Criminal Appeal No. 177 of 2019 · Bombaybench High Court
Case Details
2024:BHC-AUG:7735-DB APEAL-177-19+1.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 177 OF 20191. Pampya Damu Shinde Age: 30 years, Occu.: Labour, R/o Manmodi, Tq. Tuljapur, Dist. Osmanabad2. Tunya @ Premchand Damu Shinde Age: 32 years, Occu.: Labour, R/o Manmodi, Tq. Tuljapur, Dist. Osmanabad..APPELLANTSVERSUSState of MaharashtraThrough Police InspectorPolice Station Tamalwadi,Dist. Osmanabad..RESPONDENTANDCRIMINAL APPEAL NO. 646 OF 2019Balaji Shivaji KaleAge: 32 years, Occu.: Labour,R/o Baswantwadi, Tq. Tuljapur,Dist. Osmanabad..APPELLANT VERSUSState of MaharashtraThrough Police InspectorPolice Station Tamalwadi,Dist. Osmanabad..RESPONDENT....Mr. N.S. Ghanekar, Advocate h/f Mr. S.P. Bhadge and Mr. S.S. Mhase,Advocates for appellantsMr. S.R. Wakle, A.P.P. for respondent - State....CORAM : R.G. AVACHAT AND NEERAJ P. DHOTE, JJRESERVED ON : 11th MARCH, 2024PRONOUNCED ON : 12th APRIL, 20241
Legal Reasoning
APEAL-177-19+1.odtJUDGMENT ( PER : R.G. AVACHAT, J. ) :1.Both these appeals are being decided by this common judgmentsince the challenge therein is to one and the same judgment and order ofconviction and consequential sentence dated 04th February, 2019 passed bySpecial Judge, MCOC Act, Aurangabad in Special Case No. 2 of 2015. Thedetails of conviction and consequential sentence imposed against theappellants are as under :-SectionActSentence396IPCLife Imprisonment, Fine of Rs.1,000/- each, Indefault, Simple Imprisonment for 15 days397IPCImprisonment for 7 years, Fine of Rs.1,000/- each,in default, Simple Imprisonment for 15 days3(1)(i)MCOC ActLife Imprisonment, Fine of Rs.1,00,000/- each, indefault, Simple Imprisonment for 2 ½ years3(2)MCOC ActImprisonment for 5 years, Fine of Rs.1,00,000/-each, in default, Simple Imprisonment for 2 ½ years3(3)MCOC ActImprisonment for 5 years, Fine of Rs.1,00,000/-each, in default, Simple Imprisonment for 2 ½ years3(4)MCOC ActImprisonment for 7 years, Fine of Rs.5,00,000/-each, in default, Simple Imprisonment for 3 ½ yearsThe substantive sentences are directed to run concurrently.2.Facts, as are disclosed from the police papers (charge-sheet) andthe evidence before the trial Court, are as under :-P.W.1 - Jayaji (informant) is the resident of Yemgarwadi, Tq.Tuljapur. Agriculture was his profession. Adjoining the land of the informantthere was a land belonging to one Pandurang Jogdand. Pandurang hasthree sons. They were not residing at Yemgarwadi. Two of them were inPune. Another son, P.W.2 – Sakharam would run a shop at Ausa, Dist.2 APEAL-177-19+1.odtLatur. The sons would occasionally visit their parents. As such, Sakharamhad come to the village to meet his parents.3.It was little past 09:00 p.m. on 13th December, 2014. Theinformant, Pandurang and his son Sakharam were watering the crops in theirrespective fields. It is also the case of prosecution that Sakharam invitedJayaji (informant) for dinner at his residence. The informant, therefore, joinedhim. Both of them were taking dinner in the front yard of their shed-cum-house. Kashibai, mother of Sakharam, was serving them food. All of asudden two unknown persons first came there. One of them was armed witha dagger. The other one did have a knife with him. Four others followedthem. One of the first two assaulted on the arm of Sakharam with thedagger. When Kashibai intervened, the very assailant gave a blow on herchest with the dagger. The four, who followed the first two, also joined inbeating up the informant and others. One of them relieved Kashibai of hermangalsutra. The other one robbed the informant of his gold pendent worthRs.5,000/-. Sakharam was robbed of Rs.6,000/- cash and a cell phone.Pandurang was resting in a neighbouring shed. Two of four entered theshed. They also beat up Pandurang. The dacoits thereafter confined theinformant, Sakharam and Pandurang in the shed and bolted the door fromoutside. The dacoits then smashed the glowing electric bulb and then fled.4.It is also the case of prosecution that both, the informant andSakharam removed one of the tin sheets of the shed and came out. They3 APEAL-177-19+1.odtrealised Kashibai to have passed away. Sakharam and his father hadsuffered various injuries. The informant too had suffered injuries. Both, theinformant and Sakharam, therefore, came