Indian Arms Act
and were sentenced to suffer R.I. for three years
each and to pay a fine of Rs.1000/- each and in
default of payment of fine to suffer S.I. for one
month each.
Both of them were granted set off U/s.428 of
Cr.p.c. All the substantive sentences were directed to r
concurrently.
2. Heard Mr. Amin Solkar, learned counsel for the
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Appellant, Mr. Agarkar, learned APP for the State/Respondent No
and Mr. Aashish Satpute, learned appointed advocate fo
Respondent No.2.
3. The prosecution case is that, Dakshesh Shah who is the
first informant in this case wanted to send Rs.25000/-
mother in Gujarat. He called his friend Dipak Vora. Both of them
went on a motorcycle to Malad to find a courier to send that
amount. The offices were closed. They were returning back. They
reached Kandivali. The motorcycle was driven by Dakshesh Shah
and Dipak Vora was the pillion rider who was carrying the bag
with money. They were intercepted by a motorcycle. Two person
got down from that motorcycle. The prosecution case is that, the
were the Appellant and the Accused No.3. They snatched the ba
from Dipak Vora. The informant and Dipak Vora resisted. It is
alleged that, both these accused then fired at the informant with
their respective firearms. One bullet got embedded in the wrist o
the informant. The other hit his thigh. The two empties and one
deformed bullet lay on the ground. The accused went away from
there. The informant was taken to the hospital. His statement wa
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recorded and the offence was registered at Kandivali police stati
The investigation was carried out. The spot panchanam
conducted. Two empties and one bullet were seized from the spo
The bullet removed from the informant’s hand was collected. In
the meantime, the police got information that both the accused
were in Nagpur. The police team went to Nagpur and took help o
the local police. The Appellant and the accused No.3 were arrest
from a lodge in Nagpur on 11/12/2015. At the time of their arrest
two firearms were recovered from them. They were seized. The
firearms and the bullets were sent for testing to Ballistic Experts
The investigation was carried out. The test identification parades
were held separately and both of them were identified
statements of the witnesses were recorded and at the conclusion
the investigation the charge-sheet was filed. The case
committed to the Court of Sessions.
4. During trial, the prosecution examined twenty witnesses
including the informant, his friend Dipak Vora, the Doctor who
treated the first informant, the Special Executive Magistrate who
conducted the Test Identification Parades on 08/01/2016 and on
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19/01/2016, the panchas, the Nodal Officers of the tele
service providers, the Ballistic Experts and the Investiga
Officers. The defence of the Appellant was of total denial.
5. Learned Trial Judge relied on the evidence of t
prosecution and in particular on the evidence regarding
identification of the Appellant and the recovery of the weapons.
This is crystallized in paragraph 131 of the impugned Judgment.
6. PW-1 Dakshesh Shah was the first informant. He has
deposed that, he was in the business of selling and purchasing
clothes in the name of Mahavir Enterprise. On 05/11/2015, it was
a holiday for him. He wanted to send some money to his mother
residing at Bhavnagar. He called PW-2 Dipak Vora and told him t
accompany him for going to a courier office at Malad (E). He
asked Dipak Vora to meet him at Borivali. PW-1 had
Rs.25000/- with him. Both of them reached Malad at a
1.30p.m. on PW-1’s scooter. But the offices of the courier compa
were closed. They started to come back from Malad to Borivali.
They decided to go from Kandivali. PW-1 had kept Rs.25000/- in
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bag. Since he was driving his scooter, he had given the bag to PW
Dipak. When they were going from Shankar Lane towa
Iraniwadi, they were obstructed by two persons on a motorcycle
They removed the keys of his scooter and started abusing them.
They tried to snatch the bag from PW-2. At that time, PW-1 tried
obstruct them. They pulled the gold chain from his neck. The cha
fell down but PW-1 picked it up. He pushed one of the offenders.
The offender removed a revolver and shot at PW-1. He suffered a
injury on his left hand’s small finger. PW-1 tried to hit him with th
helmet. The other accused also removed the revolver from his p
and shot at PW-1. That caused injury to PW-1’s right leg. The bul
went through his leg causing entry and exit wounds. Both of them
threatened the people who had gathered there and then went
away. PW-1 could see the last four digits of the motorcycle as
7779. PW-1 and PW-2 then went to Shatabdi Hospital at Kandiva
They informed about the incident to the constable on duty at tha
Hospital. PW-1 further deposed that, the motorcycle used by the
accused was red coloured Honda Passion. He was discharged fro
the hospital after 5 to 6 days. The police showed him
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motorcycle after 5 to 6 days from the date of incident.
7. While deposing before the Court on 17/01/2019, PW-1
identified the accused No.3 Rahul Pawar in the Court.
categorically stated that, out of the two offenders, only one was
present in the Court. The other one was not seen in the Court. Th
roznama shows that, on 17/01/2019 all the four accused were
present in the Court. That means, though the Appellant was very
much present in the Court, PW-1 did not identify him in the court
on that occasion. He was very specific that the accused other tha
accused No.3 Rahul Pawar was not present in the Court. This is
important in the context of this case. PW-1 identified his own
clothes in the Court.
In the cross-examination, PW-1 deposed that he did no
call the police from the spot of incident. Approximately 20 to 25
people had gathered at the spot at the time of incident, but he d
not speak with anybody. After the incident, he was stunned. The
were buildings and shops near the spot of incident. W
reached the hospital he was conscious. At about 8.00p.m. on the
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same day, he left Shatabdi hospital and went to Sanjivani hospit
which was a private hospital. Operation was performed on him. H
specifically deposed that, Dipak had not come with a
containing money. He has further deposed that, no am
belonging to Dipak was robbed.
PW-1 has not deposed in the examination in chief that
he had lodged the F.I.R., but the prosecution case is that the F.I.
was given by him. It was registered as C.R.No.400 of 2015 at
Kandivali police station on 05/11/2015. The police station was
informed at about 2.55p.m. and the F.I.R. was lodged at 4.50p.m
In the cross-examination, PW-1 was confronted with
his statement in the F.I.R. that Dipak had brought Rs.25000/- in a
black rexine bag and that PW-1 himself had brought Rs.20000/-.
These contradictions were brought to his notice. He could not
explain why it was so mentioned in his F.I.R. In further cross-
examination, he admitted that he had not given the broken chai
to the police and that he had also not given his helmet to the
police.
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On 08/03/2019, a question in his re-examination was
asked by learned APP to PW-1. In answer to that specific questio
he stated as follows:
“One accused is present today who was absent on the
day when examination in chief was recorded. He is present in
Court today. He is the same person.”
This statement does not throw further light on
identity of the offender. In fact, it emphasizes that the person wh
was not present on 17/01/2019 was present in the Co
08/03/2019 and he was identified by PW-1. This statement does
help the appellant because he was present in the Cou
17/01/2019. PW-1’s evidence was resumed on 07/10/2019 and
again he was asked to identify the accused, and this
identified the Appellant and the accused No.3. On this statement
he was cross-examined on behalf of the Appellant. He tried to
explain that, on the earlier occasions he had seen the accused fr
a long distance from the witness box and not by going near the
accused. But he still could not give clear answers. He admitted
that, he was not sure whether the Appellant was present in the
Court on 17/01/2019. Thus, he has not properly identified the
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Appellant in the Court during his deposition.
