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PETITIONER: KISHORE AMARSINGH MAHESHKAR, RAVINDRA @ RAVI BANSI GOHAR

       Vs.

RESPONDENT: THE STATE OF MAHARASHTRA & ORS.

DATE OF JUDGMENT:       04/08/1998

BENCH: M.K. MUKHERJEE, D.P. WADHWA

ACT:

HEADNOTE:

JUDGMENT:                             WITH               CRIMINAL APPEAL NO. 432 OF 1998                       J U D G M E N T      M.K. MUKHERJEE. J.      Ravindra @  Ravi  Bansi  Gohar  and  Keshya  @  Kishore Amarsingh Maheshkar,  the appellants  in these  two appeals, along with  tow others  were arraigned  before an Additional Sessions Judge  of  Greater  Bombay  to  answer  charges  of rioting, two  murders and  other cognate offences. The trial ended in  conviction of  each of  the appellants  for  those offences and  sentence of  death, imprisonment for different terms, including  life, and  fine. Against their convictions and sentences  they preferred  an  appeal  before  the  High Court, which  was heard  along with  the case arising out of the statutory  reference  made  by  the  trial  Judge  under Section 366  cr. P.C. In disposing of the reference case and the appeal by a common judgment, the High Court affirmed the convictions and  sentences of  the appellants  and set aside those of the other two. Hence this appeal. 2.   Shorn of details, the prosecution case is as under: (a)  On March  5, 1987  at or  about 3.30  a.m. a  number of persons were  found approaching  Satrasta police  lock up of Agripada Police  Station through  an opening in the compound wall and  hurling country-made  bombs. One  of the bombs hit and injured  Manaji Mani,  who was at the police post (guard chowki) near  the lock  up. Thereafter four of the, who were carrying fire-arms,  came to  the front entrance of the lock up where  Uttam Vishnu  Gharte, (PW2), a police Naik, was on duty. They asked him to had over the keys of the lock up but on his refusal to do so inspite of threats meted out to him, they retreated a few steps and hurled bombs towards the iron wire mesh  which was  in front  of cell  No. 1 on the ground floor of the lock up. Through that wire mesh they then fired in the  direction of cell No. 1. Thereafter they entered the gate, went inside through the rear lobby of the lock up, and one of  them broke  open the  lock of  the gate of the front lobby. All  of them  then entered through that gate and went to cell  No.1 wherein  one Babu  Gopal Reshim, a suspect was detained.  After   firing  at   him-which  resulted  in  his instantaneous death-  they came  back shouting some slogans.

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At the  time of  retreat they  also threw  bombs in the area under the  staircase which is treated as resting room of the guards.  In  the  process  a  number  of  police  constables sustained injuries. All the miscreants then ran away towards Sane Guruj Path. (b)  On getting  information of the incident over phone Shri Zende (PW17),  Officer-in-charge of  Agripada police Station rushed to  the lock up. After making a preliminary survey of the scene  of crime  he recorded  the  statement  of  P.W.2, wherein he,  besides datailing  the incident, stated that he could identify  Vijaya and  Keshya as two of the miscreants. On that  report (Ext.24),  P.W.17 registered a case and took up investigation.  He prepared  a panchnama  of the articles found there  which included  five live bombs and bullets. He also prepared  a sketch  map of the scene of offence. In the meantime he  had arranged  to send  the injured  constables, including P.W.2 and Ahire, to the hospital for treatment and the  dead   body  of  Babu  Gopal  Reshim  for  post  mortem examination, after  holding inquest.  While in  the hospital Ahire succumbed to his injuries. (c)  In course of investigation three of the accused persons including the  two appellants  were arrested on June 29,1987 and they  were placed  in  two  Test  Identifications  (T.I) parades which  were held on July 8, 1987 by Shri L.J. Parikh (P.W.18), Special  Executive Magistrate.  In  those  parades P.W.2 identified  both the  appellants and  accused Rajendra (since Acquitted)  and constable  Ashok Dinkar Chakranarayan (P.W.12) identified  appellant  Ravi.  Accused  Vinod  Bhika Maria (since acquitted), who was arrested after charge sheet was filed  against the former three accused, was also placed in a  T.I parade  in which  constable Chandrakant  S. Sawant (P.W.4) identified  him as one of the miscreants. Thereafter a supplementary chargesheet was filed against him. 3.   The appellants pleaded not guilty to the charges framed against them and contended that they were falsely implicated at the  instance of  the police. Besides, they asserted that earlier they  had  been  arrested  by  the  Agripada  police station and  while they  were in  the lock  up in  question, their photographs  were taken  which  were  later  shown  to P.Ws.2 and  12 to  enable  them  (the  three  witnesses)  to implicate them in the incident in question. 4.   In order  to establish  case the  prosecution  examined twenty eight  witnesses and exhibited a number of documents. No witness  was, however,  examined P.W.2, P.W.4 and P.W.12, who, among  others, were  at  the  police  lock  up  at  the material time,  gave an  ocular  version  of  the  incident. Besides, Shakil  Mohd. Ibrahim Ansari (P.W.21), who was also detained in the police lock up as a suspect, was examined by the prosecution to recount the incident. Though he supported the prosecution case as to manner in which the incident took place, he  did not  name or identify and of the four accused persons,  for  which  he  was  declared  hostile  and  cross examined with  reference to  his  statement  recorded  under Section 161  Cr. P.C.  On perusal of the record we find that the evidence  of the  above  four  witnesses  regarding  the occurrence  stands  corroborated  by  the  evidence  of  the doctors who  held post  mortem examinations  upon  the  dead bodies of  Babu Gopal  Reshim and  Ahire  and  examined  the injured constables.  Besides, the  reports of  the  forensic Science Laboratory  also go  a long way to corroborate their version. In such circumstances, we find no reason to disturb the concurrent  findings of the learned Courts below in this regard.  Indeed,  the  learned  counsel  appearing  for  the appellants did  not seriously  challenge this  part  of  the prosecution case.

