| SooperKanoon Citation | sooperkanoon.com/1185265 |
| Court | Mumbai High Court |
| Decided On | Jan-27-2016 |
| Case Number | Criminal Appeal No. 249 of 2014, 230, 286, 329 & 397 of 2014 with Criminal Application No. 1213 of 2015 |
| Judge | The Honourable Mrs. Justice Sadhana S. Jadhav |
| Appellant | Amardeep Tarshem Singh |
| Respondent | State of Maharashtra |
1. Appellant in Criminal Appeal No.329 of 2014 and Appellant Nos.1 and 2 in Criminal Appeal No.249 of 2014 are convicted for offence punishable under section 395 of Indian Penal Code and they are sentenced to suffer rigorous imprisonment for 7 years and to pay fine of Rs.1,000/- each, in default to suffer rigorous imprisonment for 6 months. Appellant in Criminal Appeal No.286 of 2014, Appellant Nos.1 and 2 in Criminal Appeal No.230 of 2014 and Appellant in Criminal Appeal No.397 of 2014 are convicted for offence punishable under section 412 r/w section 34 of Indian Penal Code and they are sentenced to suffer rigorous imprisonment for 5 years and to pay fine of Rs.1,000/- each, in default to suffer rigorous imprisonment for 6 months by Addl. Sessions Judge, Gr. Bombay vide Judgment and Order dated 06/03/2014 in Sessions Case No.499 of 2010. Hence, these appeals.
2. Such of the facts necessary for the decision of these appeals are as follows :
(i) That one Deepak Lalwani approached Dindoshi Police Station on 28/03/2010 and lodged a report alleging therein that he happens to be working as Asst. Production Manager in KGK Diamonds India Private Limited.
(ii) That on 28/03/2010 at about 9.00 a.m., he went to his Borivali office. He was instructed by his boss Devendra to collect diamond parcels from Malad office and bring them to Borivali office. Pursuant to the said direction, Deepak along with driver Ajay Mishra and one delivery boy Manohar Hatate went to Malad in an Innova Car, owned by the company and reached Malad office at about 9.45 a.m. He collected 35 parcels which were received through courier. 15 parcels were kept in one bag along with 12 letters and 20 parcels were kept in another bag. The bag containing 20 parcels was with Deepak and Manohar Hatate was holding the other bag. They had proceeded to Borivali.
(iii) When they reached Datta Mandir Square on Daftari Road, a silver colour Maruti Zen intercepted the company's vehicle. Maruti car had red beacon on the top of the car and the words "Bharat Sarkar" was inscribed on the rear side of the car. Three persons alighted from the said Maruti Zen. One of them informed the complainant and the driver that this is an Income-Tax raid and that they should call the boss Nitin Dhadda.
(iv) They were asked to alight from the car. One of the person had snatched the bag containing the diamonds from P.W. 2 Manohar. The other bag was also snatched and the third person had snatched the keys of the car from the driver. Complainant was pushed into Maruti car by all the culprits and they had taken the car towards Borivali Western Express Highway. The number of the car was MH - 01 AC 9725. Near Samata Nagar fly over, the culprits had directed the complainant to alight from the car. Upon his refusal, the culprits had brandished the revolver. Complainant and others were pushed from the car and thereafter the culprits ran away with the car towards Thakur complex.
(v) Complainant had attempted to chase the car in an auto-rickshaw. They found the car in an abandoned condition near Reliance Fresh Shop. Thereafter, he lodged the report. On the basis of the report, crime No.98 of 2010 was registered at Dindoshi Police Station against unknown persons for offence punishable under sections 170, 347, 363, 395 of Indian Penal Code and section 3 r/w section 25 of Indian Arms Act. Registration number of the car was stated in the F.I.R.
vi) On 14/04/2010, accused Nos.1 and 2 were arrested by Subhash Sarang on the basis of secret information. At the instance of the accused No.1 Pravin, a recovery panchanama was recorded under section 27 of the Indian Evidence Act. Accused No.1 Pravin had directed the police to Nalasopara, room No.104 of Chandresh Co. Op. Housing Society in D wing. Accused No.1 had opened the flat with the key which was in his possession. He then opened the cupboard. There were boxes in the locker and the diamonds were found in various sachets in the boxes. KGK diamonds was written on the wrappers. A Panchanama was drawn in respect of the recovery of the said diamonds. Panchanama is at Exhibit 47/A.
