The State of Maharashtra v. Nandkumar Raut

Judgment

1. This Appeal section 378(1) Code Criminal Procedure, 1973 taking exception Judgment Order 30th March 1988 passed learned Addl.Sessions Judge, Greater Mumbai. By Judgment Order, Respondent-Accused acquitted offences punishable section of the Indian Penal Code ("IPC" for short) and section 27 of the Arms Act, 1959. 302 : 2 :

2. The charge against Respondent 21st June 1984

21.15 Mughal Lane,Mahim, Mumbai, Victoria Building, Respondent committed murder Pradeep Narayan Raut firing a revolver thereby committed offence punishable section 302 IPC. The further charge against Respondent possession of and/or used a fire arm in breach of section 27 of the Arms Act, 1959.

3. The prosecution examined 11 witnesses. The prosecution victim Pradeep walking towards in Mogul Lane 21st June

1984. When Victoria Building

9.15 Respondent-accused p.m., victim Pradeep and ran away. The victim Pradeep was transferred to Hospital where he succumbed to injuries.

4. Shri Shaikh, through learned A.P.P. evidence relevant documents. He submitted atleast witness i.e. P.W.No.3 Waman identified Respondent. He submitted evidence P.W.No.3 consistent and there is no reason why P.W.No.3 should not be believed. He submitted that only conclusion which appreciating evidence : 3 : Respondent established beyond reasonable doubt. He, therefore, submitted Appeal allowed and the Accused be convicted for an offence punishable under section 302 of the IPC.

5. We evidence record. P.W.1 Prakash Ayare proceeding a towards house. On Mughal Lane, a stepped gathered, victim Pradeep injured. P.W.1 stated Pradeep notice Pradeep crowd. He stated brother Sanjay One Shekhar Raut crowd. P.W.1 brother Sanjay, victim Shekhar Raut victim KEM Hospital hospital, received a taxi. P.W.1 stated victim Pradeep bullet injuries thereafter victim consciousness. P.W.1 contacted Mahim Police Station telephone KEM Hospital subsequently registered F.I.R. Nothing evidence witness Accused concerned. P.W.2 Sanjay Ayare stated house, noticed a Victoria building therefore visited site. He knowing victim Pradeep P.W.1 Prakash, Shekhar Raut and the wife of the victim took the victim : 4 : to the KEM Hospital.

6. P.W.3 Waman stated employed Bombay Telephones a Helper a He Hemers Industry Sitaladevi Temple Road, Mahim. stated a resident Anuradha Building, Mughal Lane, Mahim, Mumbai. P.W.3 Waman deposed Park proceeding Hemers Industry Shivaji by Mughal Lane. On stopped Victoria Building friend Sindhi. He talking friend standing dispensary Dr.Arun victim

at. He claims offender deceased Pradeep. He stated offender towards eastern direction firing shots. P.W.3 claims behind offender a distance 100 feet. He stated offender a pistol. He stopped chasing a distance 100 feet. P.W.3 further stated obstruct offender. P.W.3 described offender apprehend wearing a checks design. P.W.3 further a stripes design a (patti) covering offender. He deposed colour offender wearing a cap. According : 5 : offender’s height 5 6 30 years. He described offender having a complexion. He identified Court. He claimed identified accused accused identification parade 15th November 1984 Police station. In cross-examination P.W.3 admitted assailant having a pistol assailant a dangerous therefore, frightened. In cross-examination further admitted possible height offender earlier statement height offender 5 6 feet was correct. P.W.3 bracketed portion marked "A" statement 22nd June 1984 wherein Police recorded Accused having complexion. He stated that he had told the Police that the accused was of fair complexion.

7. The P.W.No.3 deposed identification parade the Mahim Police Station, P.W.3 stated called Police Station before parade. He stated to wait in one adjacent room before he was taken to the parade room. He further stated that : "It correct I waiting : 6 : accused havaldars infront parade room. At accused havaldars parade room I was satisfied that he was the offender who had assaulted Pradeep." Apart identification parade Police Station, P.W.3 admitted opportunity to see the accused when he was being taken to the parade room.

8. P.W.4 Vishnu a draftsman office Executive Engineer, P.W.D. Bombay, prepared a sketch incident. P.W.5 Dilip Godambe Special Executive Magistrate allegedly identification parade. The witness described manner identification parade Mahim Police Station. In cross-examination, witness admitted mention panchanama Exh.21 closed windows parade of the parade room at the time when the suspect was brought from the lockup to the parade room.

9. P.W.6 Kishore Narayan Raut. He brother deceased Pradeep. He stated : 7 : deceased Pradeep residing ground building Savitri Sadan Mughal Lane, Mahim, Mumbai. There a building servants quarters. witness stated The ownership father a garage adjacent shed. He stated father After accused father. staying months accused shed. One thereafter accused a threat witness brother 22nd March 1984 witness lodged N.C.Complaint Mahim Police Station against accused. In cross-examination witness admitted remember whether accused threat personally. He admitted aware about the talk which took place between his father and the accused.