8. Dipak Vora who had accompanied PW-1, was examined
as PW-2. He has deposed that, on 05/11/2015, at about 12.30p.m
he received a telephone call from PW-1 who asked him to meet
him. They met at Kandivali. PW-2 wanted to deposit some amou
at Malad Diamond market. PW-1 and PW-2 went to M
Diamond Market on PW-1’s scooter; but the offices were closed.
Therefore, they started coming back towards Iraniwadi
Kandivali (W). They were intercepted by two persons o
motorcycle. They started quarreling with PW-1. One of
snatched the bag from PW-2. Both of them fired at t
informant causing injuries. Both the accused then went away on
their two wheeler with PW-2’s bag containing Rs.25000/-. PW-2
then took PW-1 to Shatabdi hospital and admitted him there. He
has deposed that, he was called to identify the accused at Thane
Jail. According to him, he identified both the accused. At the time
of his deposition, he was shown all the accused, but he identified
only accused No.3. Though, the Appellant was present
Court, he did not identify the Appellant.
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In the cross-examination, he stated that, PW-1 had not
given him any amount for keeping it in his bag. When he had
taken PW-1 to the hospital, he was there for about one and half
hour. During that period, police officers inquired with him, but
they did not record his statement in the hospital.
9. PW-3 Mukesh Mehta was a pancha for recovery
Rs.2500/- from the Accused No.1. PW-4 Saurabh Shah was a sho
owner from where the CCTV footage had captured the incident. H
had produced that CCTV footage, however, there was no further
connection of that CCTV footage with the prosecution evidence.
PW-5 Gaffar Mistry was a pancha, but he was declared hostile. H
did not support the prosecution case. The prosecution wanted to
show that the accused No.3 had showed his willingness to point
out the spot in presence of this witness and accordingly accused
No.3 had shown the spot. PW-6 Dhaval Shah was a technician wh
had provided the CCTV footage in the pen-drive. PW-8 Aslam Kha
was a pancha in whose presence PW-1’s clothes were seized.
In the context of this case, the evidence of PW-3, PW-4
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PW-5, PW-6 and PW-8 is not very material and this evidence doe
not have much relevance.
10. PW-7 Dr. Prashant Weling was attached to Sanj
Hospital. PW-1 was admitted to that hospital on 05/11/2015. On
examination, he found CLW on volar aspect of left little finger an
entry and exit wound of the size 2 x 2 cm and 1
respectively on the right thigh. He found haemotoma over the
radial styloid and metallic foreign body felt. The metallic body w
removed during the treatment and PW-1 was discharge
08/11/2015.
In the cross-examination, he stated that the b
which was removed by him from the wrist of PW-1 was not hand
over to the police. According to him, he had handed over that
bullet to the Nurse in charge. He had no knowledge whether the
Nurse had handed over that bullet to the police or not.
11. PW-11 Dr. Amit Joshi was attached to Dr. Babasaheb
Ambedkar Municipal Hospital, Mumbai. That hospital was also
known as Shatabdi hospital. He has deposed about the injuries
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seen by him. They are as follows:
i) Puncture wound size 2 x 1 x 3cm on the inner
surface of right thigh. The injury was fresh and
simple in nature.
ii) Puncture wound size 1 x 1 x 1cm on the back of
right knee. The injury was fresh and simple in
nature.
iii) Lacerated wound size 5 x 2 x 1cm on left hand
little finger. The injury was fresh and simple in
nature.
There was no reference to any swelling or presence
of any foreign body or bullet having been seen in
the wrist.
In the cross-examination, he stated that the p
officer from Kandivali police station had visited their hospital. He
had not informed the police station. According to him, it was a jo
of the casualty department. He was unable to tell whether the
constable in the casualty department made any inquiry with the
patient. Interestingly, he has deposed that he did not find any
foreign material or substance on the person of the patient and if
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there was any swelling or abrasion on PW-1 he would
recorded the same.
12. PW-10 Sachin Jadhav was working with Sanjivan
hospital as a Technician. On 23/01/2016, the police called him.
The incharge of the operation theater Smt. Shraddha Shirodkar
produced a bullet removed from the patient. That was seized by
the police under panchanama. It is produced on record at Exhibit
104. A sealed packet bearing label with his signature
identified by him in the Court. He also identified the bullet.
In the cross-examination, he stated that, on
05/11/2015, no article was shown by the Doctor to the police
officer before this witness. On 05/11/2015, at about 6.00p.m. the
doctor handed over one article to him. He handed over the same
to the Nurse. The panchanama shows that the deformed bullet
which is described as ‘lead’ was kept in a small plastic box and a
label was affixed on that box bearing the signature of this witnes
But in the cross-examination, he deposed that, at the time of the
panchanama no label was affixed on the plastic container.
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13. PW-9 Dattatray Bandekar was Naib Tahsildar and Specia
Executive Magistrate at the relevant time. He conducted two tes
identification parades on 08/01/2016 and 19/01/2016. He has
deposed about conducting those parades. He produced the test
identification parade panchanamas at Exhibit 99 and 100. In his
substantive evidence he has not elaborated all the details of tho
test identification parades, but he relied on the test identification
parade panchanamas.
In the cross-examination, he admitted that, he did not
pay attention as to whether any CCTV camera or monitor was
available in the jail. He had not given description of the accused
to the Jailor. Four dummies were common in both the parades. In
both the parades, two different accused were identified. When h
visited the place of the test identification parade, the accused an
the dummies were already present. He had not given description
of the accused to the Jail Authorities. He had not made enquiry
with the Jailor whether prior to him any witness had visited the
Jail or not. The memo of test identification parade dat
08/01/2016 is produced on record at Exhibit 99. The
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memorandum shows that PW-2 had identified the Appellant and
the accused No.3. There were in all 12 dummy persons kept in tw
groups. The memorandum of test identification parade
19/01/2016 is produced on record at Exhibit 100. In this parade,
PW-1 had identified the Appellant, as well as, the accused No.3.
The same memorandum panchanama mentions that the Special
Executive Magistrate had asked PW-1 Dakshesh Shah as to why
was not present on 08/01/2016 for the first test identification
parade. At that time, PW-1 had answered that, on that date i.e. o
08/01/2016 he was present in Thane Central Jail in connection
with some other case. This answer raises serious doubt about th
investigation. There was no reason for PW-1 to remain present in
Thane Central Jail on 08/01/2016 and not attending the f
parade dated 08/01/2016. No satisfactory explanation is offered.
He has not even referred to this in his deposition. Therefore, the
entire procedure is under serious doubt.
14. PW-12 Baby John and PW-13 Sangdev Godse were two
Nodal Officers working with two different service provide
mobile phone network. However, the prosecution has no
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connected their evidence with any other material. There is nothi
to show that, either the Appellant or the accused No.3 was using
particular phone number regarding which these Nodal Officers
could give the evidence. In this view, the evidence of PW-12 and
PW-13 is absolutely irrelevant.
15. PW-14 Namdev Rathod was attached to Kandivali police
station on 05/11/2015. He received the information telephonicall
about the firing. He visited the OPD of the Dr. Babas
Ambedkar Hospital and made inquiries with PW-1. He w
informed about the incident. He recorded PW-1’s statement on h
laptop. PW-14 then obtained the crime registration number by
making a phone call to the police station. He obtained
signature of PW-1 on that statement. He returned to the police
station and registered the offence vide C.R.No.400 of 2015. He h
deposed that, PHC Sundkar had brought the blood stained clothe
of PW-1 to the police station.
In the cross-examination, he admitted that in ever
Municipal or Government hospital, one EPR register is kept and
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the information of firing should have been registered in the EPR
register. He stated that, he has not produced any record of EPR
register of that hospital.
