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PETITIONER: SHAIKH UMAR AHMED SHAIKH & ANR.

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT:       28/04/1998

BENCH: G.T. NANAVATI, V.N. KHARE

ACT:

HEADNOTE:

JUDGMENT:                      J U D G E M E N T V.N. KHARE, J.      This criminal  appeal under section 19 of the Terrorist and   Disruptive    Activities   (Prevention)    Act,   1987 (hereinafter referred  to as  TADA), at t he instance of two appellants herein,  viz., Shaikh Umar Ahmed Sahikh and Mohd, Naim Mohd.  Yasin Qureshir, is directed against the judgment and order  dated 14.10.97  passed by  the Designated  Court, Greater Bombay,  Maharashtra  in TADA Special Case No. 21 of 1994, whereby  the Designated  Court has  convicted the  two appellants under  section 3(2)(i)  of TADA read with section 149 IPC and sentenced them to undergo life imprisonment. The appellants have  also been  convicted and  sentenced to life imprisonment  for  the  offence  punishable  under  sections 302/149 IPC  and sentenced  to pay a fine of Rs. 500/- each, in  default   to  suffer  R.I.  for  six  months.  Both  the substantive sentences were directed to run concurrently.      Prosecution story  in brief  is, that  on 7.12.92,  the area where  J.J. Hospital  is situated  was in  the grip  of communal riots  as a result of which prohibitory orders were promulgated. In  Ward No.  46 of  the  said  hospital  where undertruial of  various criminal cases were usually kept for medical treatment,  a police  escort consisting  of one Head Constable and three constables was being provided there from the police  headquarters. Head  Constable Chandrakant  Pamji Khopkar (Buckle  No. 17481)  was in  charge  of  the  police constable S.P.  Shinde ( Buckle No. 27252), Police constable Rahul Hanumant Gaikwad (Buckle No. 414) and the third Police constable (Buckle  No. 27231)  were on  duty at  Ward No. 46 along with  Hear Constable  Khopkar. At around 7.30 P.M., on the said  day, when  he next  batch of  police escort  party arrived at  the ward, Head Constable Khopkar handed over the charge to the next batch, and look out the uniform shirt and were a  red coloured  shirt. So also Police constable Shinde and  Gaikwad   changed  their   uniforms.  Thereafter   Head Constable Khopkar  and the  other three constables left Ward No. 46  and climbed  down the  building of the J.J. Hospital through gate  No. 9  and reached  at J.J.  Corner where they took turn and proceeded towards byculla Railway Station. The third constable  (Buckle No.  27231) went away from the J.J.

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Hospital premises.  Head Constable Khopkar was walking ahead and from  he distance  of about  25 feet, constable Gaikward and constable  Shinde were  following him  on their  way  to Byculla Railway  Station in  order to go to their respective houses. When  Head Constable  Khopkar came near the bus stop en route  but Nos.  6 and  7 in front of gate No. 12 of J.J. Hospital, constable Shinde and constable Gaikwad saw the mob of about  100 persons  standing on  the other  side  of  the footpath of  Sir JJ  Road. They  further saw  that  5  to  6 persons armed  with choppers and knives suddenly crossed the road and  came towards  Head Constable,  Khopkar. Thereafter all those  persons started  stabbing  Khopkar  by  means  of choppers and knives, thereby Khopkar sustained severe wounds and bleeding  and thereafter  he collapsed on the ground. At that stage,  constable Gaikwad and Shinde got frightened and therefrom they  immediately took turn and went  to JJ corner and gave  information to the police about the said incident. On receiving  the information  the police  party went to the place  of  occurrence  and  took  injured  Khopkar  to  J.J. Hospital where  Head Constable Khopkar after examination was declared  dead.   Police  constable   Gaikwad  reported  the incident to the police constable on duty in the hospital who immediately reported the incident to Byculla Police Station. On 4.11.93,  the police  arrested the  two appellants herein and accused Mohd. Ballal and Biyakat Rasool. On 7.11.93, the police requested  Special Executive  Magistrate for  holding identification  parade.   The  eye-witnesses   -  constables Gaikwad and  Shinde alleged  to have  identified the accused persons. Thereafter, on 25.11.93 again, the police requested Special  Executive   Magistrate  to  arrange  identification parade and  inducted appellants  in the  parade. On 15.1.94, accused Jafar  Mohd.  Ismail  Sayyad  was  arrested  and  on 24.1.94, at  the instance  of police,  the Special Executive Magistrate   held    another   detification.    The   police subsequently obtained  permission to apply the provisions of TADA and  after  completing  the  investigation  the  police prosecuted the  accused persons  under TADA.  Thus, the  two appellants, including  the three  other accused,  came to be prosecuted. All  the  five  accused  were  charged  for  the offence punishable  under Section  140 IPC read with section 3(2)(i))(ii) of TADA and also under section 149/302 IPC. All the accused pleaded not guilty to the charge.      The  prosecution   examined  two   eye-witnesses  viz., constables  Gaikwad  (PW-2)  and  Shinde  (PW-11),  who  are alleged to  be the  witnesses of  scene  of  occurrence  and identified the  two appellants in the Court. By the impugned judgment the  appellants  in  the  Court.  By  the  impugned judgment  the   appellants  were   convicted   for   offence punishable under  sections 302/149  IPC  and  under  Section 3(2)(1) of  TADA read  with  section  149  I.P.C.  and  were sentenced to  suffer life  imprisonment and to pay a fine of Rs. 500/-  each, and  in default  to further suffer R.I. for six months.  Accused Jafar  Mohd. Ismail Sayyed, Mohd, Bilal and Liyakat  Rasool Himayat Rasool Shaikh were acquitted for the offence  punishable under  sections 144, 149 and 302 IPC and under  section 3  (2) (i)  (ii) of  TADA. It is, in this way, this appeal has come before us.      The foremost  question that arises for consideration in this appeal is that, "once the Designated Court rejected the evidence of  identification parade, so far as they relate to the  appellants,   on  the  ground  that  there  was  strong possibility of the suspects being shown to the eye-witnesses at the  police station, could the appellants be convicted on the evidence of identification of these accused in the Court by the  witnesses ?  In the  present case,  the  prosecution

