State of Maharashtra vs Rajesh alias Kaka Madanlal Soni and others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1997 Supreme(Bom) 499

IN THE HIGH COURT OF BOMBAY
vishnu Sahai and T.K. Chandrashekharadas, JJ.
The State of Maharashtra ....Appellant.
Versus
Rajesh alias Kaka Madanlal Soni others ....Respondents.
Confirmation Case No. 3 of 1996, with Criminal Appeal No. 683 of 1996, decided on 23-9-1997.
Advocates appeared :
V.T. Tulpule with Rajiv Patil, for the appellant in Confirmation Case No. 3 of 1996 for respondent in Criminal Appeal No. 683 of 1996.
Sirish Gupte with Pradeep Mahajan, P.D. Naik and M. K. Kochrekar, for the respondents in Confirmation Case No. 3 of 1996 for appellants in Criminal Appeal No. 683 of 1996.

Headnote:Section 354-Conviction and awarding death sentence-Death sentence should be restricted to "rarest of rare cases"-No reasons given-Confirmation of death sentence rejected.
       Section 366-Penal Code, 1860, Sections 149 and 302-Offence of murder-Conviction-Identification parade-Guidelines-Must be fair and in accordance with Criminal Manual-Identifying witnesses must not have any look of accused prior to identification.-In the instant case the only evidence against the appellant is that of identification. Court wish to emphasise that the condition precedent for accepting the evidence of identification is, it should be fair and beyond reproach. To secure that it has to be ensured that prior to the test identification the suspect was not shown to the identifying witnesses and the identification was held in the manner stipulated by the Criminal Manual issued by the High Court of Judicature Appellate Side, Bombay In the instant case court find that the identification was not held in accordance with provisions of the Criminal Manual. In fact they were observed more in breach and there is a very high probability of appellants Po:, Ah and Ab, Ve of being shown to some of the witnesses prior to their test identification.
       It is well settled that the plea of shown need not be established to the hit the accused persons. They discharge the burden if they can show from circumstances that there was reasonable possibility of their being shown to the witnesses prior to test identification.
       Section 366-Penal Code, 1860, Sections 149 and 302-Veracity of identification parade-Delay in holding parade-Both accused put up for identification in two different parades with gap of two days-Identification not fair.-Court now come to the identification parade, which as observed earlier was held after a suspicious gap of two days, i.e. 7.12.83. Court has used the word suspicious because the prosecution could not spell out any reason as to why four witnesses, namely B (PW 1), S (PW 3), P (PW 6) and constable C (not examined) were not sent to the parade dated 5.12.1993.
       The only reason compatible with common sense and there is no rule that sense should be put in cold storage, for not sending them to the parade dated 5.12.93 that the two suspects sought to be identified were not shown to them prior to 5.12.1993, courts hunch is between 5.12.1993 and prior to the holding of the parade on 7.12.1993, thereof these witnesses namely B, S and P were shown the suspects and only thereafter the identification was conducted. This alone would have been sufficient to render the identification parade dated 7.1293 valueless.
       Section 9-Condition for acceptance of test identification-Fair identification-Identifying witness not seen respect-Question by Magistrate to be asked in mandatory way.-The condition precedent for accepting the evidence of identification is it should be fair and beyond approach to secure that it has to be ensured that prior to the test identification that suspect was not shown to the identity witness and identification was held in manner stipulated by the criminal manual issued by the High Court. Here the identification was not held in accordance with provisions of criminal manual in fact they were observed more in breach, there is very high probability of accused being shown to some of witness prior to their test identification.
       Section 9-Identification parade-Identification to be held in the manner stipulated by criminal manual. Witnesses prior to their test identification-Delay in identification parade of 20 years not to be relied upon-Parade held in police station Court took it with needle of suspicion.

JUDGMENT - VISHNU SAHAI, J.:---Since these two connected matters arise out of a common incident and impugned judgment we are disposing them off by one judgment.