to the village. They related theincident to villagers. They were first rushed to the Government Hospital atTuljapur. Sakharam and Pandurang were then shifted to Civil Hospital,Osmanabad. They were indoor patients for more than fifteen days. Thepolice visited Government Hospital, Tuljapur and recorded P.W.1 - Jayaji’sstatement-cum-F.I.R. (Exh.19).5.Crime vide C.R. No.83 of 2014 was registered with TamalwadiPolice Station, Dist. Osmanabad. The Dacoity Prevention Squad firstarrested Pampya (Accused No.1). Involvement of six others was surfaced.The other two appellants were arrested. Four others are still stated to havebeen absconding. Scene of offence panchanama (Exh.34) was drawn.Autopsy of the mortal remains of Kashibai was conducted. Two testidentification parades (‘T.I. parade’) were held. The appellants wereidentified by both, the informant and P.W.2 Sakharam. Pursuant to thedisclosure statement made by appellant – Pampya, a dagger came to berecovered under the panchanama. While pursuant to the another disclosurestatement made by appellant – Balaji, a sum of Rs.4,000/- came to be seizedfrom his residence.6.During investigation it was revealed that it was a crime committedby an organised crime syndicate headed by appellant – Pampya. Provisions4
Legal Reasoning
APEAL-177-19+1.odtof Maharashtra Control of Organized Crime Act, 1999 (‘MCOC Act’) were,therefore, invoked. A prior approval for registration of offence under theMCOC Act was granted. Upon completion of investigation, charge-sheet wasfiled after obtaining sanction for prosecution for offences under the said Act.7.The trial Court framed charge (Exh.8) against the appellantsherein. As stated above, four others are still absconding. Prosecutionexamined seventeen witnesses and produced in evidence certaindocuments. On appreciation thereof, the trial Court convicted the appellantsas stated above.8.Learned counsel for the appellant would submit that the F.I.R. andpolice statements of the victims are silent to give physical features of theculprits. Before holding of T.I. parade, the informant was summoned to thepolice station and informed of names and whereabouts of the arrestees. Thesecond T.I. parade was held four months after the alleged incident. Theappellants were arrested in some other crime. They were transferred to thecrime registered with Tamalwadi police station. The investigating officer didnot take efforts to keep the appellants in veil, until before the T.I. parade wasconducted. The Executive Magistrates, who conducted the T.I. parades, didnot comply with the directions in that regard. The police machinery tookactive part in holding the T.I. parades. Dummies of different age group,different height and complexion were selected. The second T.I. parade ofthe appellant was held in one go.5 APEAL-177-19+1.odt9.A sum of Rs.4,000/- allegedly recovered, pursuant to thestatement made by appellant – Balaji, did not bear any earmark to attributethe same to have belonged to Sakharam. No denomination of the currencynotes was given either in the F.I.R. or in statement recorded under Section161 of Code of Criminal Procedure. The seized articles viz. dagger and knifewere not sealed, as has been required under the law. Those were sent tothe FSL after one month of its seizure. The seizure and consequential C.A.report, therefore lose its legal sanctity. According to learned counsel, theprosecution thus failed to bring home the charge beyond reasonable doubt.He, therefore, urged for allowing the appeals.10.Learned A.P.P. would, on the other hand, submit that theappellants were identified in T.I. parades. It is an offence of dacoity withmurder. It was a continuing unlawful activity of organised crime syndicateheaded by appellant – Pampya. The dagger came to be seized pursuant tothe disclosure statement made by him. The C.A. report thereof indicates it tohave been stained with human blood. The clothes on the person ofappellants at the time of commission of the crime were described in the F.I.R.Those too came to be seized. The C.A. reports pertaining thereto alsoindicate those were stained with blood. The appellants were also identifiedbefore the trial Court. The first T.I. parade was conducted within ten days ofcommission of crime when memory of the informant was fresh. The othertwo appellants viz. Balaji and