(vii) Diamonds were also recovered at the instance of accused No.2. Panchanama is at Exhibit 52/A.
(viii) On 14/04/2010, a secret information was received by A.P.I. Kandalgaonkar that the culprits would be coming at about 5.30 p.m. with diamonds and Charas. A trap was laid near Oberoi Mall, Malad and accused Nos.3, 4 and 5 were apprehended. In their personal search, 1.600 kg Charas was found. The formalities as contemplated under the provisions of N.D.P.S. Act were taken.
(ix) Accused No.4 was possessing 1 Kg. Charas and 2 envelopes containing diamonds having KGK diamonds and Kanju Pvt. Ltd. One of the envelope was inscribed with the words "Shubham Enterprises". The total number of diamonds were 529 in 16 sachets of first envelope and 3385 diamonds found in 39 sachet in second envelope.
(x) Accused No.5 Gagandeep was found in possession of 600 Gm. Charas and 2971 diamonds in 62 sachet and 2355 diamonds in 38 sachet. All the articles were seized and sealed under a separate Panchanama.
(xi) On 20/04/2010, accused Nos.6 and 7 were arrested. There was a recovery of diamond packets at their instance under section 27 of Indian Evidence Act. On 29/04/2010 a test identification parade was conducted at Arthur Road Jail through Nayab Tahsildar Shinde. Exhibit 64 is a memorandum of test identification parade.
(xii) After completion of investigation, charge-sheet was filed on 07/07/2010. Case was committed to the Court of Sessions and registered as Sessions Case No.499 of 2010. Prosecution has examined 15 witnesses to bring home the guilt of the accused. Accused No.1 has examined defence witness No.1 Deepak Dhamapurkar and defence witness No.2 Shailendra Pawar.
3. P.W. 1 Deepak Lalwani is the complainant. He has deposed before the Court in consonance with the F.I.R. He has deposed before the Court that a silver colour Maruti Zen had intercepted his car. Five culprits were occupying the Zen car. Three culprits alighted from the said car. The words "Bharat Sarkar" were inscribed on rear side of the car. One of the culprit had informed him that it is an Income-Tax raid and that he should call his boss Nitin Dhadda. F.I.R. Is marked at Exhibit 34. Complainant P.W. 1 had narration and details of the diamonds and the same is marked Exhibit 35. He has deposed before the Court that on 21/04/2010, he was called at Dahisar Police Crime Branch. He was shown diamonds which were unsealed. He identified the said diamonds to be one which were taken away by the culprits. They were marked as Article No.1 collectively. There were 35 packets marked as Article 1 collectively.
4. On 29/04/2010 P.W. 1 was summoned at Arthur Road Jail for identifying the accused in the test identification parade. He reached Arthur Road Jail at about 10.15 a.m. P. I. had introduced him to Shinde, Tahsildar and two panchas who had taken P.W. 1 inside the jail premises. He was taken inside the jail premises by one of the Panch. 5 groups of 7 people each were shown to him. He identified 3 culprits by touching their body. He has given the names of the culprits. It is elicited in the cross-examination that at Malad office, they received the diamonds through courier from Diamond Trade Corporation. Diamond Trade Corporation has appointed agents like one KGK to whom diamonds were exported. They received it at Borivali office. There are about 200 employees in his company. Complainant has clarified that company does not use courier service for transporting articles from Bombay and instead they depute some members of their staff. The staff is deputed at the discretion of the superiors. It is further elicited in the cross-examination that on the day of incident when he reached Malad Office, no courier packet was received at Malad office. He had telephonically called upon courier company. They had come within 5 minutes and upon receipt of the packets, he had immediately proceeded to Borivali.