16. PW-15 API Dnyaneshwar Kadam had conducted the spot
panchanama. The articles, as mentioned earlier, were collect
from the spot. He recorded the statement of PW-2. O
16/01/2016, one staff member of the Sanjeevani Hospit
produced the lead piece. It was seized under the panchanama. H
has further deposed that, he prepared the panchanama
23/01/2016 which is produced on record at Exhibit 104. The spo
panchanama is produced on record at Exhibit 160 which mention
seizure of two empties and one deformed bullet.
17. PW-16 Kutbuddin Mulani was attached to Forens
Laboratory at Kalina. On 22/01/2016, seven sealed packets were
received from the Kandivali police station under a covering lette
Exhibit 171. Those samples were sent to the Ballistic departmen
where PW-16 was working. Those articles included two empties
and a deformed bullet found at the spot. On 01/02/2016, under a
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covering letter Exhibit 174 another deformed copper jac
bullet was received. One ballistic examination report was produc
on record at Exhibit 172. It mentions that, two deformed bullets
were sent in this case. The first bullet sent on 22/01/2016 and th
other one sent on 30/01/2016 were fired from the same weapon
The second bullet was sent as Exhibit 1 under ML Case No. BL-
99/16. The first bullet was sent under ML Case No.BL-71/16. The
prosecution case is that the second bullet was collecte
23/01/2016 from the hospital. It was removed from the hand of
the first informant.
18. In this context, the evidence of PW-17 Yogita Patait is
also important. She was also working with the Forensic Science
Laboratory at Kalina. She has produced the Ballistic re
showing that, two weapons were sent to examine whether the
bullets recovered in this case were fired from those weapons. Th
Ballistic examination report is produced on record at Exhibit 194
It mentions that the test was conducted for two country-made
pistol (Exhibit 1 and 2). It showed that deformed bullet seized in
the hospital (which was sent under BL-99/16/Exh.1) and
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empty found at the spot (which was sent under BL-71/16/Exh.1)
and the bullet found at the spot (which was sent under BL-71/16/
Exh.3) were fired from the same weapon.
19. PW-18 API Sachin Lule was attached to Tahsil police
station, Nagpur at the relevant time. On 10/12/2015, at about
3.00a.m. API Dahiphode attached to Kandivali police sta
approached him and told him about the offence. Both of them
together searched for the Appellant by using his mobile phone’s
location. They arranged to lay a trap in a lodge. They caught the
appellant at 5.30a.m. from a lodge. Apart from the Appellant,
Accused No.3 was also arrested. Two firearms were seized from
the person of the Appellant and accused No.3. The panchanama
produced on record at Exhibit 199.
In the cross-examination, it is admitted and it is also
seen from that panchanama that there was no mention of any
sealing or labeling of the articles. This witness has fu
admitted in his cross-examination that the articles were sent to
Ballistic Expert, Nagpur and the report was received fro
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Ballistic Expert at Nagpur. He has not given any linking evidence
as to how the weapons were handed over to the police officers o
Kandivali police station and as to how they were sent to Forensic
Science Laboratory, at Kalina.
20. PW-19 P.I. Sudhir Dalvi was attached to Kandivali police
station on 05/11/2015. He had conducted some part of
investigation. He has deposed about collecting CCTV footage. An
abandoned motorcycle bearing No.MH43-T-7779 was recovered
09/11/2015. By collecting the information about the telephone
numbers the Appellant was traced to Nagpur. This witness then
deposed about the recovery made at the instance of accused No
He had arranged for conducting the test identification parade.
21. PW-20 Dadasaheb Gade was a pancha for spot
panchanama which is produced on record at Exhibit 160.
22. Learned counsel for the appellant submitted that
prosecution has failed to prove its case beyond reasonable doub
There are various contradictions in the main story. PW
deposed that there was only one bag containing Rs.25000/- whic
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he had brought from his house; to be handed over to a courier
agency. However, PW-2 has deposed that, Rs.25000/- were not
brought by PW-1 but were brought by PW-2 himself as he wanted
to pay to some person in Diamond business. Learned counsel
therefore, submitted that the genesis of the incident it
suppressed. The contradictions from the F.I.R. are broug
record. Therefore, there is a doubt about the prosecution story. T
identification of the accused in the Court is not proper. There is n
proper identification of the Appellant. The test identifica
parade can only be used for corroboration. Even regarding the
incident, there are too many doubtful circumstances. The firearm
were not shown to the witnesses. The firearm is not
connected with the Appellant. The panchas for recovery of the
weapons at Nagpur are not examined. There is no connect
piece of evidence to connect the firearms with the Appellant.
23. Shri. Agarkar, learned APP for the State, as well as, Shri
Satpute, learned Appointed Advocate for the Respondent
submitted that, though there is some discrepancy in th
identification before the Court, ultimately, PW-1 did identify the
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Appellant in the Court. They submitted that the test identificatio
parades were held immediately in the month of January 2016 an
in two separate parades, PW-2 and PW-1 have consiste
identified the Appellant, as well as, accused No.3. Therefore, the
identity is sufficiently established. The Ballistic Expert’s
shows that the empties and bullets which were recovered from t
spot and from the hospital matched with the firearm recovered i
in this case and, therefore, there is a strong connecting evidence
between the Appellant and the firearm. The first informant had
suffered serious injuries on his hand and on his thigh
therefore, the offences under sections 397 and 307 of the I.P.C. a
made out. They submitted that the discrepancy about the amoun
and as to who had brought that amount hardly matters because
cannot be overlooked that the first informant had in fact suffered
firearm injuries to his hand and to his thigh. Therefore
evidence cannot be brushed aside.
24. I have considered these submissions. As far as,
occurrence of the incident is concerned, there is no doubt that
some serious incident had taken place on 05/11/2015 at the spo
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25 of 32 201-apeal-291-22 (Judgment)
mentioned by PW-1 and PW-2. It cannot be denied that PW-1 had
suffered firearm injuries. The medical evidence sufficient
corroborates this fact. The informant had first gone to Shatabdi
hospital and then to Sanjeevani Hospital. Both the doctors have
described the injuries. There is some discrepancy about the bulle
embedded in the wrist of the informant, but the fact still remains
that the informant had received firearm injuries; at least on his
thigh. Therefore, it cannot be said that no incident had taken
place. The prosecution needed to connect the present appellant
with the incident.
25. There is important discrepancy about the amount which
was allegedly taken away by the offenders. PW-1 has deposed th
he had brought Rs.25000/- and that amount was kept in a bag.
That bag was kept by PW-2 with him as, PW-1 was driving the
motorcycle. Whereas, PW-2’s version is different. According to h
he had brought Rs.25000/- from his house and it was kept in a
bag. PW-1 in his F.I.R. has stated that the amount of Rs.20000/-
was brought by him and there was also another amou
Rs.25000/- brought by PW-2. There was really no reason as to wh
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this discrepancy should have occurred in the depositions of PW-1
and PW-2. But leaving aside this discrepancy, there is no reason
disbelieve that at least Rs.25000/- in a bag were taken away by t
offenders. Having said this, the discrepancy in the evidence of PW
1 and PW-2 has still remained unexplained.
26. Therefore, crucial question would be about the identity
of the culprits and to see whether there is any connecting piece
evidence. So far as, identity of the offenders is concerned, the
identification in the Court is the substantive piece of evidence. In
this regard, PW-2 has not identified the Appellant in the Court.