Tunya were arrested on 19th December, 2014and 11th February, 2015, respectively and were identified in second T.I.6 APEAL-177-19+1.odtparade held at Harsul Central Prison, Aurangabad. Learned A.P.P.ultimately urged for dismissal of appeals.11.Considered the submissions advanced. Perused the evidence onrecord and the judgment impugned herein. Let us advert thereto andappreciate the same.12.Invocation of the provisions of MCOC Act was not seriously takenexception to before the trial Court and this Court as well. P.W.15 – AmiteshKumar was the then Inspector General of Police, Aurangabad. He grantedprior approval under Section 23(1) of the MCOC Act. Same finds place atExhibit 84. While P.W.14 – Krishanlal Bishnoi was the then AdditionalDirector General of Police (Law and Order), Mumbai. He accorded sanctionfor prosecution of the appellants and four others for offences punishableunder the said Act. Both these witnesses have not been cross-examined.We have, therefore, to conclude that the provisions of MCOC Act have rightlybeen invoked in the case in hand.13.According to learned counsel for the appellant, prosecution hasfailed to make out the offences under the I.P.C. and consequently theirconviction for offences under MCOC Act would also fail.The incident took place by little past 09:00 p.m. on 13th December,2014 in a shed-cum-room of P.W.2 – Sakharam in his agricultural land atvillage Yemgarwadi. P.W.1 – Jayaji (informant) would cultivate P.W.2 –7 APEAL-177-19+1.odtSakharam’s land on crop share basis. He too has his agricultural landadjoining the land of P.W.2 – Sakharam. Just sometime before the incident,both, P.W.1 – Jayaji (informant) and P.W.2 – Sakharam were watering thecrops in their respective fields. P.W.1 – Jayaji (informant) joined P.W. 2 –Sakharam on his invitation for dinner. Both of them were taking dinner.Kashibai (deceased), mother of P.W.2 – Sakharam was serving them meal.P.W.2 – Sakharam’s father, Pandurand was resting in the adjoining shed.14.P.W.1 – Jayaji (informant) testified that all of a sudden twopersons entered their shed first. It is in his evidence that both of thembrandished dagger and knife. They were followed by four others. It is furtherin his evidence that one of the first two assaulted on P.W.2 – Sakharam’sarm with a dagger to compel him to deliver cash and mobile. Kashibai(deceased), P.W.2 - Sakharam’s mother, intervened. The very personassaulted on her chest with the dagger. She fell down. One of the first twothen assaulted P.W.1. He robbed P.W.1 – Jayaji of gold pendent. P.W.2 –Sakharam was also robbed of his cell phone and cash amounting toRs.6,000/-. One of the last four entered the neighbouring shed andassaulted Pandurang, father of P.W.2 – Sakharam.15.On somewhat same lines is the evidence of P.W.2. Both of themidentified appellant – Pampya as the one, who assaulted P.W.2 – Sakharamand Kashibai with dagger. P.W.1 – Jayaji identified appellant – Balaji as theone, who assaulted and robbed him of gold pendent. According to P.W.1, it8 APEAL-177-19+1.odtis appellant – Tunya, who entered the neighbouring shed and assaultedPandurang. Admittedly, both, P.W.1 – Jayaji and P.W.2 – Sakharam did notsee appellant – Tunya to have assaulted Pandurang. Pandurang has notbeen examined as a witness. There is further evidence to indicate that thedacoits confined P.W.1, P.W.2 and Pandurang in the shed and then bolted itfrom outside. Both, P.W.1 and P.W.2 had to come out of the shed only afterremoving one of the tin sheets of the shed, wherein they were confined.16.Close reading of cross-examination of the prosecution witnessesindicate that the factum of dacoity with murder at the shed in the agriculturalland of P.W.2 – Sakharam is undisputed. In the said incident, Kashibaisuccumbed.17. In the close neighbourhood of the spot of incident, there was noinhabitat. P.W.1 and P.W.2, therefore, went to the village and returned to theplace of incident with some villagers. Police authorities were informed onphone. All of them were first rushed to the Government Hospital at Tuljapur.P.W.2 – Sakharam and his father, Pandurang then were shifted to theGovernment Hospital at Osmanabad. P.W.8 – Dr. Kshirsagar examined allof them. He too conducted postmortem examination of the mortal remains ofKashibai. He noticed following injuries on her person and the person