5. It is pertinent to note that he has admitted in the cross-examination that he had not given the description of the packet and diamonds before the police at the time of filing of report under section 154 of Code of Criminal Procedure, 1973. He had also not mentioned the number of sachets nor the names of the courier companies or the names of the sender of the diamonds. It is also admitted that he had narrated the incident to the police officer in Samata Nagar Police Station but the police officer had directed him to go to Dindoshi Police Station. State of P.W. 1 was not recorded by Samta Nagar Police Station. At the time of recording of evidence, he could not recollect as to whether his master had come to Samta Nagar Police Station. Police officers from Samta Nagar had not asked him to visit the spot of incident. Police personnel from Samta Nagar Police had accompanied him. They had been to the spot where the car was abandoned. He had learnt that the said police officers were from Dindoshi Police Station. His superior officers were present with the police at the spot where the car was found. From the place where the car was abandoned by the culprits, P.W. 1 had been accompanied by officers Dindoshi Police Station and his seniors followed him in a private vehicle. While in transit, no enquiry was made with him by the police. It is admitted that at the time of lodging of F.I.R. He had not seen the car in the police station. According to him, vehicle was brought in Dindoshi Police Station in the evening. Police persons had not taken photographs of finger prints on the car in his presence. His two statements were recorded by the police. According to the witness, at the time of recording of evidence, he could not recollect for how long he was in the office of crime branch. It is specifically admitted that officer did not seize the articles with other articles. He admits to have identified two persons as accused but did not recollect as to whether he had given the details of the role attributed to them at the time of commission of offence.
6. P.W. 2 Manohar Hatate was working as office boy in KGK Diamonds since 12 years. He has deposed before the Court that on 20th March, 2010 he went to Malad office of the Company from Borivali alongwith Deepak Lalwani (Complainant) and driver Ajay. Deepak had called upon the courier company and asked them to come to their office. Within 5 minutes the courier boy came to the office at Malad. Courier boys delivered the packets containing diamond. The packets were divided in two bags of 20 and 15 each. P.W. 2 was carrying the bags in which there were 15 packets. They left the Malad Office at about 10.45 a.m. in the said car. When they were passing through Datt Mandir road, a Maruti Zen car intercepted Innova. 3 persons alighted from Maruti Zen Car and stopped their car. The car had red colour dome light and the words "Bharat Sarkar" was inscribed on rear side of the car. Upon interception, the occupants of Maruti Zen Car informed P.W. 2 and P.W. 1 that it was a income tax raid and that they should call their son. In the meanwhile, two persons snatched bag from Deepak and took him in their car and fled away. P.W. 2 then called upon Dhevenbhai Lalwani and passed on the information. The said persons had also snatched the keys of their Innova car and had fled away. P.W. 2 and others reached the police station. P.W. 3 had arrived on the scene of offence in another car. They all went to Samata Nagar Police Station and then to Dindoshi Police Station. After about 8 to 10 days he was called at the office of Dahisar Crime Branch. He was identified 35 parcels.
7. P.W. 2 has further deposed that on 29th April, 2010 he had been to Arthur Road Jail for identification parade. He has given names of all the accused persons. In the cross-examination, he has admitted that the incident had taken place in the intervening night of 28th and 29th March, 2010. On the previous night Deepak had informed him that he would have to go to Malad in the morning. P.W. 2 had been to Arthur Road Jail for identifying witness. He has deposed before the Court that it was an open ground in the jail. He has further deposed that he was at the spot of identification parade for 5 minutes. That the Tahasildar had not enquired with him and had only asked P.W. 2 to identify the offender. He has expressed his inability to give the description of the persons who were subjected to identification. He could not even give description of the panch. That Tahasildar had no talk with the panch. He was not aware as to whether Deepak was taken to the same site but Deepak had left the premises after the parade. He could not recollect as to whether room for identification parade had windows and whether they were open. He had denied the suggestion that the photographs of the accused were shown to him prior to the parade. It is admitted in the cross-examination that the police had not recorded statement of P.W. 2 on the date of incident. It is further admitted that the diamonds which were shown to him were not mixed with other diamonds. It is further admitted that P.W. 2 had not given the particulars of the diamonds to the police.