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5.   The next  and the  most crucial question that now falls for  our   determination  if  whether  the  prosecution  has succeeded in  conclusively proving  that the  two appellants were among  the miscreants.  To prove  this part of its case the prosecution relied solely upon the evidence of P.W.2 and P.W.12. P.W.2  testified that  out of  the four  persons who came to  the lock  up site he could identify Vijaya (he died before the trial commenced) and Keshya and he pointed out to appellant Kishore  as keshya.  According to him he knew both of them  for about 7/8 months prior to the incident. He also identified appellant Ravi and accused Raju (since acquitted) as two of the other miscreants, but admitted that he did not know them  from before. He further stated that he identified the above  three witnesses  in  a  T.I.  parade.  The  other witness, namely  P.W.12 identified  appellant Ravi as one of the miscreants  and while  identifying him  deposed that  he knew him  and his name was Ravi Basal. He added that he came to know  his name  at the  time  of  the  T.I.  Parade.  The evidence of the above two witnesses regarding identification in T.I.  parade was  corroborated by that of P.W.18 who held the parade on July 8,1987. 6.   It is  not  in  dispute-indeed,  the  prosecution  case itself, as  testified by  two of  the Investigating Officers is,- that the photographs of the four accused (including the two appellants) were shown to the above witnesses before the T.I. parade  was held.  Notwithstanding this  glaring  fact, which in  our view,  made the  identification in T.I. parade and, for that matter, identification in Court worthless, the trial Court accepted the evidence of P.W.2 & P.W.12 and that of P.W.4  who identified  another accused.  The High  Court, however, relying upon the judgment of this Court in Laxmipat Choraria &  Others Versus  State of Maharashtra, A.I.R. 1968 SC 938,  held, that  the evidence of the witnesses so far as it related  to identification  of the  accused who  were not known to  them from  before was  unworthy   of  credit,  as, admittedly, their photographs were shown to them before T.I. parade. Accordingly,  the High Court acquitted the other two accused and  also left  out of consideration the evidence of P.W.2 regarding  identification of  appellant Ravi. The High Court, however,  accepted the  evidence of  P.W.2  &  P.W.12 regarding identification  of  appellants  Kishore  and  Ravi respectively, as  those witnesses claimed to have known them from before  and drew  the following  conclusion  to  uphold their convictions and sentences:      "On the  basis of  the evidence  on      record  we   have   come   to   the      conclusion   that    accused   No.3      (Kishore) was  known to  the  P.W.2      and accused  No.1 (Ravi)  was known      to P.W.12.  In these  circumstances      if  the  police  officers  just  to      ensure earlier  identity of accused      showed the  photographs of  accused      who  were   already  known  to  the      witnesses and further the said fact      was    confirmed     by     holding      identification  parade  soon  after      and circumstances of the case we do      not  see   that  it   creates   any      infirmity  in   the  case   of  the      prosecution   so    far   as    the      identification of  accused No.1  by      P.W.12 and  accused No.  3 by P.W.2      is concerned. We must emphasize the      fact that the material on record in

