STATE OF MAHARASHTRA Vs. SYED UMAR SAYED ABBAS & ORS
Section 34 - Acts done by several persons in futherance of common intention
Section 302 - Punishment for murder
Section 307 - Attempt to murder
Section 120 - Concealing design to commit offence punishable with imprisonment
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)
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