8. P.W. 3 Bhimjibhai Waghabhai Kidecha has acted as a panch for recovery of diamonds at the instance of the accused No.1 under Section 27 of the Indian Evidence Act. P.W. 3 has deposed before the Court that the accused had disclosed the address of the room where he had kept the said diamonds. Alongwith personnels of investigating agency, panchas and the accused, P.W. 3 had been to Sun Rest Building at Nalasopara. P.W.3 has deposed that room No.104 was locked. The accused demanded the key from P.I. Sawant. P.I. Sawant has given a bunch of keys. The accused selected one of them and opened the grill door of room No.104. There was a cupboard inside the bed room. The bunch contained the key with which he opened the cupboard and removed 3 paper boxes. One of the box was already opened and remaining two were packed. P.I. Sawant opened the boxes and found 304 sachets in one box. The other box was also containing similar sachets. However, the witness could not disclose the number of sachets. It is further stated that he has seen each diamond separately before seizure.
9. It is elicited in the cross-examination that the Articles 4 and 5 collectively were envelops which were seized in the said panchanama. However, none of the envelops were bearing the signature of panch and date. It is admitted that he could not say how many diamonds were contained in each packets. It is also admitted that he was not asked to sign on any of the envelops by the police. He has expressed his inability to distinguish the diamonds separately, as no identification marks were made.
10. He has further admitted that he was doing diamond business from 8 a.m. to 8 p.m. On 14/4/2010 he was proceeding to his work shop. He was called by police to act as a panch for seizure of the diamonds at the instance of the accused No.1. He had initially refused since he had to proceed to work shop. However, since P.I. Sawant insisted, he agreed to oblige the police. It is further admitted that there were several people in the said building. There were four rooms on the said floor. However, the police had not recorded statement of any witness.
11. P.W. 4 Krishnakumar Nandsing Shekhavat has acted as a panch for the seizure of diamonds at the instance of accused Rahul Jaiswal. He has proved the contents of the panchanama at Exh. 52. He has deposed before the Court that alongwith personnels of the investigating agency, the accused and the panch proceeded to Parshwanath Society. The accused had led them to third floor in Room No.312. There were 2 ladies in the room. The accused had disclosed that one of them was his mother and another was his sister. There was steel cupboard in the hall. The accused had thrust his hand and pulled on plastic carry bag and handed the same to the police officer. Four envelops contain 136 small sachets. The panchanama is marked at Exh. 52A. In the cross-examination, it is specifically admitted that he is working in Diamond polishing factory and it was his duty to distribute the work for processing the diamond to the employees and collect the same. He has also admitted in the cross-examination that on 14th April, 2010 the police had requested him to act as a panch. He had initially refused to act as panch but subsequently obliged the police. He was called by the police to act as panch while he was waiting on the bus stop for half hour. He was resident of Mira Road. Police did not offer their search to the relatives of the accused. The police had not recorded statement of the mother and sister of the accused. Article 6 collectively did not bear signature of the panch i.e. P.W.4, police and others. No date was mentioned on the article-6 collectively. Exh. 52 also did not bear any such date.
