Tags Murder

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Civil), 345-346 of 2012, Judgment Date: Feb 12, 2016

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                  CRIMINAL  APPEAL  NOS. 345-346  OF  2012


STATE OF MAHARASHTRA                                            APPELLANT(S)

                                  :VERSUS:

SYED UMAR SAYED ABBAS & ORS.                                     RESPONDENTS



                               J U D G M E N T
Pinaki Chandra Ghose, J.

These appeals, by special leave, have been  directed  against  the  judgment
and order dated 15.9.2009 passed by the High Court of Judicature  at  Bombay
in Criminal Appeal No.1133 of 2003 and  Criminal  Appeal  No.1156  of  2003,
whereby  the  High  Court  allowed  the  criminal  appeals  filed   by   the
respondents herein and acquitted them.

The  brief  facts  necessary  to  dispose  of  these  appeals  are  that  on
12.8.1995, at about 3.00 P.M., Rajendra Rajaram Gupta (deceased), who was  a
social worker belonging to a particular political party and had  a  shop  in
Mahim area of Mumbai, was sitting in Ganesh festival  Pandal  and  was  busy
talking with one Rajaram Sarfare  (PW6-injured  eye-witness),  who  was  the
Contractor for  decoration  of  the  Ganesh  festival  Pandal.  As  per  the
prosecution story, when Rajendra Rajaram Gupta  and  PW-6  were  talking  to
each other while sitting on  chairs  in  the  Pandal,  two  unknown  persons
entered the Pandal from Kapad Bazaar Road, opened fire on  Rajendra  Rajaram
Gupta and pumped many bullets in his head, chest and various  parts  of  his
body at point blank range. Allegedly, the said two assailants were  escorted
by three other persons. The firing noise created  commotion  in  the  Pandal
and while PW6 tried to run, he was also hit by one bullet and he fell  down.
The assailants managed to escape. The deceased Rajendra  Rajaram  Gupta  was
taken to Hinduja  Hospital  immediately,  where  he  was  declared  dead  on
arrival. The FIR  came  to  be  immediately  lodged  at  4:15  P.M.  by  one
eyewitness Rajesh  Tanaji  Akre  (PW-5),  who  happened  to  have  seen  the
incident from the first floor gallery of his residential building which  was
abutting to the said Pandal.

After  investigation,  charges  were  framed  against  13  accused   persons
(Accused Nos.1 to 13) under Sections 302, 307, 120B read with Section 34  of
the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) and  Sections
25, 27, and 29 of the Arms Act, 1959. Accused Nos.2, 5, 6, 8, 10 and 13  had
either died or were absconding during the trial. Hence, the trial  proceeded
against the remaining accused i.e. Accused Nos.1, 3, 4, 7, 9, 11 and 12.

The Trial Court  by  its  judgment  and  order  dated  23.07.2003  convicted
Accused Nos.1, 3, 4, 9 and 12 for offences  punishable  under  Sections  302
and 307 read with Section 120-B of the IPC. Accused Nos.1, 3, 4 and 12  were
also convicted for the offence punishable under Section 27 of the Arms  Act,
whereas Accused No.9 was also convicted for  the  offence  punishable  under
Section 25 of the Arms Act. Original Accused Nos.7 and 11 were acquitted  of
all the charges. The High Court vide the  impugned  judgment  acquitted  all
the accused of all the charges by overturning  the  judgment  of  the  Trial
Court.

The State of Maharashtra has filed these appeals against  the  acquittal  of
Accused Nos.1, 3, 4,  9  and  12.  Learned  Additional  Government  Advocate
appearing for the State of Maharashtra has inter alia  reiterated  that  the
judgment of the Trial Court  is  well  reasoned  and  well  considered.  The
learned counsel for the respondents have rebutted  the  submissions  of  the
appellant by relying upon the judgment of the High Court  pressing  that  it
had gone deeper into the case that the prosecution could not bring home  the
charges levelled against the accused.

The Trial Court convicted the  accused  respondents  on  the  basis  of  the
testimonies of five eye-witnesses -  Hemant  Parshuram  Akre  (PW1),  Ganesh
(PW4), Rajesh Tanaji Akre (PW5), Rajaram Sarfare (PW6) and  Kishor  Maniklal
Damaniya (PW7), out of which PW6 was  the  injured  eye-witness.  The  Trial
Court found their depositions to be corroborative of each other and also  in
tandem with  the  testimonies  of  PW18  and  PW21,  the  Special  Executive
Magistrates, who conducted the Test Identification Parade  of  the  accused.
The Trial Court held that  it  was  conclusively  established  by  the  Test
Identification Parade and eye-witness testimonies that A1 and A12 had  fired
on the deceased. The recovery of the weapon along with the ballistic  report
further  strengthens  the  conclusion.  The  Trial  Court  found  that   the
prosecution has proved its  case  beyond  reasonable  doubt  and  hence  the
accused were convicted of the offences charged after being found guilty.