Even in the re-examination he had identified only accused No.3.
is specifically recorded that all the accused were present in the
Court on that date except the absconding accused. That means,
though the Appellant was very much present in the Court at the
time of deposition of PW-2, he was not identified by PW-2.
27. Similar is the case with PW-1. His examination in chief a
the first instance was recorded on 17/01/2019. At that time he
had identified only accused No.3. The record shows that, on that
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date the Appellant was very much present in the Court, but PW-1
was very categorical in stating that there were two persons who
had committed the offence; out of which only one person i.e.
Accused No.3 was present in the Court on that date. He was aske
a question in re-examination on 08/03/2019. Even at that time,
his answer did not show that he identified the Appellant in the
Court. On the third occasion i.e. on 07/10/2019, for the first time
he deposed that he identified the Appellant in the Court. Thus, in
the Court during deposition he has not properly identified the
Appellant. While it is true that his deposition is recorded after
about 4 years from the occurrence of the incident, but that was n
because of any fault on the part of the Appellant. Therefore, no
benefit can be given to the prosecution in this behlaf.
28. The test identification parade evidence can at the highe
be a corroborative piece of evidence, but as discussed earlier, ev
that evidence is not satisfactory. As mentioned earlier, on the fir
occasion i.e. on 08/01/2016 though, PW-1 was very much presen
in the Thane Central Prison, he was not made to identify the
suspects. He identified the suspects only on the second occasion
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28 of 32 201-apeal-291-22 (Judgment)
i.e. on 19/01/2016. There is no explanation forthcoming as to wh
PW-1 was present in the Thane Central Prison on 08/01/2016.
Therefore, both these test identification parades are not free fro
doubt. Thus, I find that the evidence regarding the identification
the Appellant is totally unsatisfactory.
29. There is no recovery of either the stolen amount or the
motorcycle from the Appellant. The motorcycle was fou
abandoned and it was not connected with the Appellant at all.
There was no recovery of stolen amount. The next incriminating
piece of evidence which the prosecution wants to rely on is abou
the recovery of the firearms from a lodge in Nagpur when the
Appellant and the Accused No.3 were arrested. They were found
with the weapons. In that context, the prosecution has relied on
the report of the Ballistic examination. Two weapons were sent f
Ballistic examination. Two bullets, i.e. one recovered from the sp
and the other seized from the hospital and two empties found at
the spot were sent for examination. It was found that both bullet
were fired from the same firearm and one empty also matched
with the bullets. Thus, the prosecution has tried to establish tha
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29 of 32 201-apeal-291-22 (Judgment)
at least one weapon was involved in the incident. In fact, it is
contrary to the prosecution case that two different people had us
two different firearms in firing shots on the first informant.
30. The crucial piece of evidence in this connection is about
seizure of those firearms and sending them for Ballistic
examination. As mentioned earlier, the seizure panchanama and
the evidence of the police officer at Nagpur do not show that tho
firearms were kept in a sealed condition with any labels. T
Police officer – PW-18 has deposed that, those firearms were sen
to the Laboratory at Nagpur. There is no evidence about what wa
the report of Nagpur Laboratory. There was no connecting piece
evidence to show as to how those firearms travelled to F.S.L. at
Kalina, Mumbai. There is nothing to show that, in the meantime,
the weapons were securely kept and that there was no possibilit
of tampering. No connecting evidence is brought on record by th
prosecution.
31. There is another infirmity in the prosecution case about
seizure of the bullet. The Doctor at Shatabdi Hospital had not
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30 of 32 201-apeal-291-22 (Judgment)
noticed any bullet embedded in the wrist of the informant. The
Doctor at Sanjeevani Hospital has deposed that the bullet was
removed from his wrist. That was done on 05/11/2015. There is
again no evidence as to what happened to that bullet till it was
actually seized by the police. The prosecution evidence is that, o
23/01/2016 the bullet was produced by a Nurse in-charge Smt.
Shraddha Shirodkar; but she is not examined. There is nothing to
show that, from 05/11/2015 to 23/01/2016 the bullet was kept
securely and that there was no scope for tampering. At one plac
the police officer has deposed that the bullet was seiz
16/01/2016. These two dates also do not match and, therefore,
even seizure of the bullet from the hospital is not pr
satisfactorily.
32. The evidence regarding seizure of the firearms
seizure of the bullet from the hospital is not satisfacto
prosecution has not ruled out the possibility of tampering with
those articles.
33. There is no other evidence against the Appellant. Thus,
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31 of 32 201-apeal-291-22 (Judgment)
find that there is serious doubt about the prosecution evidence a
the benefit of this doubt must necessarily go to the Appellant.
Therefore, the appellant deserves to be acquitted from this case
34. Hence, the following order:
O R D E R
i) The Appeal is allowed.
ii) The Judgment and order dated 27/12/2021,
passed by learned Additional Sessions Judge, City
Civil & Sessions Court, Borivali Division,
Dindoshi, Mumbai, in Sessions Case No.90
2016 is set aside.
iii) The Appellant is acquitted from all the charges in
Sessions Case No.90 of 2016 before learn
Additional Sessions Judge, Dindoshi, Mumbai.
iv) The Appellant shall be released forthwith if not
required in any other offence.
v) The Appellant shall execute P. R. bond under the
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32 of 32 201-apeal-291-22 (Judgment)
provisions of Section 437A of the Cr.p.c. for an
amount of Rs.30000/- with one or two sureties in
the like amount before being released. Th
formalities of furnishing the P. R. bond and the
sureties shall be completed to the satisfaction of
the trial Court.
vi) The Appeal is disposed of accordingly.
vii) With disposal of the Appeal, the Interim
Application No.3915 of 2022 does not surv
and it is also disposed of.
(SARANG V. KOTWAL, J.)
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1 of 32 201-apeal-291-22 (Judgment)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 291 OF 2022
WITH
INTERIM APPLICATION NO. 3915 OF 2022
Mohd. Shoab Shaukatali Mansuri ..Appellant
Versus
The State of Maharashtra & Anr. ..Respondents
__________
Mr. Amin Solkar a/w. Gaurav Shenoy i/b. Misbaah Solka
Appellant.
Mr. S. R. Agarkar, APP for State/Respondent No.1.
Mr. Aashish Satpute, (Appointed Advocate) for Respondent No.2.
__________
CORAM : SARANG V. KOTWAL, J.
DATE : 6 FEBRUARY 2023
ORAL JUDGMENT:
1. The Appellant has challenged the Judgment and order
dated 27/12/2021, passed by learned Additional Sessions Judge,
City Civil & Sessions Court, Borivali Division, Dindoshi, Mumbai, i
Sessions Case No.90 of 2016. There were four accused in the tria
The Appellant was the accused No.2. The other accused
Accused No.1 Mohd. Naved Salim Parmar, Accused No.3 Rahul
Gokhale
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Ramya Pawar and accused No.4 Sanjaykumar Gagankum
Mahanti. At the conclusion of the trial, the Accused Nos.1 and 4
were acquitted. The Appellant/Accused No.2 and the Accused No
were convicted and sentenced as follows:
i) They were convicted for commission of offence
punishable U/s. 341 r/w. 120(B) of the Indian
Penal Code (for short ‘I.P.C.’) and were sentenced
to suffer S.I. for one month.
ii) They were convicted for commission of offence
punishable U/s.394 r/w. 397 and 120(B) of the
I.P.C. and were sentenced to suffer R.I. for 10
years each and to pay a fine of Rs.5000/- each
and in default of payment of fine to suffer S.I. for
three months each.
iii) They were convicted for commission of offence
punishable U/s.307 r/w. 120(B) of the I.P.C. and
were sentenced to suffer R.I. for 10 years each
and to pay a fine of Rs.5000/- each and
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default of payment of fine to suffer S.I. for three
months each.
iv) They were convicted for commission of offence
punishable U/s.3 r/w. 25 of the Indian Arms Act
and were sentenced to suffer R.I. for three years
each and to pay a fine of Rs.1000/- each and in
default of payment of fine to suffer S.I. for one
month each.
v) They were convicted for commission of offence
punishable U/s.5 r/w. 27 of the Indian Arms Act
and were sentenced to suffer R.I. for three years
each and to pay a fine of Rs.1000/- each and in
default of payment of fine to suffer S.I. for one
month each.