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examined two  eye-witnesses, viz.,  constables  Gaikwad  and Shinde (PWs  2 and  11 respectively),  who alleged  to  have witnessed the  scene of  occurrence.  For  the  purpose  for corroboration of  the evidence of the two eye-witnesses, the prosecution  relied  upon  the  evidence  of  identification parades. It  was brought  on record  that, on  7.11.93, PW-5 Special Executive  Magistrate  had  arranged  identification parade wherein  he held  two separate  parades. In  both the parades Special  Executive Magistrate  introduced 22 dummies and 3 suspects at a time. In the said identification parade, Police constable  Shinde (PW-11) is said to h ave identified appellant nos.  1 and  2 viz.,  Shaikh Umar Ahmed Shaikh and Mohd,  Naim   Mohd.  Yasin   Quershi.  The   memorandum   of identification parade  prepared  by  the  Special  Executive Magistrate is  Ex. 27.  Thereafter on 25.11.93, PW-6 Special Executive Magistrate  R.D. Singh held another identification parade. In  that parade  18  dummies  and  6  suspects  were introduced.  Police  constable  Shinde    (PW-2)  identified appellants Shaikj  Umar Ahmed  Shaikh and  Mohd. Naim  Mohd. Yasin Qureshi.  Memorandum of identification parade prepared by R.D.  Singh is  Ext. 29. Singh arranged an identification parade and  in that  parade six dummies and one suspect were introduced. Constable  Shinde (PW-2)  and constable  Gaikwad (PW-11) identified  accused Jafar  Mohd Ismail  Sayyad.  The purpose of  filing of  evidence of  identification parade by the prosecution  was   to connect the appellants and accused No. 3, i.e. Jafar Mohd Ismail Sayyed to the incident alleged to have taken place on 7.12.92.      Although  identification   parades  in  Byculla  Police Station were  arranged by  S.E.M. Shri  Y.N. Orhal and S.E.M Shri Singh,  they took  help of  Police Inspector Wahule who was the Investigating officer for collecting the panchas and the documents.  It was  asking of  Police Inspector  Wahule, police went  to collect the persons. When the police brought these persons  to the  police station, the Special Executive Magistrate did  not verify  as to  whether  the  persons  so brought are in any way connected with police or in fact they are serving  members of  police force. Further, there was no effort on  the part of the two Special Executive Magistrates to verify that persons so brought to the police station were under  any   obligation   of   Police   Inspector,   Wahule. Admittedly, two eye-witnesses, Police Constables Gaikwad and Shinde when  they went  to  the  police  station,  contacted Police Inspector,  Wahule and remained with him. In fact, on the date  of identification parade, the accused persons, who were later  on introduced in the parade, were in the custody of Police Inspector, Wahule. It is also admitted that it was at the  instance of  Police Inspector  Wahule,  the  Special Executive Magistrate  arranged the  identification parade at the police  station. Thus,  Police Inspector Wahule knew the timing when  the parade  is to  take place.  From all  these facts and circumstances, the Designated Court concluded that there is strong possibility that the Police Inspector Wahule has shown  the suspects  to the  two eye-witnesses  who  are serving members  of police  force. At this stage it would be useful to  reproduce here  the findings  of  the  Designated Court concluded  to rejection  of evidence of identification parade :      ".......Admittedly on  the relevant      day, the  accused persons, who were      introduced in  the parade,  were in      the custody of PI Wahule. PI Wahule      had requested  the SEM  to  arrange      the parade.  PI  Wahule  was  aware      about the  timing when  the SEM was