ofP.W.1 – Jayaji, P.W.2 – Sakharam and Pandurang :-Kashibai :- A) Stab wound on left side of chest, 4.5cm x 2cm, upto the heart. Margins are clear and edges clear cut. Afterfollowing the tract of stab, there was evidence of purporation to9 APEAL-177-19+1.odtheart at middle part 4 x ½ cm x posteral wall. Right lung tissuecoming out from 3rd intercostial space.B) Right ear lobule lacerated from ring puncture side.Internal injuries :- Left side lung tissue coming partially outsidethe thorax from intercostal space. There was evidence ofhemothorax approximately 800 ml. In left side. There wasevidence of blood clots in pericardian, approximately 400 ml.Evidence of perforation of heart anterior to posterial siteapproximately 4 cm and 1 cm rent posterial. There was evidenceof hemoparicardium, approximately 400 ml.Pandurang :- stab wound with acute bleeding, open chest injury,having 4 x 1 cm. in to lung deep, on right side chestSakharam :- (I) Incised wound with acute bleeding, 10 cm x 2 cmto muscle deep. Located on right maxilla going up to right ear.(II) Incised wound, 4 cm x 1 cm x muscle deep in between web ofindex and middle finger.(III) Incised wound 3 x 1 cm x muscle deep on left forearm.(IV) Incised wound, 1 x 0.5 cm x muscle deep on right forehead.(All are simple in nature)(V) Incised wound, 4 cm x 1 cm x muscle behind the right ear.(Grievous injury)Jayaji :- (I) Incised wound 3 cm x 1 cm x muscle deep, on leftforehead.(II) Incised wound, 2 cm x 0.5 cm x muscle deep on left thumb.(III) Incised wound 3 x 0.5 cm x muscle deep on left forearmbelow elbow (posterior).(IV) Incised wound, 2 x 0.5 cm x muscle deep on right thumb(V) Stab wound, 1 cm x 0.5 cm x muscle above left shoulder(VI) Incised wound, 2 x 0.5 cm x muscle deep on right hand wrist.(All are simple in nature)18.According to him, Kashibai died due to injury to heart due to stabinjury to chest (left) (perforation). Injury certificate of Pandurang (Exh.50)indicates him to have suffered one stab wound with acute bleeding, open10 APEAL-177-19+1.odtchest innury, having 4 x 1 cm. into lung deep, on right side chest, probablycaused by sharp pointed weapon, while injury certificate of Sakharam andSayaji (Exh.51 & 52 respectively) indicate them to have suffered 5-6 incisedinjuries, though simple in nature.19.P.W.4 – Siddheshwar is a witness to the inquest panchanama(Exh.37). The scene of offence panchanama (Exh.34) reinforces theprosecution case of dacoity to have taken place at the residence of P.W.2 –Sakharam.20.The question is whether the appellants before us have committedthe said crime. P.W.1 – Jayaji (informant) identified appellant – Pampya asthe one of first two, who arrived brandishing dagger and knife. He alsoidentified him as the one, who assaulted on the arm of P.W.2 – Sakharamand on chest of Kashibai. He then identified appellant – Balaji, whoassaulted and robbed him of gold pendent. Both, P.W1 and P.W.2 identifiedappellant – Tunya as the one, who entered the neighbouring shed to assaultPandurang.21.It is P.W.1 – Jayaji, who lodged the F.I.R. (Exh.19) while he wasadmitted in Government Hospital, Tuljapur. As per the prosecution case, itwas the Dacoity Prevention Squab that had first arrested appellant – Pampyaon 17th December, 2014, while two other appellants viz. Balaji and Tunyawere arrested on 19th December, 2014 and 11th February, 2015, respectively.11 APEAL-177-19+1.odtP.W.1 – Jayaji was confronted with his F.I.R. (Exh.19). According to him, theculprits were unknown. He was taking information as to whether the dacoitswere arrested or not. After they were arrested, he was called to the policestation. The F.I.R. (Exh.19) is conspicuously silent to give physical featuresof the dacoits. The same has been duly brought on record. It has only beenreported therein that the dacoits were 5-6 in number and were in the agegroup of 25-35 years. The F.I.R. is also conspicuously silent to attributeovert acts to the appellants before us, which has been attributed to them byboth, P.W.1 and P.W.2 in their examination-in-chief. True, P.W.1 – Jayaji inhis evidence before the Court and in the F.I.R. as well gave colours of theclothes on the persons of the dacoits at the relevant time.22.Appellant – Pampya’s T.I. parade was held in a jail at Osmanabadon 23rd December, 2014. P.W.1 – Jayaji only participated