Both of them were granted set off U/s.428 of
Cr.p.c. All the substantive sentences were directed to r
concurrently.
2. Heard Mr. Amin Solkar, learned counsel for the
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4 of 32 201-apeal-291-22 (Judgment)
Appellant, Mr. Agarkar, learned APP for the State/Respondent No
and Mr. Aashish Satpute, learned appointed advocate fo
Respondent No.2.
3. The prosecution case is that, Dakshesh Shah who is the
first informant in this case wanted to send Rs.25000/-
mother in Gujarat. He called his friend Dipak Vora. Both of them
went on a motorcycle to Malad to find a courier to send that
amount. The offices were closed. They were returning back. They
reached Kandivali. The motorcycle was driven by Dakshesh Shah
and Dipak Vora was the pillion rider who was carrying the bag
with money. They were intercepted by a motorcycle. Two person
got down from that motorcycle. The prosecution case is that, the
were the Appellant and the Accused No.3. They snatched the ba
from Dipak Vora. The informant and Dipak Vora resisted. It is
alleged that, both these accused then fired at the informant with
their respective firearms. One bullet got embedded in the wrist o
the informant. The other hit his thigh. The two empties and one
deformed bullet lay on the ground. The accused went away from
there. The informant was taken to the hospital. His statement wa
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recorded and the offence was registered at Kandivali police stati
The investigation was carried out. The spot panchanam
conducted. Two empties and one bullet were seized from the spo
The bullet removed from the informant’s hand was collected. In
the meantime, the police got information that both the accused
were in Nagpur. The police team went to Nagpur and took help o
the local police. The Appellant and the accused No.3 were arrest
from a lodge in Nagpur on 11/12/2015. At the time of their arrest
two firearms were recovered from them. They were seized. The
firearms and the bullets were sent for testing to Ballistic Experts
The investigation was carried out. The test identification parades
were held separately and both of them were identified
statements of the witnesses were recorded and at the conclusion
the investigation the charge-sheet was filed. The case
committed to the Court of Sessions.
4. During trial, the prosecution examined twenty witnesses
including the informant, his friend Dipak Vora, the Doctor who
treated the first informant, the Special Executive Magistrate who
conducted the Test Identification Parades on 08/01/2016 and on
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19/01/2016, the panchas, the Nodal Officers of the tele
service providers, the Ballistic Experts and the Investiga
Officers. The defence of the Appellant was of total denial.
5. Learned Trial Judge relied on the evidence of t
prosecution and in particular on the evidence regarding
identification of the Appellant and the recovery of the weapons.
This is crystallized in paragraph 131 of the impugned Judgment.
6. PW-1 Dakshesh Shah was the first informant. He has
deposed that, he was in the business of selling and purchasing
clothes in the name of Mahavir Enterprise. On 05/11/2015, it was
a holiday for him. He wanted to send some money to his mother
residing at Bhavnagar. He called PW-2 Dipak Vora and told him t
accompany him for going to a courier office at Malad (E). He
asked Dipak Vora to meet him at Borivali. PW-1 had
Rs.25000/- with him. Both of them reached Malad at a
1.30p.m. on PW-1’s scooter. But the offices of the courier compa
were closed. They started to come back from Malad to Borivali.
They decided to go from Kandivali. PW-1 had kept Rs.25000/- in
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7 of 32 201-apeal-291-22 (Judgment)
bag. Since he was driving his scooter, he had given the bag to PW
Dipak. When they were going from Shankar Lane towa
Iraniwadi, they were obstructed by two persons on a motorcycle
They removed the keys of his scooter and started abusing them.
They tried to snatch the bag from PW-2. At that time, PW-1 tried
obstruct them. They pulled the gold chain from his neck. The cha
fell down but PW-1 picked it up. He pushed one of the offenders.
The offender removed a revolver and shot at PW-1. He suffered a
injury on his left hand’s small finger. PW-1 tried to hit him with th
helmet. The other accused also removed the revolver from his p
and shot at PW-1. That caused injury to PW-1’s right leg. The bul
went through his leg causing entry and exit wounds. Both of them
threatened the people who had gathered there and then went
away. PW-1 could see the last four digits of the motorcycle as
7779. PW-1 and PW-2 then went to Shatabdi Hospital at Kandiva
They informed about the incident to the constable on duty at tha
Hospital. PW-1 further deposed that, the motorcycle used by the
accused was red coloured Honda Passion. He was discharged fro
the hospital after 5 to 6 days. The police showed him
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8 of 32 201-apeal-291-22 (Judgment)
motorcycle after 5 to 6 days from the date of incident.
7. While deposing before the Court on 17/01/2019, PW-1
identified the accused No.3 Rahul Pawar in the Court.
categorically stated that, out of the two offenders, only one was
present in the Court. The other one was not seen in the Court. Th
roznama shows that, on 17/01/2019 all the four accused were
present in the Court. That means, though the Appellant was very
much present in the Court, PW-1 did not identify him in the court
on that occasion. He was very specific that the accused other tha
accused No.3 Rahul Pawar was not present in the Court. This is
important in the context of this case. PW-1 identified his own
clothes in the Court.
In the cross-examination, PW-1 deposed that he did no
call the police from the spot of incident. Approximately 20 to 25
people had gathered at the spot at the time of incident, but he d
not speak with anybody. After the incident, he was stunned. The
were buildings and shops near the spot of incident. W
reached the hospital he was conscious. At about 8.00p.m. on the
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9 of 32 201-apeal-291-22 (Judgment)
same day, he left Shatabdi hospital and went to Sanjivani hospit
which was a private hospital. Operation was performed on him. H
specifically deposed that, Dipak had not come with a
containing money. He has further deposed that, no am
belonging to Dipak was robbed.
PW-1 has not deposed in the examination in chief that
he had lodged the F.I.R., but the prosecution case is that the F.I.
was given by him. It was registered as C.R.No.400 of 2015 at
Kandivali police station on 05/11/2015. The police station was
informed at about 2.55p.m. and the F.I.R. was lodged at 4.50p.m
In the cross-examination, PW-1 was confronted with
his statement in the F.I.R. that Dipak had brought Rs.25000/- in a
black rexine bag and that PW-1 himself had brought Rs.20000/-.
These contradictions were brought to his notice. He could not
explain why it was so mentioned in his F.I.R. In further cross-
examination, he admitted that he had not given the broken chai
to the police and that he had also not given his helmet to the
police.
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10 of 32 201-apeal-291-22 (Judgment)
On 08/03/2019, a question in his re-examination was
asked by learned APP to PW-1. In answer to that specific questio
he stated as follows:
“One accused is present today who was absent on the
day when examination in chief was recorded. He is present in
Court today. He is the same person.”