However, the High Court pointed  out  serious  lacunae  in  the  above  said
evidences and hence the conviction order was set aside and  the  benefit  of
doubt was given to the accused. The High Court  is  of  the  view  that  the
Trial Court had placed  unwarranted  reliance  on  the  Test  Identification
Parades in arriving at the guilt of  the  accused  when  the  same  suffered
major discrepancies along with the inconsistencies  of  the  depositions  of
the eyewitnesses to that of the injured eyewitness’ testimony.

We have perused the documentary  and  oral  evidences  on  record  and  gone
through the submissions of both  -  the  appellant  State  as  well  as  the
respondents. We shall now examine each and every contention in light of  the
arguments adduced before us in the Court. In our considered view,  the  main
issue in the case is whether  the  identity  of  the  accused  was  properly
established with the aid of the testimonies of the eyewitnesses and  whether
the Test Identification Parades  were  conducted  properly.  All  the  other
evidences are secondary and need to be examined only if the accused  can  be
linked to the crime. To decide the same we shall analyse the depositions  of
the eye-witnesses.
There are five eye-witnesses, including the injured  eye-witness.  We  shall
peruse their statements one by one. PW1 allegedly  recognized  two  persons,
who shot at the deceased and the  injured  PW6,  as  A1  and  A12,  but  his
evidence suffers few infirmities. He stated that he first heard  some  shots
and then some noise like  bursting  of  firecrackers  and  saw  the  accused
firing at PW6 when he was running towards  the  Police  Chowky  nearby.  The
major inconsistency is with respect to his  deposition  regarding  the  Test
Identification Parade. He stated that  in  the  Test  Identification  Parade
held on 30.8.1995, at Arthur Road Prison, he  had  identified  four  persons
out of 10-12 persons standing in the row. According to the prosecution,  the
Test  Identification  Parade  was  conducted  by  PW21  (Special   Executive
Officer) on 30.9.1995. Even if it is presumed that the date  was  stated  to
be incorrect by  mistake,  the  fact  remains  that  PW21  deposed  that  he
conducted 2 Test Identification Parades on that day. In  the  first  Parade,
he placed A1 and one more accused who died  later  and  in  the  second,  he
placed A3 and A4 for identification. At no point of  time,  4  accused  were
put together for identification for PW1 to identify out of the whole  group.
This contradiction shows that it is not  clear  as  to  whether  he  rightly
identified the accused. Also, he stated that in another  parade  held  after
almost a year,  he  identified  A12.  That  parade  was  conducted  by  PW18
(another Special Executive Officer). We are aware that A12 was  arrested  by
the first week of September, 1996 and thus the  Test  Identification  Parade
was conducted on 4.10.1996, but it is too  large  a  gap  for  PW1  to  have
remembered his face.

Also, PW1 had stated that he  had  seen  the  deceased  receiving  a  bullet
injury on his forehead but as per  the  post-mortem  report,  there  was  no
injury on the forehead of the deceased as he had been attacked from  behind.
This makes the testimony of PW1 even more vulnerable.

We now proceed to peruse the evidence of PW4 another  eye-witness,  who  was
the son of the deceased and was sitting in his grocery shop at the  time  of
the incident and was making payment to one Bhatia who was  not  examined  by
the prosecution. Even PW4 heard the noise of bursting of some  crackers  and
then he could see what was happening in the Pandal and he recognized  A1  in
the parade conducted by PW21 on 30.9.1995 and A12 in  the  parade  conducted
by PW18 on 4.10.1996.

PW5 is the first informant who stated that he witnessed the  incident  while
he was standing in the  first  floor  gallery  of  his  building  which  was
abutting the Pandal. He also deposed that he had identified A1  and  A12  in
the Test Identification Parades conducted by PW21  and  PW18,  respectively.
But it is not clear whether he could have witnessed the  incident  from  the
first floor as the setting up of the Pandal was completed and  the  work  of
putting tarpaulin over the Pandal was done and only the  decoration  of  the
frill was going on. It is also pertinent to note  that  PW5  deposed  before
the Court that he does not remember the  physical  appearance  of  both  the
suspects seen by him on the date of incident. It  is  doubtful  whether  PW5
could have witnessed the incident in the state of  commotion  when  everyone
was running for shelter due to firing.