therein. Heidentified appellant – Pampya standing in the row of eight persons includinghimself (seven dummies). It is further in his evidence that the dummies inthe row were of different complexion and height. He stated that he wouldtake information as to whether the dacoits were arrested or not. After theirarrest, he was called by police. He, however denied the culprits to havebeen shown to him by the police. For the T.I. parade that was held on 23rdDecember, 2014, police had come to take him to jail. First he went to policestation and then to District Prison, at Osmanabad. He claimed to haveidentified appellant – Pampya standing at Sr.No.6 in the row.12 APEAL-177-19+1.odt23.It is further in his evidence that about 3-4 months thereafter hewas again called at Aurangabad for T.I. parade. In the said T.I. parade heidentified other two appellants, who were standing in the row at differentserial numbers alongwith appellant – Pampya.24.The evidence of P.W.2 – Sakharam is almost on the lines ofevidence of P.W.1 – Jayaji. His evidence, however differs on the count thataccording to him all the dacoits had come together. He did not claim anyoneof them had brandished either dagger or knife. He gave description of colourof clothes on their person. Those were light sky blue colour T-shirt sported bythe person armed with the dagger (appellant – Pampya). According to him,appellant – Pampya had assaulted on his arm with the dagger. He thenassaulted his mother. It is further in his evidence, the two others startedassaulting P.W.1 – Jayaji with knife. He identified appellant – Balaji as oneof them. His evidence further indicates that the other two including appellant– Tunya entered the neighbouring shed and assaulted his father –Pandurang. His evidence suggests that he was robbed of a cell phone andsum of Rs.6,000/- in cash. Her mother – Kashibai was relieved ofmangalsutra.25.His evidence further indicates that on 16th April, 2015 he identifiedall the three dacoits in the T.I. parade held at Aurangabad. The said T.I.parade was held in one go. The appellants were standing at Sr. Nos. 2, 10and 19. He was an indoor patient for little over fifteen days, while his fatherfor about a month.13 APEAL-177-19+1.odt26.The cross-examination of P.W.2 – Sakharam indicates that he didnot give physical features or complexion of the dacoits. According to him,when he paid visit to the police station, the police told him about names ofthe dacoits and their whereabouts. It were the police, who informed himabout T.I. parade to be held. He learnt that the dacoits were of Pardhicommunity. Deputy Superintendent of Police had accompanied him toAurangabad for T.I. parade. P.W.1 – Jayaji was with them. It is further in hisevidence that some of the dummies placed in the row were dwarf whileothers were heighted. All of them were of different age group. He againcorrected himself to state that they were in the age group of 25-30 years.27.P.W.2 – Sakharam was confronted with his police statementdated 14th December, 2014, wherefrom following fact has been disclosed :-“I did not tell them about details of faces of dacoits.”Same indicates P.W.2 – Sakharam to have neither givencomplexion nor described the dacoits in his statement to the police.28.P.W.11 – Sunil was a witness to the T.I. parade dated 23rdDecember, 2014. His evidence suggests that P.W.1 – Jayaji identifiedappellant – Pampya while he (Pampya) was standing at Sr.No.4. Accordingto him, the arrangements made were such that no one could get glimpse ofthe suspects before the T.I. parade was held. His evidence, howeverindicates that Tahsildar, who conducted the T.I. parade, both the panchasand P.W.1 had entered the jail premises together. They were together until14 APEAL-177-19+1.odtconclusion of T.I. parade. He went on to state that the dacoits in that rowwere of different age group.29.P.W.16 – Kashinath, the Tahsildar, who conducted the first T.I.parade dated 23rd December, 2014 was not examined by the prosecution inexamination-in-chief, since the T.I. parade panchanama came to be admittedin evidence. He was, however summoned for cross-examination. It is in hisevidence that he did not make any correspondence with the jail authoritiesfor fixing date for T.I. parade or any arrangement with respect thereto. Hedid not mention age of the accused to be identified