This statement does not throw further light on
identity of the offender. In fact, it emphasizes that the person wh
was not present on 17/01/2019 was present in the Co
08/03/2019 and he was identified by PW-1. This statement does
help the appellant because he was present in the Cou
17/01/2019. PW-1’s evidence was resumed on 07/10/2019 and
again he was asked to identify the accused, and this
identified the Appellant and the accused No.3. On this statement
he was cross-examined on behalf of the Appellant. He tried to
explain that, on the earlier occasions he had seen the accused fr
a long distance from the witness box and not by going near the
accused. But he still could not give clear answers. He admitted
that, he was not sure whether the Appellant was present in the
Court on 17/01/2019. Thus, he has not properly identified the
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11 of 32 201-apeal-291-22 (Judgment)
Appellant in the Court during his deposition.
8. Dipak Vora who had accompanied PW-1, was examined
as PW-2. He has deposed that, on 05/11/2015, at about 12.30p.m
he received a telephone call from PW-1 who asked him to meet
him. They met at Kandivali. PW-2 wanted to deposit some amou
at Malad Diamond market. PW-1 and PW-2 went to M
Diamond Market on PW-1’s scooter; but the offices were closed.
Therefore, they started coming back towards Iraniwadi
Kandivali (W). They were intercepted by two persons o
motorcycle. They started quarreling with PW-1. One of
snatched the bag from PW-2. Both of them fired at t
informant causing injuries. Both the accused then went away on
their two wheeler with PW-2’s bag containing Rs.25000/-. PW-2
then took PW-1 to Shatabdi hospital and admitted him there. He
has deposed that, he was called to identify the accused at Thane
Jail. According to him, he identified both the accused. At the time
of his deposition, he was shown all the accused, but he identified
only accused No.3. Though, the Appellant was present
Court, he did not identify the Appellant.
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12 of 32 201-apeal-291-22 (Judgment)
In the cross-examination, he stated that, PW-1 had not
given him any amount for keeping it in his bag. When he had
taken PW-1 to the hospital, he was there for about one and half
hour. During that period, police officers inquired with him, but
they did not record his statement in the hospital.
9. PW-3 Mukesh Mehta was a pancha for recovery
Rs.2500/- from the Accused No.1. PW-4 Saurabh Shah was a sho
owner from where the CCTV footage had captured the incident. H
had produced that CCTV footage, however, there was no further
connection of that CCTV footage with the prosecution evidence.
PW-5 Gaffar Mistry was a pancha, but he was declared hostile. H
did not support the prosecution case. The prosecution wanted to
show that the accused No.3 had showed his willingness to point
out the spot in presence of this witness and accordingly accused
No.3 had shown the spot. PW-6 Dhaval Shah was a technician wh
had provided the CCTV footage in the pen-drive. PW-8 Aslam Kha
was a pancha in whose presence PW-1’s clothes were seized.
In the context of this case, the evidence of PW-3, PW-4
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PW-5, PW-6 and PW-8 is not very material and this evidence doe
not have much relevance.
10. PW-7 Dr. Prashant Weling was attached to Sanj
Hospital. PW-1 was admitted to that hospital on 05/11/2015. On
examination, he found CLW on volar aspect of left little finger an
entry and exit wound of the size 2 x 2 cm and 1
respectively on the right thigh. He found haemotoma over the
radial styloid and metallic foreign body felt. The metallic body w
removed during the treatment and PW-1 was discharge
08/11/2015.
In the cross-examination, he stated that the b
which was removed by him from the wrist of PW-1 was not hand
over to the police. According to him, he had handed over that
bullet to the Nurse in charge. He had no knowledge whether the
Nurse had handed over that bullet to the police or not.
11. PW-11 Dr. Amit Joshi was attached to Dr. Babasaheb
Ambedkar Municipal Hospital, Mumbai. That hospital was also
known as Shatabdi hospital. He has deposed about the injuries
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14 of 32 201-apeal-291-22 (Judgment)
seen by him. They are as follows:
i) Puncture wound size 2 x 1 x 3cm on the inner
surface of right thigh. The injury was fresh and
simple in nature.
ii) Puncture wound size 1 x 1 x 1cm on the back of
right knee. The injury was fresh and simple in
nature.
iii) Lacerated wound size 5 x 2 x 1cm on left hand
little finger. The injury was fresh and simple in
nature.
There was no reference to any swelling or presence
of any foreign body or bullet having been seen in
the wrist.
In the cross-examination, he stated that the p
officer from Kandivali police station had visited their hospital. He
had not informed the police station. According to him, it was a jo
of the casualty department. He was unable to tell whether the
constable in the casualty department made any inquiry with the
patient. Interestingly, he has deposed that he did not find any
foreign material or substance on the person of the patient and if
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there was any swelling or abrasion on PW-1 he would
recorded the same.
12. PW-10 Sachin Jadhav was working with Sanjivan
hospital as a Technician. On 23/01/2016, the police called him.
The incharge of the operation theater Smt. Shraddha Shirodkar
produced a bullet removed from the patient. That was seized by
the police under panchanama. It is produced on record at Exhibit
104. A sealed packet bearing label with his signature
identified by him in the Court. He also identified the bullet.
In the cross-examination, he stated that, on
05/11/2015, no article was shown by the Doctor to the police
officer before this witness. On 05/11/2015, at about 6.00p.m. the
doctor handed over one article to him. He handed over the same
to the Nurse. The panchanama shows that the deformed bullet
which is described as ‘lead’ was kept in a small plastic box and a
label was affixed on that box bearing the signature of this witnes
But in the cross-examination, he deposed that, at the time of the
panchanama no label was affixed on the plastic container.
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13. PW-9 Dattatray Bandekar was Naib Tahsildar and Specia
Executive Magistrate at the relevant time. He conducted two tes
identification parades on 08/01/2016 and 19/01/2016. He has
deposed about conducting those parades. He produced the test
identification parade panchanamas at Exhibit 99 and 100. In his
substantive evidence he has not elaborated all the details of tho
test identification parades, but he relied on the test identification
parade panchanamas.
In the cross-examination, he admitted that, he did not
pay attention as to whether any CCTV camera or monitor was
available in the jail. He had not given description of the accused
to the Jailor. Four dummies were common in both the parades. In
both the parades, two different accused were identified. When h
visited the place of the test identification parade, the accused an
the dummies were already present. He had not given description
of the accused to the Jail Authorities. He had not made enquiry
with the Jailor whether prior to him any witness had visited the
Jail or not. The memo of test identification parade dat
08/01/2016 is produced on record at Exhibit 99. The
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memorandum shows that PW-2 had identified the Appellant and
the accused No.3. There were in all 12 dummy persons kept in tw
groups. The memorandum of test identification parade
19/01/2016 is produced on record at Exhibit 100. In this parade,
PW-1 had identified the Appellant, as well as, the accused No.3.
The same memorandum panchanama mentions that the Special
Executive Magistrate had asked PW-1 Dakshesh Shah as to why
was not present on 08/01/2016 for the first test identification
parade. At that time, PW-1 had answered that, on that date i.e. o
08/01/2016 he was present in Thane Central Jail in connection
with some other case. This answer raises serious doubt about th
investigation. There was no reason for PW-1 to remain present in
Thane Central Jail on 08/01/2016 and not attending the f
parade dated 08/01/2016. No satisfactory explanation is offered.