12. P.W.5 Ghansham Govindbhai Pandav had also acted as panch. According to him, on 20/4/2010 he was standing on the bus stop when he was called by a person in civil dress to act as a panch. He acted as a panch for the seizure of diamond at the instance of Govind Mankar. According to him, the accused had given a memorandum that diamonds are kept with one Sanjay. Memorandum panchanama was recorded which is at Exh. 57. The accused had then led them to Opera House and then he had taken them to Samrat Hotel. He had noticed one person named as Sanjay. The said person had produced two small sachets of white colour from his pocket. The police seized the same and found diamonds in it. They had counted diamonds but the panch was not informed about the number of diamonds. The panchanama is at Exh. 57/A. It is elicited in the cross-examination that P.W. 5 was doing marketing in April 2010 and had subsequently stopped the said business. He did not know the meaning of panchanama. It is further elicited in the cross-examination that when P.W. 5 went to the police station, face of the accused was covered with veil and then the same was removed. He had never been to Opera House area prior to the date of panchanama. The witness had admitted that when they went to hotel Samrat, the accused has spoken to one person. Said person was diamond broker. The police demanded diamond sachet and said person handed over the same to the police.
13. P.W. 6 Mangala Yadav is another panch. She is resident of Malad. According to her, on 14/4/2010 she was standing on the bus stop at Dahisar and was requested by P.I. Ketale to act as panch. She was requested to act as panch for seizure of diamonds and charas. At about 5.15 p.m. they went to Malad (East), near Oberai Moll. The raiding party was divided into two groups. In both the groups there was one panch. They went to Padmavati Building where 3 suspects were standing. The police apprehended the said persons. The police had enquired their names. Upon enquiry, 3 suspects had disclosed their names as Harpreet, Amardeep and Gagandeep. Harpreet was in possession of plastic bag, which he opened and charas was found in it. The police had weighed the contraband but the witness was unable to give exact weight. Similarly, Amar deep was also holding carrybag which contained contraband charas. In his personal search, police found two packets containing diamonds. Diamonds were kept in 56 sachets. The police counted the diamonds but she could tell the number of diamonds. K.G.K. Diamonds was written in the said packets. Gagandeep was also carrying carry bag. In his personal search, police found charas and two packets containing diamonds. The police counted diamonds. Panchanama is at Exh. 61. It is elicited in the cross-examination that no government valuer was present on the spot. P.W. 6 did not know the name of the co-panch. Many other people were standing on the bus stop. However, she was chosen by the police to act as a panch.
14. P.W.7 Naresh Vora, a resident of Goregaon had been to Dahisar. On 15/4/2010 the police in civil dress asked him to act as a panch wherein the accused Harpreet would show the place where the offence was committed. The accused had shown way towards Vasai (East) near Gati Courier. The accused had gone inside the office and produced one bag containing paper envelops in which diamonds were sealed. The police had recovered four bullets from the gun and kept it separately and sealed it separately. The diamonds were kept in transparent plastic bags. Panchanama is at Exh. 63A. In the cross-examination, the witness has stated that the police had informed them that the person who was in their custody wanted to make a statement of discovery of gun and therefore, requested them to act as panch. It is further admitted that the said location was not within the limits of Dahisar Police Station. The witness has admitted that he had not observed any marks on the cartridges. He claimed that a cello tape was affixed on the body of the gun.
15. P.W. 8 Sunil Nandlal Sharma is a panch whom the police had requested to act as a panch on 23rd April, 2010. He had been to Dahisar with a client and the police had requested him to act as a panch. According to him, the accused Ramesh Shinde had voluntarily disclosed that he would show the place where orange dome light was kept. That the accused led the investigating agency to Dadar, Saitan Chowky. He walked into Triveni Sangam Building, near dilapidated hut wherein one orange lamp was kept inside the meter box. The witness could not recollect the names of the co-panch.