in T.I. parade. He did notchoose the dummies for the T.I. parade to be held. According to him, thedummies selected were of different age group. The panchas were with him.He, however denied to have not observed the directions as regards T.I.parade given in the criminal manual.30.P.W.13 – Manik was the Nayab Tahasildar at the relevant time.He conducted the second T.I. parade in Harsul Central Prison, Aurangabadon 16th April, 2015. According to him, both, P.W.1 - Jayaji and P.W.2 –Sakharam identified the appellants in the T.I. parade. His evidence furtherindicates that the said T.I. parade was held in one go. The dummies were ofdifferent age group. They were of different complexion, height and features.He denied to have not complied with the directions as regards holding of T.I.parade. His evidence further indicates that the T.I. parade was firstscheduled to be held on 19th March, 2015. Same was, however posponed to16th April, 2015.15 APEAL-177-19+1.odtRecoveries :-31.P.W.3 – Javed was a witness to the disclosure statement (Exh.28)made by appellant – Balaji pursuant to which a sum of Rs.4,000/- came to berecovered from his house under panchanama (Exh.29). On the same lines isthe evidence of P.W.17 – Sayyed Asif, Investigating Officer. Admittedly, thedescription of currency notes had not been given either in the F.I.R. (Exh.19)or in the police statements of P.W.1 – Jayaji and P.W.2 – Sakharamrespectively. The seized currency notes, therefore, could not be held to bethe stolen property.32.P.W.6 – Ananda was a witness to the seizure of clothes. It is inhis evidence that on 17th December, 2014, appellant – Pampya delivered topolice clothes like shirt with lines thereon and jean pant. According to him,there were blood stains thereon. The police seized those clothes underpanchanama (Exh.42). Then he was again called on 22nd December, 2014.One Vinod Jogdand delivered blood stained clothes of his father and brother.Those were seized under panchanama (Exh.43).33.Cross-examination of this witness, however indicates that theclothes which were seized by the police under panchanama (Exh.42) werealready kept below the table. So far seizure of the clothes thereafter isconcerned, his evidence indicates that the police had told him the clothes tohave already been seized. He was asked to sign the panchanama in thatregard.16 APEAL-177-19+1.odt34.P.W.7 – Hanumant is a witness to the disclosure statement madeby appellant – Pampya, pursuant to which a dagger came to be seized fromunder a fodder at one babul tree. The disclosure statement made byappellant – Pampya is at Exhibit 45. The seizure panchanama of daggerfinds place at Exhibit 46.35.The evidence of this witness indicates that the label containing hissignature and that of other pancha was affixed on the handle of the dagger.His evidence is conspicuously silent to indicate the dagger to have beenseized, wrapped and then sealed as per police procedure. The seizurepanchanama too discloses non-compliance of the seizure procedure.36.P.W.9 – Shivraj and P.W.10 – Dilip were the witnesses to thepanchanama regarding disclosure statement by appellant – Tunya andrecovery of a knife. Both these witnesses did not stand by the prosecution.The relevant panchanamas have been admitted in evidence only to theextent of proof of signature of these witnesses (Exh.58 and 59).37.P.W.11 – Raju is a witness to the seizure of clothes delivered byaccused Shinde. This witness even did not give first name of any of theappellants. While two of the three appellants have common surname,Shinde. The clothes seizure panchanama is at Exhibit 63.38.P.W.12 - Sachin is a Nodal Officer serving with Idea CellularCompany. He produced in evidence certain documents in the nature of Call17 APEAL-177-19+1.odtData Record (C.D.R.), documents submitted to the cellular company by theconcerned consumers for obtaining SIM cards, etc. He also producedcertificate under Section 65B of the Evidence Act along therewith.39.Close reading of these documents indicate that none of the cellphones was either seized from any of the appellants nor the SIM cards standin either their names or names of their family members. The C.D.Rs. Werenot relied on. We fail to understand as to how the Investigating Officer couldget lead based on these documents first to arrest appellant – Pampya as