He has not even referred to this in his deposition. Therefore, the
entire procedure is under serious doubt.
14. PW-12 Baby John and PW-13 Sangdev Godse were two
Nodal Officers working with two different service provide
mobile phone network. However, the prosecution has no
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18 of 32 201-apeal-291-22 (Judgment)
connected their evidence with any other material. There is nothi
to show that, either the Appellant or the accused No.3 was using
particular phone number regarding which these Nodal Officers
could give the evidence. In this view, the evidence of PW-12 and
PW-13 is absolutely irrelevant.
15. PW-14 Namdev Rathod was attached to Kandivali police
station on 05/11/2015. He received the information telephonicall
about the firing. He visited the OPD of the Dr. Babas
Ambedkar Hospital and made inquiries with PW-1. He w
informed about the incident. He recorded PW-1’s statement on h
laptop. PW-14 then obtained the crime registration number by
making a phone call to the police station. He obtained
signature of PW-1 on that statement. He returned to the police
station and registered the offence vide C.R.No.400 of 2015. He h
deposed that, PHC Sundkar had brought the blood stained clothe
of PW-1 to the police station.
In the cross-examination, he admitted that in ever
Municipal or Government hospital, one EPR register is kept and
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19 of 32 201-apeal-291-22 (Judgment)
the information of firing should have been registered in the EPR
register. He stated that, he has not produced any record of EPR
register of that hospital.
16. PW-15 API Dnyaneshwar Kadam had conducted the spot
panchanama. The articles, as mentioned earlier, were collect
from the spot. He recorded the statement of PW-2. O
16/01/2016, one staff member of the Sanjeevani Hospit
produced the lead piece. It was seized under the panchanama. H
has further deposed that, he prepared the panchanama
23/01/2016 which is produced on record at Exhibit 104. The spo
panchanama is produced on record at Exhibit 160 which mention
seizure of two empties and one deformed bullet.
17. PW-16 Kutbuddin Mulani was attached to Forens
Laboratory at Kalina. On 22/01/2016, seven sealed packets were
received from the Kandivali police station under a covering lette
Exhibit 171. Those samples were sent to the Ballistic departmen
where PW-16 was working. Those articles included two empties
and a deformed bullet found at the spot. On 01/02/2016, under a
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20 of 32 201-apeal-291-22 (Judgment)
covering letter Exhibit 174 another deformed copper jac
bullet was received. One ballistic examination report was produc
on record at Exhibit 172. It mentions that, two deformed bullets
were sent in this case. The first bullet sent on 22/01/2016 and th
other one sent on 30/01/2016 were fired from the same weapon
The second bullet was sent as Exhibit 1 under ML Case No. BL-
99/16. The first bullet was sent under ML Case No.BL-71/16. The
prosecution case is that the second bullet was collecte
23/01/2016 from the hospital. It was removed from the hand of
the first informant.
18. In this context, the evidence of PW-17 Yogita Patait is
also important. She was also working with the Forensic Science
Laboratory at Kalina. She has produced the Ballistic re
showing that, two weapons were sent to examine whether the
bullets recovered in this case were fired from those weapons. Th
Ballistic examination report is produced on record at Exhibit 194
It mentions that the test was conducted for two country-made
pistol (Exhibit 1 and 2). It showed that deformed bullet seized in
the hospital (which was sent under BL-99/16/Exh.1) and
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21 of 32 201-apeal-291-22 (Judgment)
empty found at the spot (which was sent under BL-71/16/Exh.1)
and the bullet found at the spot (which was sent under BL-71/16/
Exh.3) were fired from the same weapon.
19. PW-18 API Sachin Lule was attached to Tahsil police
station, Nagpur at the relevant time. On 10/12/2015, at about
3.00a.m. API Dahiphode attached to Kandivali police sta
approached him and told him about the offence. Both of them
together searched for the Appellant by using his mobile phone’s
location. They arranged to lay a trap in a lodge. They caught the
appellant at 5.30a.m. from a lodge. Apart from the Appellant,
Accused No.3 was also arrested. Two firearms were seized from
the person of the Appellant and accused No.3. The panchanama
produced on record at Exhibit 199.
In the cross-examination, it is admitted and it is also
seen from that panchanama that there was no mention of any
sealing or labeling of the articles. This witness has fu
admitted in his cross-examination that the articles were sent to
Ballistic Expert, Nagpur and the report was received fro
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22 of 32 201-apeal-291-22 (Judgment)
Ballistic Expert at Nagpur. He has not given any linking evidence
as to how the weapons were handed over to the police officers o
Kandivali police station and as to how they were sent to Forensic
Science Laboratory, at Kalina.
20. PW-19 P.I. Sudhir Dalvi was attached to Kandivali police
station on 05/11/2015. He had conducted some part of
investigation. He has deposed about collecting CCTV footage. An
abandoned motorcycle bearing No.MH43-T-7779 was recovered
09/11/2015. By collecting the information about the telephone
numbers the Appellant was traced to Nagpur. This witness then
deposed about the recovery made at the instance of accused No
He had arranged for conducting the test identification parade.
21. PW-20 Dadasaheb Gade was a pancha for spot
panchanama which is produced on record at Exhibit 160.
22. Learned counsel for the appellant submitted that
prosecution has failed to prove its case beyond reasonable doub
There are various contradictions in the main story. PW
deposed that there was only one bag containing Rs.25000/- whic
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23 of 32 201-apeal-291-22 (Judgment)
he had brought from his house; to be handed over to a courier
agency. However, PW-2 has deposed that, Rs.25000/- were not
brought by PW-1 but were brought by PW-2 himself as he wanted
to pay to some person in Diamond business. Learned counsel
therefore, submitted that the genesis of the incident it
suppressed. The contradictions from the F.I.R. are broug
record. Therefore, there is a doubt about the prosecution story. T
identification of the accused in the Court is not proper. There is n
proper identification of the Appellant. The test identifica
parade can only be used for corroboration. Even regarding the
incident, there are too many doubtful circumstances. The firearm
were not shown to the witnesses. The firearm is not
connected with the Appellant. The panchas for recovery of the
weapons at Nagpur are not examined. There is no connect
piece of evidence to connect the firearms with the Appellant.
23. Shri. Agarkar, learned APP for the State, as well as, Shri
Satpute, learned Appointed Advocate for the Respondent
submitted that, though there is some discrepancy in th
identification before the Court, ultimately, PW-1 did identify the
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24 of 32 201-apeal-291-22 (Judgment)
Appellant in the Court. They submitted that the test identificatio
parades were held immediately in the month of January 2016 an
in two separate parades, PW-2 and PW-1 have consiste
identified the Appellant, as well as, accused No.3. Therefore, the
identity is sufficiently established. The Ballistic Expert’s
shows that the empties and bullets which were recovered from t
spot and from the hospital matched with the firearm recovered i
in this case and, therefore, there is a strong connecting evidence
between the Appellant and the firearm. The first informant had
suffered serious injuries on his hand and on his thigh
therefore, the offences under sections 397 and 307 of the I.P.C. a
made out. They submitted that the discrepancy about the amoun
and as to who had brought that amount hardly matters because
cannot be overlooked that the first informant had in fact suffered
firearm injuries to his hand and to his thigh. Therefore
evidence cannot be brushed aside.
