IMPORTANT POINT
When accused is not identified by any witness, he cannot be convicted.

JUDGMENT :

Pinaki Chandra Ghose, J.

1. These appeals, by special leave, have been directed against the judgment and order dated 15.9.2009 passed by the High Court of Judicature at Bombay in Criminal Appeal No.1133 of 2003 and Criminal Appeal No.1156 of 2003, whereby the High Court allowed the criminal appeals filed by the respondents herein and acquitted them.

2. The brief facts necessary to dispose of these appeals are that on 12.8.1995, at about 3.00 P.M., Rajendra Rajaram Gupta (deceased), who was a social worker belonging to a particular political party and had a shop in Mahim area of Mumbai, was sitting in Ganesh festival Pandal and was busy talking with one Rajaram Sarfare (PW6-injured eye-witness), who was the Contractor for decoration of the Ganesh festival Pandal. As per the prosecution story, when Rajendra Rajaram Gupta and PW-6 were talking to each other while sitting on chairs in the Pandal, two unknown persons entered the Pandal from Kapad Bazaar Road, opened fire on Rajendra Rajaram Gupta and pumped many bullets in his head, chest and various parts of his body at point blank range. Allegedly, the said two assailants were escorted by three other persons. The firing noise created commotion in the Pandal and while PW6 tried to run, he was also hit by one bullet and he fell down. The assailants managed to escape. The deceased Rajendra Rajaram Gupta was taken to Hinduja Hospital immediately, where he was declared dead on arrival. The FIR came to be immediately lodged at 4:15 P.M. by one eyewitness Rajesh Tanaji Akre (PW-5), who happened to have seen the incident from the first floor gallery of his residential building which was abutting to the said Pandal.

3. After investigation, charges were framed against 13 accused persons (Accused Nos.1 to 13) under Sections 302, 307, 120B read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) and Sections 25, 27, and 29 of the Arms Act, 1959. Accused Nos.2, 5, 6, 8, 10 and 13 had either died or were absconding during the trial. Hence, the trial proceeded against the remaining accused i.e. Accused Nos.1, 3, 4, 7, 9, 11 and 12.

4. The Trial Court by its judgment and order dated 23.07.2003 convicted Accused Nos.1, 3, 4, 9 and 12 for offences punishable under Sections 302 and 307 read with Section 120-B of the IPC. Accused Nos.1, 3, 4 and 12 were also convicted for the offence punishable under Section 27 of the Arms Act, whereas Accused No.9 was also convicted for the offence punishable under Section 25 of the Arms Act. Original Accused Nos.7 and 11 were acquitted of all the charges. The High Court vide the impugned judgment acquitted all the accused of all the charges by overturning the judgment of the Trial Court.

5. The State of Maharashtra has filed these appeals against the acquittal of Accused Nos.1, 3, 4, 9 and 12. Learned Additional Government Advocate appearing for the State of Maharashtra has inter alia reiterated that the judgment of the Trial Court is well reasoned and well considered. The learned counsel for the respondents have rebutted the submissions of the appellant by relying upon the judgment of the High Court pressing that it had gone deeper into the case that the prosecution could not bring home the charges levelled against the accused.

6. The Trial Court convicted the accused respondents on the basis of the testimonies of five eye-witnesses -Hemant Parshuram Akre (PW1), Ganesh (PW4), Rajesh Tanaji Akre (PW5), Rajaram Sarfare (PW6) and Kishor Maniklal Damaniya (PW7), out of which PW6 was the injured eye-witness. The Trial Court found their depositions to be corroborative of each other and also in tandem with the testimonies of PW18 and PW21, the Special Executive Magistrates, who conducted the Test Identification Parade of the accused. The Trial Court held that it was conclusively established by the Test Identification Parade and eye-witness testimonies that A1 and A12 had fired on the deceased. The recovery of the weapon along with the b