asuspect involved in the dacoity.40.P.W.17 – Sayyed Asif is the Investigating Officer. According tohim, appellant – Pampya was first arrested by the Dacoity Protection Squadon 19th December, 2014. It is, however not known as to why the T.I. paraderelating to appellant – Balaji was not held alongwith the T.I. parade ofappellant – Pampya, which was held on 23rd December, 2014. According tohim all the seized articles were sent to FSL for analysis and report. Thepolice officer, who carried the articles has not been examined. The articleswere sent one and half month after the incident. True, the other C.A. reportsregarding seized clothes indicate blood stains thereon. The clothes were,however many in number. All the articles were sent to FSL on 30th January,2015 i.e. about one and half month after the incident.18 APEAL-177-19+1.odtAppreciation :-41.True, an unfortunate incident of dacoity took place at a shed-cum-house of P.W.2 – Sakharam in his field at village Yemgarwadi by little past09:00 p.m. on 13th December, 2014. Kashibai, mother of P.W.2 – Sakharampassed away. P.W.1 – Jayaji, P.W.2 – Sakharam and Pandurang, father ofP.W.2 were severely injured. It was an offence of dacoity with murder andrelated offences. P.W.1 – Jayaji lodged the F.I.R. (Exh.19). Same is,however silent to record therein physical features of the dacoits. Same is thecase about police statement of P.W.1 – Jayaji. He admitted that on arrest ofappellant – Pampya, he was called to the police station. True, he deniedPampya to have been shown to him. It is, however not known as to whyP.W.1 – Jayaji was summoned to police station after arrest of appellant -Pampya. His evidence, however indicate that although he identified Pampyain T.I. parade, the dummies were of different complexion and height.According to the Executive Magistrate, who held the T.I. parade, thedummies were provided by the jail authorities. The currency notes seizedpursuant to the disclosure statement made by P.W.7 - Hanumant cannot besaid to be the stolen property since no description of denominations of theseized currency notes figure in the F.I.R. or in the police statement of P.W.2.The second T.I. parade was held about four months after the incident ofdacoity. P.W. 18 – Vidhate, Investigating Officer did not offer anyexplanation as regards delay. There is no evidence to indicate theappellants were kept in veil until T.I. parade was held. There is further19 APEAL-177-19+1.odtevidence to indicate the police officers to have played role in conducting theT.I. parade.42.The second T.I. parade was held about four months after theincident of dacoity. The Investigating Officer did not offer any explanation asregards delay in conducting the T.I. parade. There is also no evidence toindicate the appellants to have been kept in veil until before their T.I. paradewas held. The evidence also indicates that the police authorities had playedrole in holding this T.I. parade as well. They had accompanied P.W.1 andP.W.2 to the jail.43.So far as regards recovery of dagger at the instance of appellant –Pampya is concerned, the evidence indicates that a label bearing signatureof witness was affixed only on its handle. No procedure which is required tobe complied with by the police officers as regards seizure of any article, hasbeen followed. The seized articles were sent to the F.S.L. about one andhalf month after the incident. The seized clothes were very many in number.The panchas as regards seizure panchanama thereof stated the clotheswere already there in the custody of the police. The signatures were simplyobtained on the panchanamas in that regard.44.Admittedly, appellant – Pampya was arrested by the DacoityPrevention Squad. There is no evidence to indicate on the basis of whatmaterial his involvement in the dacoity in question was suspected. Accordingto prosecution, it is the C.D.Rs. of the cell phones allegedly used by the20 APEAL-177-19+1.odtappellants and others that gave lead in the investigation of crime. There is,however no evidence in that regard.45.Clause 16 of the Criminal Manual pertains to IdentificationParades. Relevant clauses of sub-clause 16(2) thereof are as under :-“(a)….(b)….(c)The Officer concerned with the case against the suspect, ifpresent, must not take part in conducting the parade.