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    our opinion clearly shows that high      degree  of   probability  of  P.W.2      knowing the accused No.3 and P.W.12      knowing  the   accused  No.1,   the      witness   being   police   officers      attached  to  the  Agripade  Police      Station  and   the  accused   being      inmates of  the lock  up in  recent      past  of   the  occurrence  of  the      incident in question." 7.   We have  heard the  learned counsel  for the parties at length and  with their  assistance gone through the evidence relevant to  the question  which we  have to  now answer. On going through  the record  we have  found certain disturbing features in  the prosecution  case which  remain unexplained and go  a long  way to discredit it. In his statement, which was recorded  as the  F.I.R.  (EXT.  24)P.W.2  stated,  that ’Vijaya’  and   ’Keshya’  were  among  the  miscreants.  He, however, we  find that  in the  formal F.I.R prepared on the basis of  the statement  of P.W.2  the following  names have been shown  in the  column meant  for recording the names of the accused:      "1. Vijay alias Vijay Utkar       2. keshya alias Kishore Marrya,          Laxa and other 9/10 persons".      When cross  examined on this point, P.W.2 admitted that at the  time he  lodged the  F.I.R. he did not know that the surname of  Vijay was  ’Utkar’ and he came to know about his surname from  the papers.  So far  as keshya is concerned he stated that  he knew  that he was residing in Kanjarwada and was gunda of the locality and that he had told the police at the time  of lodging  of the  F.I.R. about  those facts. He, however, admitted  that in his statement he did not give the detailed particulars  of whom  he knew  and  saw  among  the miscreants and  that there may be a number of persons by the name keshya. In view of the above admissions of P.W.2 we are at loss  to understand  how the surnames of Vijay and Keshya and the  name of  laxa could find place in the formal F.I.R. recorded on  the statement  of P.W.2.  Equally surprising is that though P.W.2 named keshya, his name was also given as @ Kishore Marrya.  While on this point it is also pertinent to mention that  the full  name of  the appellant  Kishore who, according to P.W.2, was named as keshya in his statement, is admittedly ’Kishore  Kaheshkar’.  From  all  these  peculiar facts and  circumstances, which remain unexplained, the only conclusion that  can be  drawn is that the F.I.R. was not at all prepared  at the  time alleged  by the prosecution (4.15 a.m.). Indeed,  in the  instant case  the F.I.R. was not the basis of  the investigation-as  it should  be -  but was the outcome of investigation. 8.   The next unusual feature of the case, is the showing of the photographs  of the accused to the witnesses who were to identify them  in T.I.  parade. As noticed earlier, the High Court did  not lay  any importance  on this  aspect  of  the matter so  far as  the two  appellants are  concerned on the ground that  those photographs  were shown to P.Ws.2 and 12, who were  already  known  to  them  to  test  whether  their identification  was   correct  or  not  and  that  fact  was confirmed by holding identification parade immediately after their arrest.  This finding  of the High Court, in our view, is wholly  unsustainable. The  identification parades belong to the  investigation stage  and they  serve to  provide the investigating authority  with materials to assure themselves if the  investigation is proceeding on right lines. In other words,  through   these  identification   parades  that  the