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    going to  arrange the  parade.  So,      there is possibility that PI Wahule      might have  shown the  suspects  to      the  concerned  constable  and  the      constable might have given any idea      to  the  dummies  or  the  panchas.      Admittedly,  the  panch  alone  had      approached  the   witnesses   while      taking the  witnesses to the parade      room. That  apart when  the  parade      was arranged in the police station,      itself, there  is every possibility      that the  witnesses might have seen      the suspects  prior to  the parade.      This possibility  is  escalated  in      the present  case because  both the      witnesses are  the policemen and it      was possible  for the  witnesses to      take round  in the  police  station      and particularly  in  the  lock  up      because the  witnesses  were  aware      that they  were called  that in the      big  cities   like  Mumbai,  it  is      impossible to  spare any  space  to      arrange identification  parade  and      there is  no  bar  to  arrange  the      parades in  the police station. But      sec. 9  of the Evidence Act expects      the independent evidence to connect      the accused  to the  incident. With      this idea  only the courts are very      slow to  accept the  identification      parades which  are arranged  in the      police station.  Apart from that in      the  present  case  the  SEMs  have      accepted   that   they   have   not      followed the  guidelines  given  by      the High  Court. Not only that they      are   not    aware   of   all   the      guidelines. ......"      After recording  the aforesaid  finding, the Designated Court took  the view  that there being strong possibility of the suspects  being shown  to the  witnesses who were police officers, the evidence of identification parade has no value and therefore rejected it.      Since this  appeal being  first  statutory  appeal,  we asked learned  counsel for  the State  of Maharashtra  as to whether he  intends  to  challenge  the  aforesaid  findings pertaining to rejection of evidence of identification parade by the  Designated Court,  but he was unable to displace the said findings recorded by the Designated Court.      The Designated Court after having rejected the evidence of identification  parade on  the ground  that the  suspects were possible  shown  to  the  witnesses,  relied  upon  the evidence of  identification of  the accused  in the Court by the two  witnesses and  on that evidence recorded conviction against  the   appellants.  No   doubt,  the   evidence   of identification parade is not a substantive evidence, but its utility is  for purpose of corroboration. In other words, it is utilised  for corroboration  of the  sworn  testimony  of witnesses in Court as to the identity of the accused who are strangers to  them. The real and substantive evidence of the identity of  the accused comes when witnesses give statement in the  Court, identifying  the accused.  It is true that in the present  case, PW-2 and PW-11 identified the two accused

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who are  the appellants  before us  in the  Court. But,  the question  arises;  what  value  could  be  attached  to  the evidence of  identity of  accused by  the witnesses  in  the Court when  the accused were possibly shown to the witnesses before the  identification parade in the police station. The Designated Court  has already  recorded a finding that there was strong  possibility that  the suspects were shown to the witnesses. Under  such circumstances,  when the accused were already shown  to the witnesses, their identification in the Court by  the witnesses  was meaningless.  The statement  of witnesses in  the Court identifying the accused in the Court lost all its value and could not be made basis for recording conviction against  the accused. The reliance of evidence of identification of the accused in the Court by PW-2 and PW-11 by the  Designated Court,  was an  erroneous way  of dealing with the  evidence of  identification of  the accused in the Court by  the two  eye-witnesses and  had caused  failure of justice.  Since  conviction  of  the  appellants  have  been recorded  by  the  Designated  Court  on  wholly  unreliable evidence, the  same deserves to be set aside. We accordingly set aside  the judgment and order dated 14.10.1997 passed by the Additional Judge, Designated Court for Greater Bombay in T.S.C. No.  21  of  1994,  convicting  the  appellants.  The appellants are  acquitted of charges. The appeal is allowed. The appellants  are entitled  to be  released forthwith.  We order accordingly.