(d)The parade should be arranged by an officer who is not apolice officer.(e)After the commencement of the identification parade, everything in respect of it should take place in the presence andhearing of the suspect, including any instruction to thewitnesses attending it as to the procedure that is to beadopted.(f)….(g)….(h)The suspect should be placed among persons (if practicableeight or more) who are as far as possible of the same age,height, general appearance (including standard of dress andgrooming) and position in life. Two suspects of roughly ofsimilar appearance should be paraded with atleast twelveother persons. Where, however, the two suspects are notsimilar in appearance or where there are more than twosuspects, separate parades should be held using differentperson on each parade.(i)All members of a group of suspects more than two should notbe paraded together. There should be more parades thanone, each including not more than two. Two suspects ofobviously dissimilar appearance should not be included in thesame parade. Identification numbers should be concealed.”46.Apex Court in case of Subhash and Shiv Shankar Vs. State ofU.P., AIR 1987 SC 1222 has held as under :-21 APEAL-177-19+1.odt“(A) Penal Code (45 of 1860), S.300 – Evidence Act (1 of 1872),S.9 – Charge of murder – Test identification parade – Evidentiaryvalue – Parade held after delay of four months – Witnesses notgiving any description of accused either in FIR or in theirstatements during investigation – Conviction cannot be basedsolely on such identification – Accused has to be given benefit ofdoubt.”47.Apex Court in its recent judgment in case of Gireesan Nair &Ors. Vs. State of Kerala, DLD (Cri)–2022-1855 has held as under :-“A)TIP must be held without avoidable and unreasonable delayafter the arrest of the accused, this becomes necessary toeliminate the possibility of the accused being shown to thewitnesses before the test identification parade.B)Cases where witnesses have had ample opportunity to seethe accused before the identification parade is held, it mayadversely affect the trial.C)If witnesses had opportunity to see the accused before theTIP, be it in any form, i.e. physically, through photographs orvia media, evidence of the TIP is not admissible as valid pieceof evidence.D)TIP conducted in the presence of a police officer isinadmissible in light of S.162 Cr.P.C.E)It is for the prosecution to prove that a TIP was conducted in afair manner and that all necessary measures and precautionswere taken before conducting the TIP.F)When the TIP is vitiated, conviction cannot be upheld.”48.In case of Ramcharan Bhudiram Gupta Vs. State ofMaharashtra, 1995 Cri.L.J. 4048, this Court has held as under :-22 APEAL-177-19+1.odt“(A) Evidence Act (1 of 1872), S.9 – Identification evidence – Canbe relied upon only if chances of suspects being shown towitnesses before the test are totally absent”In view of aforesaid legal preposition and the fact that T.I. paradein question was held very late and the police to have played some role inholding the T.I. parade, the same loses its efficacy.49.The aforesaid analysis of the evidence in the light of thejudgments referred to hereinabove lead us to conclude the prosecution tohave failed to bring home the charge beyond reasonable doubt. Based onsuch kind of evidence, the trial Court ought not to have convicted theappellants. We are, therefore, not at one with the findings recorded by thetrial Court. Interference with the impugned order of conviction andconsequential sentence is, therefore, warranted.50.In the result, the appeals succeed. The appeals are allowed interms of following order :-ORDER(I)Both the criminal appeals are allowed.(II)Impugned judgment and order of conviction for the offencespunishable under Sections 396 and 397 of the Indian PenalCode and Sections 3(1)(i), 3(2), 3(3) and 3(4) theMaharashtra Control of Organized Crime Act, 1999 andconsequential sentences therefor imposed against theappellants dated 04th February, 2019 passed by SpecialJudge, MCOC Act, Aurangabad in Special Case No. 2 of2015, is hereby set aside.23 APEAL-177-19+1.odt(III)The appellants stand acquitted thereof.(IV)The appellants be released forthwith, if not required in anyother case.(V)Fine amount paid by the appellants, if any, be refunded tothem.( NEERAJ P. DHOTE, J. )( R.G. AVACHAT, J. ) SSD24