24. I have considered these submissions. As far as,
occurrence of the incident is concerned, there is no doubt that
some serious incident had taken place on 05/11/2015 at the spo
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25 of 32 201-apeal-291-22 (Judgment)
mentioned by PW-1 and PW-2. It cannot be denied that PW-1 had
suffered firearm injuries. The medical evidence sufficient
corroborates this fact. The informant had first gone to Shatabdi
hospital and then to Sanjeevani Hospital. Both the doctors have
described the injuries. There is some discrepancy about the bulle
embedded in the wrist of the informant, but the fact still remains
that the informant had received firearm injuries; at least on his
thigh. Therefore, it cannot be said that no incident had taken
place. The prosecution needed to connect the present appellant
with the incident.
25. There is important discrepancy about the amount which
was allegedly taken away by the offenders. PW-1 has deposed th
he had brought Rs.25000/- and that amount was kept in a bag.
That bag was kept by PW-2 with him as, PW-1 was driving the
motorcycle. Whereas, PW-2’s version is different. According to h
he had brought Rs.25000/- from his house and it was kept in a
bag. PW-1 in his F.I.R. has stated that the amount of Rs.20000/-
was brought by him and there was also another amou
Rs.25000/- brought by PW-2. There was really no reason as to wh
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26 of 32 201-apeal-291-22 (Judgment)
this discrepancy should have occurred in the depositions of PW-1
and PW-2. But leaving aside this discrepancy, there is no reason
disbelieve that at least Rs.25000/- in a bag were taken away by t
offenders. Having said this, the discrepancy in the evidence of PW
1 and PW-2 has still remained unexplained.
26. Therefore, crucial question would be about the identity
of the culprits and to see whether there is any connecting piece
evidence. So far as, identity of the offenders is concerned, the
identification in the Court is the substantive piece of evidence. In
this regard, PW-2 has not identified the Appellant in the Court.
Even in the re-examination he had identified only accused No.3.
is specifically recorded that all the accused were present in the
Court on that date except the absconding accused. That means,
though the Appellant was very much present in the Court at the
time of deposition of PW-2, he was not identified by PW-2.
27. Similar is the case with PW-1. His examination in chief a
the first instance was recorded on 17/01/2019. At that time he
had identified only accused No.3. The record shows that, on that
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27 of 32 201-apeal-291-22 (Judgment)
date the Appellant was very much present in the Court, but PW-1
was very categorical in stating that there were two persons who
had committed the offence; out of which only one person i.e.
Accused No.3 was present in the Court on that date. He was aske
a question in re-examination on 08/03/2019. Even at that time,
his answer did not show that he identified the Appellant in the
Court. On the third occasion i.e. on 07/10/2019, for the first time
he deposed that he identified the Appellant in the Court. Thus, in
the Court during deposition he has not properly identified the
Appellant. While it is true that his deposition is recorded after
about 4 years from the occurrence of the incident, but that was n
because of any fault on the part of the Appellant. Therefore, no
benefit can be given to the prosecution in this behlaf.
28. The test identification parade evidence can at the highe
be a corroborative piece of evidence, but as discussed earlier, ev
that evidence is not satisfactory. As mentioned earlier, on the fir
occasion i.e. on 08/01/2016 though, PW-1 was very much presen
in the Thane Central Prison, he was not made to identify the
suspects. He identified the suspects only on the second occasion
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28 of 32 201-apeal-291-22 (Judgment)
i.e. on 19/01/2016. There is no explanation forthcoming as to wh
PW-1 was present in the Thane Central Prison on 08/01/2016.
Therefore, both these test identification parades are not free fro
doubt. Thus, I find that the evidence regarding the identification
the Appellant is totally unsatisfactory.
29. There is no recovery of either the stolen amount or the
motorcycle from the Appellant. The motorcycle was fou
abandoned and it was not connected with the Appellant at all.
There was no recovery of stolen amount. The next incriminating
piece of evidence which the prosecution wants to rely on is abou
the recovery of the firearms from a lodge in Nagpur when the
Appellant and the Accused No.3 were arrested. They were found
with the weapons. In that context, the prosecution has relied on
the report of the Ballistic examination. Two weapons were sent f
Ballistic examination. Two bullets, i.e. one recovered from the sp
and the other seized from the hospital and two empties found at
the spot were sent for examination. It was found that both bullet
were fired from the same firearm and one empty also matched
with the bullets. Thus, the prosecution has tried to establish tha
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29 of 32 201-apeal-291-22 (Judgment)
at least one weapon was involved in the incident. In fact, it is
contrary to the prosecution case that two different people had us
two different firearms in firing shots on the first informant.
30. The crucial piece of evidence in this connection is about
seizure of those firearms and sending them for Ballistic
examination. As mentioned earlier, the seizure panchanama and
the evidence of the police officer at Nagpur do not show that tho
firearms were kept in a sealed condition with any labels. T
Police officer – PW-18 has deposed that, those firearms were sen
to the Laboratory at Nagpur. There is no evidence about what wa
the report of Nagpur Laboratory. There was no connecting piece
evidence to show as to how those firearms travelled to F.S.L. at
Kalina, Mumbai. There is nothing to show that, in the meantime,
the weapons were securely kept and that there was no possibilit
of tampering. No connecting evidence is brought on record by th
prosecution.
31. There is another infirmity in the prosecution case about
seizure of the bullet. The Doctor at Shatabdi Hospital had not
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30 of 32 201-apeal-291-22 (Judgment)
noticed any bullet embedded in the wrist of the informant. The
Doctor at Sanjeevani Hospital has deposed that the bullet was
removed from his wrist. That was done on 05/11/2015. There is
again no evidence as to what happened to that bullet till it was
actually seized by the police. The prosecution evidence is that, o
23/01/2016 the bullet was produced by a Nurse in-charge Smt.
Shraddha Shirodkar; but she is not examined. There is nothing to
show that, from 05/11/2015 to 23/01/2016 the bullet was kept
securely and that there was no scope for tampering. At one plac
the police officer has deposed that the bullet was seiz
16/01/2016. These two dates also do not match and, therefore,
even seizure of the bullet from the hospital is not pr
satisfactorily.
32. The evidence regarding seizure of the firearms
seizure of the bullet from the hospital is not satisfacto
prosecution has not ruled out the possibility of tampering with
those articles.
33. There is no other evidence against the Appellant. Thus,
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31 of 32 201-apeal-291-22 (Judgment)
find that there is serious doubt about the prosecution evidence a
the benefit of this doubt must necessarily go to the Appellant.
Therefore, the appellant deserves to be acquitted from this case
34. Hence, the following order:
O R D E R
i) The Appeal is allowed.
ii) The Judgment and order dated 27/12/2021,
passed by learned Additional Sessions Judge, City
Civil & Sessions Court, Borivali Division,
Dindoshi, Mumbai, in Sessions Case No.90
2016 is set aside.
iii) The Appellant is acquitted from all the charges in
Sessions Case No.90 of 2016 before learn
Additional Sessions Judge, Dindoshi, Mumbai.
iv) The Appellant shall be released forthwith if not
required in any other offence.
v) The Appellant shall execute P. R. bond under the
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32 of 32 201-apeal-291-22 (Judgment)
provisions of Section 437A of the Cr.p.c. for an
amount of Rs.30000/- with one or two sureties in
the like amount before being released. Th
formalities of furnishing the P. R. bond and the
sureties shall be completed to the satisfaction of
the trial Court.
vi) The Appeal is disposed of accordingly.
vii) With disposal of the Appeal, the Interim
Application No.3915 of 2022 does not surv
and it is also disposed of.
(SARANG V. KOTWAL, J.)
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