PW6 is the injured eye-witness who sustained  bullet  injuries.  He  deposed
that he could not see any of the accused and while he  was  talking  to  the
deceased, he received a  bullet  injury  and  fell  unconscious.  He  stated
nothing about the fact that he was running to the Police Chowky when he  got
injured. To that extent his testimony does  not  support  the  case  of  the
prosecution as the other prosecution witnesses  stated  that  they  saw  the
accused falling down due to the injury while  he  was  running  towards  the
Police Chowky.

The prosecution adduced the testimony of PW7 as an eye-witness, but PW7  did
not identify any of the accused/  respondents  in  the  Test  Identification
Parade which can be concluded from the substantive evidence.

The recovery of arms need not be discussed by us in detail as the  same  has
already been discussed by the High Court to arrive at  the  conclusion  that
it is not trustworthy and incriminating against the respondents.

Learned counsel for the accused/respondents has cited the decision  of  this
Court in Siddanki Ram Reddy v. State of Andhra Pradesh, [(2010) 7  SCC  697]
wherein it was held:

“When an attack is made on the injured/deceased by a mob in a crowded  place
and the eyewitnesses had little time to see  the  accused,  the  substantive
evidence should  be  sufficiently  corroborated  by  a  test  identification
parade held soon after the occurrence and any  delay  in  holding  the  test
identification parade may be held to be fatal to the prosecution case.”

It is very clear that in the present case the incident  of  firing  occurred
in the circumstances wherein much  time  was  not  available  for  the  eye-
witnesses to clearly see the accused. In such a situation, it  was  of  much
more importance that the Test Identification Parades were  to  be  conducted
without any delay. The first Test Identification Parade  was  held  by  PW21
after about 1½  months of  the  incident.  The  second  Test  Identification
Parade was conducted by PW18 after more than a year of  the  incident.  Even
if it is taken into account that A12 was arrested after a  year  and  within
one month thereafter the test Identification Parade was conducted, still  it
is highly doubtful whether  the  eye-witnesses  could  have  remembered  the
faces of the accused after such a long  period.  Though  the  incident  took
place in broad daylight, the time for which the eye-witnesses could see  the
accused was not sufficient for them to observe the  distinguishing  features
of the accused, especially because there was a commotion created  after  the
firing and everyone was running to shelter themselves from the firing.

In view of the discussion  in  the  foregoing  paragraphs,  we  are  of  the
considered view  that  the  testimonies  of  the  witnesses  suffer  various
infirmities and contradictions and the Test Identification  Parade  was  not
conducted properly and was delayed. The High Court  is,  therefore,  correct
in giving the benefit of doubt to the accused  as  their  identity  had  not
been clearly established by the prosecution.

Thus, in the light of the above discussion, we find no grounds to  interfere
with the judgment passed by the High Court. The  appeals  are,  accordingly,
dismissed.

                                    …......................................J
                                                      (Pinaki Chandra Ghose)


                                     ….....................................J
New Delhi;                                                    (R.K. Agrawal)
February 12, 2016.




ITEM NO.1A               COURT NO.10               SECTION IIA
(For judgment)
               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

                    Criminal Appeal  No(s).  345-346/2012

STATE OF MAHARASHTRA                               Appellant(s)

                                VERSUS

SYED UMAR SAYED ABBAS & ORS.                       Respondent(s)



Date : 12/02/2016      These appeals were called on for pronouncement
            of judgment today.


For Appellant(s) Mr. Kunal A. Cheema, Adv.
                       Mr. Nishant Ramakantrao Katneshwarkar, AOR
                       Mr. Yogesh Ahirrao, Adv.
                       Mr. Vilas Giri, Adv.

For Respondent(s)      Mr. Mushtaq Ahmad, AOR

                                            *****

      Hon'ble Mr. Justice Pinaki Chandra  Ghose  pronounced  the  reportable
judgment of the Bench comprising His Lordship and Hon'ble Mr.  Justice  R.K.
Agrawal.
      The appeals are dismissed in terms of the signed reportable judgment.


      (R.NATARAJAN)                                   (MADHU NARULA)
       Court Master                                    Court Master
            (Signed reportable judgment is placed on the file)