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investigating agency  is required  to ascertain  whether the persons whom they suspect to have committed the offence were the real culprits - and not by showing the suspects or their photographs.  Such   being  the  purpose  of  identification parades the investigating agency, by showing the photographs of the  suspects, whom  they intended  to place  in the T.I. parade, made it farcical. If really the investigating agency was satisfied  that P.Ws2  & 12 did know the appellants from before and  they were  in fact  amongst the  miscreants, the question of holding T.I. parade in respect of them for their identification could not have arisen.      Another disturbing feature of the case is that the T.I. parade was  held inside  the lock up of C.I.D. department of the Bombay  police which  was investigating into the case at the material  time. In Hasib vs. State of Bihar (A.I.R. 1972 SC  283)  this  Court  observed  that  a  vital  factor  for determining the  value of  an identification  parade is  the effectiveness of  the precautions taken by those responsible for holding them against the identifying witnesses having an opportunity of  seeing the  persons to be identified by them before they  are paraded with other persons and also against the   identifying    witnesses   being   provided   by   the investigating authority  with other unfair aid or assistance so as  to  facilitate  the  identification  of  the  accused concerned. The  above observations  aptly apply in the facts of the  instant case  for not  only the  photographs of  the appellants and  other accused  were shown  before  the  T.I. parades,  but   they  were  held  in  the  lock  up  of  the investigating agency  thereby giving  sufficient opportunity to the  identifying witnesses  of seeing  the persons  to be identified. Having  regard to  the fact  that the  above two identifying witnesses were police constables attached to the concerned police  station, it was all the more necessary for the investigating  agency to ensure that the T.I. parade was held in  a manner  and at a place (preferably in jail) so as to avoid any criticism about its legitimacy. 10.  Coming now to the cases of the individual appellants we first take  up that of Ravindra who, as earlier noticed, was identified by  P.W.12. According  to him  he knew  Ravi from before but  he came  to know  about his  name at the time of T.I. parade. He, however, in his testimony did not state how he knew him nor did he state in his statement recorded under Section 161  Cr. P.C. that amongst the miscreants he saw one whom he  knew  from  before  but  did  not  know  his  name. Unfortunately,  this   vital  omission  which  rendered  his evidence regarding  identification of appellant Ravi suspect in Court  was not at all considered by the High Court or the trial Court. 11.  As regards the other appellant the relevant evidence of P.W.2, who  identified him, in his cross examination is that keshya, whom  he named  in his  statement before the police, was residing in kanjarwada and was gunda of the locality. He further stated  that he  had told the police that keshya was resident of kanjarwada. If really P.W.2 knew about all those details, it  was, in  the fitness of things, expected of him to disclose  them in the statement he made before the police so as  to fix  up the  identity of keshya. That apart, P.W.2 did not  assert that keshya, whom he named in the F.I.R, was the appellant  Kishore before  us. On  the contrary, he said that there  may by  many persons by the name of Keshya. From these facts and circumstances the only reasonable conclusion we can legitimately draw is that to ascertain whether keshya named by  P.W.2 in  his statement  really  referred  to  the appellant Kishore  Kaheshkar, that the police showed him his (Kishore’s) photograph  and placed  him in  T.I. parade.  In

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drawing this  conclusion we  have drawn inspiration from the mystery surrounding the F.I.R. 12.  That the  High Court  felt it  difficult to sustain the convictions of  the appellants  in absence of any foundation laid by  P.Ws.2 and  12 to  indicate as  to how they came to know the  appellants would  be evident from the observations made by  the High  Court (quoted  earlier) that  there was a high degree  of probability of P.Ws. 2 and 12 of knowing the two  appellants   respectively  as  they  were  attached  to Agripada police  Station and  they (the appellants) were the inmates of  the lock  up for some time prior to the incident in question.  we are  constrained  to  say  that  the  above reasoning of  the High  Court is convoluted and strained. It was for  the above  two witnesses  to testify  that they had seen them while they were in the lock up earlier and that is how they  knew them  from before the incident. In absence of any such  assertion, the High Court was not at all justified in making the above observation on the basis of ’high decree of probability’.   To  sustain the conviction the High Court was required  to record  a positive  finding on the basis of reliable and acceptable evidence that the two witnesses knew the appellants  from before  and not  on the  basis of  high degree of probability. Rather, it appears to us, the defence of the  appellants that  while they  were  in  the  lock  up earlier their photographs were taken and thereafter shown to the witnesses  to implicate them in the case is probabilised by the  admission made by the investigating officers as also P.W.2, that they were shown their photographs. 13.  For the  foregoing discussion  we are unable to sustain the  impugned   judgment  on   the   basis   of   the   sole identification  of   P.W.s.  2   and  12.  The  appeals  are accordingly allowed and the convictions and the sentences of the appellants  are set  aside. The  appellants, who  are in jail, be released forthwith unless wanted in connection with any other case.