16. P.W. 9 Sandip Babaji Vishwasrao, API has deposed before the Court that on 8th April, 2010 investigation papers in C.R. No.98/2010 registered at Dindoshi Police Station were handed over to him. On 14/4/2010 he arrested the accused Nos.1 and 2 and their arrest panchanama is at Exh. 67. On 14/4/2010 accused Harpreet Singh, Amarpreet Singh and Gagandeep Singh were arrested. On 29/4/2010 he had arranged test identification parade at Arthur Road jail through Tahsildar Shinde. He has sent revolver with cartridges to ballistic expert and the opinion is at Exh. 70. He then filed charge-sheet against the accused on 7/7/2010. He has denied the suggestion that in the eventuality discovery has to be effected in the local limits of different police stations, it would be necessary to take assistance from the concerned police station. According to him, he had not called local panch witness because they were taken while departure from the office. It is admitted that he had not obtained signature of the accused on discovery panchanama and the copy was not given to the accused. That they used to keep the accused in the lock up room of Borivali Police Station. That whenever an accused is taken out of the lockup for any parade, it is to be reduced into writing in lock-up register. It is admitted by P.W. 9 that they had not submitted the extract of the said lock-up register. They had not recorded the statement of the police officer who was incharge of the lock-up room and also constable who had gone to secure custody from the lock-up room. At the time of seizure of diamonds, diamond expert was not called by him. It is further admitted that till 20th April 2010 he had not got the diamonds examined through expert. He had not obtained photographs of the seized articles. It is also admitted that at the time of arrest, he had taken finger prints and photos of the accused. It is further admitted that at the time of arrest, the personal search of the accused was not taken.
17. P.W. 9 has admitted that he had recorded the statement of Sunil Zaveri. However, the date of recording of the statement was erroneously mentioned and that he had realised this error only after filing of the charge-sheet. However, no application was filed for rectification of the error. Sunil Zaveri was a valuer.
18. P.W.10 Vijay Kandalgaonkar was assisting API Vishwasrao in the investigation in C.R. No.46 of 2010. He has deposed before the Court that on 14/10/2010 there was a secret information that some persons were to come at Oberoi Moll at 5.30 p.m. with diamonds and charas. They went to the spot. They saw the suspects moving suspiciously. Hence, they were nabbed. Harpreet Singh, Amarpreet Singh and Gaganpreet Singh were apprehended. He was offered his personnels search and taken search of the three accused. Harpreet Singh was found with charas weighing 1.600 kg. In the personal search of Amarpreet Singh 1 kg. Charas and two envelops containing diamonds were seized. Gaganpreet Singh was found in the possession of 600 gm. charas and two envelops having words Shubham Enterprises. He counted the diamonds from 62 sachets and 38 sachets. He obtained signatures of panchas.
19. Separate charge-sheet was filed against the accused in respect of the offences punishable under provisions of NDPS Act. In the cross-examination, P.W. 10 categorically admitted that the details in respect of seizure of articles was not mentioned in the panchanama he does not agree that the detailed description needs to be mentioned in the panchanama. It is also admitted that there was no lock to the meter box in which the dome light was found.
20. P.W. 11 Prakash Pawar, PSI has deposed before the Court that he had carried out investigation in accordance with law. He could recollect the names of the panchas on the day when his substantive evidence was being recorded.
21. P.W. 12 Sunil Zaveri runs jwellery shop in Malad in the name and style of Harjimandas Jwellars. On 20/6/2010 he was called by the Crime Branch Police in Dahisar East office for inspection of diamonds. On 21/4/2010 he went to the office of DCB CID. According to him, there were 35 packets. The police seals were noticed on all packets. Signatures of the panch witnesses were seen the paper seals of those closed packets. Packets were opened one by one and were given to him for the purpose of inspection and valuation of diamonds. The report is at Exh. 106. According to him, earlier seals were relodged in the packets and packets were resealed by the police and pancha witnesses. He has further stated that he had brought the property which was examined by him. He has identified the property which was examined by him for giving valuation report. In the cross-examination it is elicited that the record shows that his statement was recorded on 20th April, 2010 and not on 21st April, 2010. Envelopes were not signed by anybody in his presence. He had worked as diamond expert in 2-3 other cases.
22. P.W. 13 Nitin Pandya who has acted as panch for seizure of diamonds and charas at the instance of accused Harpreet, Amarpreet and Gaganpreet. It is admitted that he had no occasion to see the accused who was booked for the seizure of articles after recording of his statement but he had attended the court on 2 to 3 occasions prior to recording of his substantive evidence and that he had seen the accused on every occasion. It is elicited in the cross-examination that P.W. 13 was aware that KGK Diamond Company is working in Gujrat. He had denied the suggestion that he was working with KGK Diamond Company in Surat.