2.Vide judgment and order dated 25-10-1996 passed in Sessions Case Nos. 1238/92 and 609/94 the Additional Sessions Judge, Greater Bombay, convicted and sentenced 1. Rajesh alias Kaka Madanlal Soni, 2. Arif Rafique Ahmed Shaikh, and 3. Abu Armogam Velu Nadar, in the manner stated hereinafter :

(1) Under section 302 read with 149 I.P.C., 302 read with 34 I.P.C. and 27(3) of the Arms Act to death;

(2) Under section 307 read with 149 I.P.C. and 307 read with 34 I.P.C. to R.I. for life;

(3) Under section 144 I.P.C. to R.I. for two years;

(4) Under section 148 I.P.C. to R.I. for 3 years; and

(5) Under section 25(1)(a) of the Arms Act read with 149 I.P.C. to R.I. for 7 years

and to pay a, fine of Rs. 5000/- in default to suffer R.I. for 6 months.

The substantive sentences of imprisonment were ordered to run concurrently.

3.Confirmation Case No. 3 of 1996 arises out of the reference made by the trial Judge, under section 366 of the Code of Criminal Procedure; for confirmation of the death sentence of the said persons.

Criminal Appeal No. 683 of 1996 has been preferred by the said persons against their convictions and sentences.

4. The prosecution case in short is as under :

On 30-7-1991 at about 10.30 a.m. Police Constable Bhimrao Patil P.W. 1 along with his friend Prasad Belosey P.W. 6 left his house situated in Ghatkopar Police Lines, to meet his wife who at the said time was staying with her parents in Airoli, District Thane. At about 1.45 p.m. they reached Ghatkopar Railway Station and went to the sweet meat shop of one Mamu, which was at the said railway station and was situated opposite Welcome Hotel, on Jayantilal Vaishnav Marg. They heard the sound of bursting of crackers coming from the direction of the hotel and saw people running helter skelter. They also noticed one person lying on the road in front of the Welcome Hotel and 6 unknown persons with revolvers firing on him. They started running. At that juncture one of them fired at Bhimrao Patil and the shot struck him on his right thigh. Apart from Bhimrao Patil P.W. 1, Prasad Belosey P.W. 6, this incident was seen by constable Pandurang Bankar P.W. 2, Sandip Surve P.W. 3, Ramesh Babu Sutar P.W. 4 and constable Chougule (not examined).

All these witnesses are said to have recognized the assailants by their faces.

5.Prasad Belosey P.W. 6 took Bhimrao Patil P.W. 1, in an autorickshaw to Rajawadi Hospital where he was medically examined at 2.35 p.m. by Dr. Akshay Bhagat P.W. 9. Dr. Bhagat found that Bhimrao Patil had sustained one entry wound on anteromedial aspect of right thigh in the lower third region, 1 cm. in diameter with surrounding friction abrasion. He felt the bullet in posteromedial aspect of right thigh at the junction of middle third and lower third portion. For retrieving the bullet he operated upon Bhimrao Patil and extracted the bullet from the right thigh.

6. In the meantime Constable Pandurang Bankar P.W. 2 took the person who was fired upon by the six unknown persons with revolvers and was lying in a pool of blood on the ground, in a taxi, to Rajawadi Hospital. On examination the doctor found him to be dead. The evidence of Pandurang Bankar P.W. 2 is that from the identity card found in the pocket of the deceased he came to know that he was a Professor in Jhunjhunwala College.

7.The evidence of P.S.I. Shivajirao Bagal P.W. 7 shows that at about 1.45 p.m. on 30-7-1991, while he was or station house duty at Ghatkopar Police Station he received a wireless message that some incident had taken place near Welcome Hotel. Immediately thereafter a telephonic message, from an unknown person was received at the police station that there was firing on one person near New Welcome Hotel, Ghatkopar. Accordingly he made a station diary entry and along with Senior Inspector Ashtekar left for the place of the incident. Ther

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1997 Supreme(Bom) 499

Cases Referred (1)