Judgment:
J.G. Chitre, J.
1. The appellants are hereby assailing correctness, propriety and legality of the judgment and order passed against them by the Additional Sessions Judge for Greater Mumbai in Sessions Case No. 949 of 1996, whereby the appellants are convicted for offences punishable under Sections 392 r/w Section 34 of Indian Penal Code and were sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs. 3000/-, in default to undergo rigorous imprisonment for six months.
2. The prosecution case, in brief, is that on 24/9/1994 P.W. Raju Chandwani was sitting in his office with Secretary, May Punjabi, the prosecution witness. It is alleged by the prosecution that at about 4.30 P.M. or so, the appellants came armed with revolver, choppers and at the point of these weapons, looted cash of Rs. 15,000/- from P.W. Raju Chandwani. The appellants, as per prosecution case, sat in a car and ran away from the spot. The number of the said car was noticed by Chandwani. Chandwani reported the incident to Vakola Police Station. The officers of the Vakola Police Station came to the spot, drew panchanama and after recording F.I.R. of Raju Chandwani, investigation started. One of the appellants was involved in another criminal prosecution also. It seems that others were also involved in criminal prosecution. When they were brought to Vakola Police Station, Raju Chandawani saw them, when they were alighted from the Motor van, he identified them and informed the concerned police officers about that. No identification parade has been held except this one. The prosecution witness Raju Chandwani identified the appellants while giving evidence in the Court. The learned trial Judge accepted the prosecution evidence and concluded that the prosecution had proved the guilt of the appellants beyond reasonable doubt and therefore, he passed the order of conviction and sentence, which has been assailed by this appeal.
3. Miss Bhojane, submitted that when no legal test identification parade was held, solitary witness Raju Chandawani claimed to have identified the appellants and the learned trial Judge accepted that identification as legal and correct identification and held that the appellants were the culprits who committed robbery in the shop of Raju Chandwani. She submitted that the said conviction cannot be upheld and therefore, the appellants be acquitted. Shri B.R. Patil tried his best to support the judgment of conviction and sentence, but keeping in view the legal flaws in the way of conducting the trial he had his own limitations.
4. Counsel appearing for the appellants placed reliance on the judgments of Supreme Court in the matters of
1. Kanan and Ors. v. State of Kerala, reported, in 179 CRI L.J. 919.
2. Mohanlal Gangaram Gehani v. State of Maharashtra, reported in 1982 SCc 334.
3. Mohd. Abdul Hafeez v. State of Andhra Pradesh, reported in 1983 SCC 139.
5. In these three judgments, the Supreme Court has held that, when a witness identifies the accused in the Court, when he happens to be giving evidence in the trial and when the accused happens to be a stranger to him, such evidence of identification becomes valueless in the absence of test identification parade. In this case, no tests identification parade has been held. The evidence which has been adduced by the prosecution is that, P.W. Raju Chandwani saw all these appellants in Vakola Police station, when they were alighting from the police van and nothing more than that. In the matter of Ramkishan Mithanlal Sharma and Ors. v. State of Bombay, reported in : 1955CriLJ196 , the Supreme Court has held that the identification of the witnesses in the presence of police, which amounts to a statement made to such police officers during the course of investigation, is hit by provisions of Section 162 of Criminal Procedure Code. Thus, the evidence of P.W. Raju Chandwani in context with identification of the appellants before the police, as indicated above, is absolutely of no use for prosecution. If that is ignored, what remains is the statement made on oath by P.W. Raju Chandwani identifying the appellants in the Court. The incident pertains to the year 1994 and this witness was giving evidence in the year 1998. When this witness was giving evidence after nearly 4 years, and when all the appellants were strangers, it is not a good evidence for basing conviction.
6. The learned trial Judge has not considered the evidence in proper perspective and has dealt with the evidence in a sweeping way and therefore, he has landed in error of accepting that evidence and basing conviction on it. When the judgment is studded with such reasons leading to the conclusion of the guilt of the appellants, that judgment cannot be upheld. It will have to be set aside. The appellants will have to be acquitted of the charge levelled against them.
7. Thus, the judgment and order of conviction and sentence assailed by this appeal stands set aside and appellants stand acquitted. Unfortunately, the appellants namely Dilip Thapa and Gorak Jadhav have undergone the sentence till they reached the stage of hearing. The bail bond furnished by Vivek Vowale stands discharged. No interference in respect of the order of the disposal of the property while deciding this appeal.
The parties are directed to act upon the copy of this order duly authenticated by the Sheristedar of this Court.