23. P.W. 14 Subhash Sawant was attached to DCB CID Unit12 at Dahisar. He has deposed before the Court that he had conducted the investigation in accordance with law. He has deposed before the Court that the accused was in possession of the keys of the premises of Room No.104.
24. P.W. 15 Sadashiv Shinde is Naib Tahsildar who had conducted test identification parade. He has admitted before the Court that he had not enquired anything with panch witnesses except their names and addresses. He has also admitted that he had not gone through the provisions of criminal manual in respect of conducting test identification parade and whenever, witnesses appeared at the place of parade, he would have asked them to identify the suspects from the row and except that he had no other conversation with the panchas or with the identifying witnesses. He had not enquired with the identifying witness as to whether they had been to the office of DCB or the police station prior to the parade. He had neither asked the suspects as to whether they have any grievance in respect of parade since he did not find it necessary.
25. The accused has examined two defence witnesses. D.W.1 is Deepak Dhamapurkar. He was acquainted with accused Pravin Parab. On 14/4/2010 police had not met him and Parab had not come to his home and prior to that date he had never come to his house. He has denied the suggestion that he had given flat to Pravin Parab for 2 months in the year 2008. He has also denied the suggestion that the bunch of keys of his flat was discovered from Pravin Parab.
26. D.W. 2 Shailendra Shankar Pawar was also acquainted with Pravin Parab. On 14/4/2010 on the occasion of birth anniversary of Dr. Babasaheb Ambedkar, a function was arranged in the colony and Pravin Parab was present.
27. P.W. 1 who happens to be the complainant has specifically deposed before the Court that on 21/4/2010 he was called at Dahisar Crime Branch and was shown diamonds unsealed. He identified all of them. It was not stated by him in his examination-in-chief that upon receipt of 35 parcels, he had opened and seen the diamonds. They were in packets. Some diamonds were processed and some diamonds were just finished products. He had only collected the packets. It is not his case that he had opened the envelops and seen the diamonds and therefore, there was no question of identification of articles at the police station. He has identified the five packets. In the cross-examination, he has admitted that some diamonds are defective even after polishing. It is also admitted that they used to bring packed courier envelopes from Malad to Boriwali and open it at Boriwali. It is in this circumstance that the identification of diamonds by the complainant in Dahisar Police Station would loose its significance.
Moreover, there is categorical admission by P.W. 1 that while lodging FIR he had not given description of the packets and diamonds before the police nor he had given number of sachets. He had also not stated before the police the names of the courier company or the names of the sender of the diamonds. It is also admitted that he had initially approached to Samata Nagar Police Station. He was directed to go to Dindoshi Police Station. But instead of going to Dindoshi Police Station he had been to the spot where he had seen the abandoned car. The police were already present at the sport. It is admitted by P.W. 1 that he had not mentioned colour of the wrappers of parcels nor any identification mark on those parcels but had simply stated that there were 35 parcels and 12 letters. It is also admitted that at the time of identification of the articles, the said articles were not mixed with any other articles. It is further admitted that he had identified two persons but did not recollect as to whether he had mentioned specific roll attributed to them.
28. It is pertinent to note that P.W. 15 Sadashiv Shinde was Nayab Tahasildar who has conducted test identification parade in Arthur Road Jail premises. In the examination-in-chief itself, he had deposed that at the time of conducting the test identification parade he had not gone through the provisions of Criminal Manual in respect of identification parade. It is probably in this background that there were lacunas in conducting of the test identification parade and the same would loose significance. The Naib Tahasildar had not verified from the panchas or the identifying witnesses as to whether they had seen the accused prior to test identification parade. This would assume importance since the investigating officer P.W. 9 has specifically stated that he had taken finger prints and photos of the accused at the time of arrest. The possibility that the said photos were shown to the identifying witness cannot be ruled out. When the possibility of the witness seeing the accused before the parade is not ruled out, the accused is to be given benefit of doubt. It is the duty cast upon the prosecution to establish beyond any doubt that the witnesses who identify the accused at the test identification parade had seen him at the time of occurrence. That they did not know him before and did not see him at any time after the appearance and prior to the identification parade. In the present case, Naib Tahasildar had not verified this aspect from the pancha witnesses or the identifying witnesses. There is nothing on record to even remotely indicate that the faces of the accused were covered when they were brought from Borivali lockup room to Dahisar Police Station where the test identification parade was conducted.