10. P.W.7 is Mathew Cosma D’Souza. He claims present incident sitting relevant platform Ganpati Temple Bhaskar Patil Wadi. He stated crackers Mughal Lane towards offence. At person running towards Bhandar Galli a pistol hand. : 8 : He deposed person wearing a chased one Waman. He described offender complexion having height 5’-6". He stated offender wearing position identify offender. He stated identified accused identification parade Mahim Police Station. In cross-examination a a admitted knowing accused incident accused residing a distance 2 3 minutes accused childhood. He admitted disclose Police accused offender. He stated 21st parade anyone June 15th 1984 holding November 1984 disclose accused offender. In cross-examination stated identify accused offender identification parade. stated earlier evidence respect He correct. He stated identify accused offender parade frightened. admitted during period recording deposition 25th March 1988 He did not disclose to any one that the accused is the offender. : 9 :

11. The witness P.W.8 Pratap Janardan Kore. He brother the wife victim. He deposed enmity between deceased Accused garage compound Savitri Sadan. Except aforesaid statement regarding enmity between the Accused and the victim nothing turns on the evidence of the said witness.

12. P.W.9 Shivaji Jaiwantrao Lahade, Sub-Inspector attached Mahim Police Station. investigated offence supervision He Shankar Raorane Police Inspector attached Police Station. Nothing evidence accused concerned. He cross-examined. P.W.10 Dr.Rajesh Chunilal treated victim KEM Hospital. He deposed victim brought Hospital examined Dr.Hillary Nazareth. surgery victim performed He deposed Dr.R.D.Bapat Doctors. He proved papers produced record certificate. He deposed bullet injuries victim sufficient ordinary course death. P.W.11 Shantaram Dattatraya Raorane Police Inspector attached Mahim Police Station. He stated Sub-Inspector Lahade carried investigation supervision. He deposed accused : 10 : surrendered at the Police Station on 9th November 1984 in presence of his Advocate.

13. We perused evidence relevant documents record. So victim concerned, hardly dispute bullet injuries sustained him. The defence Counsel cross-examined Dr.Rajesh Chunilal aspect. Therefore, the only question which is to be decided is whether the accused fired bullets at the victim or not.

14. For establishing involvement accused, prosecution heavily relied evidence Waman, P.W.3. There material contradictions evidence Waman. In examination-in-chief description clothes person accused. He feet. stated height victim 5 He stated accused 6 complexion. There serious challenge version cross-examination defence Counsel. In cross-examination P.W.3 stated assailant relevant a distance 5 victim Pradeep. He stated victim assailant towards Rautwadi. He stated hearing attention firstly towards victim thereafter towards : 11 : assailant. He stated assailant seconds. In cross-examination admitted earlier statement examination-in-chief height accused 5 6 correct. He admitted a covering offender wearing a cap. He confronted statement recorded Police marked "A" allegedly stated offender having complexion. As identification parade concerned, admitted Police Station waiting outside identification parade held, accused havaldars parade identified accused difficult offender time. believe version witness. When substantial offender covered a offender 10 seconds, cannot accepted that he was in position to identify the offender. It

15. The witness claims accused P.W.7 Mathew D’Souza. described accused having a pistol wearing a cheeks covered a cloth. He height : 12 : accused 5’-6" stated accused complexion. The witness admitted cross-examination knowing accused 21st June

1984. He however admitted statement recorded Police 26th June 1984, inform Police Accused offender. He admitted holding identification parade November 1984 disclose anybody offence committed accused identification parade. Though examination-in-chief witness stated identified accused, cross-exmaination stated identify accused identification parade. He admitted during i.e. 1984 1988 15th disclose anyone accused offender. The evidence P.W.7 obviously disbelieved claims accused offence admittedly inform Police statement recorded Accused herein committed offence. P.W.7 the Accused. He disclosed parade. Police. In question holding identification It obvious P.W.7 mislead investigating agency. The identification parade : 13 : held. Even parade, identify accused. Thus witness totally unreliable. Identification of the Accused made by P.W.7 is totally worthless.

16. In identification parade concerned, admitted position Police Station witness occasion accused before identification parade Constables accused identification parade held. The witness should a separate suspect him. P.W.5 Dilip Godambe Special parade. discloses disclose Executive Magistrate identification The cross-examination witness panchanama parade closed windows parade parade room at the time when the suspect was brought from the lockup.

17. In identification parade concerned, learned Judge rightly suffers serious infirmities. Firstly Police Station secondly P.W.3 allegedly identified accused opportunity accused lockup trial, looses : 14 : parade Constables claims identified accused parade room. The P.W.No.3 Waman identified accused Court. The evidence identification parade a substantive evidence, utility purpose utilised corroboration. In words, corroboration testimony witnesses Court. The substantive evidence identification Accused a witness identifies Accused Court. The Apex Court a Judgment reported (1998) 5 SCC 105 (Sk.Umar Ahmed Shaikh v/s. State Maharashtra) accused already witness before identification accused identification cannot conviction. No learned Judge discarded evidence identification parade evidence P.W.3 P.W.7 discarded. identification accused extremely doubtful. Some capital sought Accused absconding 9th November 1984,. However, itself sufficient guilt of the accused. Moreover there is no recovery of the weapon allegedly used by the accused.

18. We perused impugned Judgment order. Court Court The : 15 : The learned Sessions Judge possible a evidence record. Even presumed another possible evidence record, appeal against acquittal, favours accused accepted. In circumstances, appeal. Appeal dismissed. The furnished Respondent-Accused pursuant action section The 390 of the Code of Criminal Procedure, 1973 stands cancelled.