29. That P.W. 12 has admitted before the Court that he had brought the property which was examined by him. The said property was produced by Gheverchand Jain. He has identified the property before the Court. This identification would loose significance in as much as it would be necessary for the investigating agency to keep the seized articles in a sealed condition till they are identified before the Court. On that date there was no verification of the genuineness of the articles seized at the time of investigation.
30. Reliance can be placed in the case of Bharat v/s. State of Madhya Pradesh AIR 2003 SC 1433, where the ornaments were recovered from the house of the accused were not of any particular design and where documents pursuant to which recovery was supposed to be made was not signed from the witness and thumb impression of accused was taken, no reliance can be placed on the testimony of police officer in regard to recovery of ornaments.
31. In the present case, the complainant had not given any specific description of the diamonds or weight of the diamonds and despite the same, diamonds were shown to be recovered from the accused and the complainant had identified the same at random. It is incumbent upon the prosecution to mix the stolen seized articles alongwith the similar articles and to see that the complainant would identify the same.
32. The learned Counsel for the appellants rightly submits that law of prudence would require that similar articles are required to be mixed with the articles to be identified. It is apparent on the face of the record that there are innumerable, but inherent discrepancies in the substantive evidence of the witnesses. The inherent omissions and contradictions go to the root of the matter and hence, the accused would be entitled to the benefit of doubt.
33. This Court is of the opinion that two crucial aspects such as test identification parade and recovery at the instance of the accused go to the root of the matter and that the prosecution has miserably failed to bring home the guilt of the accused. However, it is made clear that the present Judgment in this case, shall not be read in evidence or relied upon in any other proceedings, including the trial of the accused under the provisions of the N.D.P.S. Act. The said case be considered on its own merits. In any case, evidence to be adduced by the prosecution under the provisions of the N.D.P.S. Act would be at variance from the evidence in the present case. In the case under N.D.P.S. Act, there is no question of test identification parade or identification of the articles since the contraband was found in the possession of the accused at time when they were apprehended in the present case and therefore, the trial under N.D.P.S. Act be conducted in accordance with law without being influenced by the observations made in this Judgment.
34. Hence, this Court is of the view that the appeal deserves to be allowed.
ORDER
(i) The Appeals are allowed.
(ii) The Judgment and order dated 6.3.2014 passed by the Addl. Sessions Judge, Greater Bombay in Sessions Case No.499 of 2010 is quashed and set aside.
(iii) The appellants-accused No.3 Harpreet Sardul Singh, accused No.4 - Amardeep Tarshem Singh and accused No.5 -Gagandeep Krishlal Chauhan are acquitted of the charge levelled against them for the offence punishable under Section 395 of Indian Penal Code. Similarly, accused No.1 Pravin Sadashiv Parab, accused No.2 Rahul Kantaprasad Jaiswal, accused No.6 Ramesh Yeshwant Shinde and accused No.7 - Govind Bhagoji Mankar are also acquitted of the charge levelled against them for the offence punishable under Section 412 read with Section 34 of I.P.C.
(iv) The appellants be released forthwith, if not required in any other offence.
(v) Bail bonds stand cancelled.
(vi) Fine amount, if paid, be refunded to them.
(vii) All the Appeals stand disposed of.
35. As the appeals are disposed of, Criminal Application No.1213 of 2015 does not survive and stands disposed of accordingly.