JUDGMENT - CHITRE J.G., J.:---The appellant is hereby assailing the correctness, propriety and legality of the judgment and order of conviction and sentence passed by the Additional Sessions Judge, Greater Bombay in Sessions Case No. 203 of 1993 whereby the learned Judge had convicted the appellant for offences punishable under the provisions of section 387 of I.P.C. and has sentenced him to undergo R.I. for 3 years and to pay fine of Rs. 1000/-, in default to undergo further R.I. of 30 days.

2. The prosecution case in brief is that on 25-10-1991 at 3.10 p.m. complainant Kamlesh Shivji Majethia was sitting in his cabin in his office along with his staff members and at that time one Lakhansingh came with four unidentified persons whom Lakhansingh introduced as Pradeepbhai, etc. and told that they were members of one ill-reputed gang of under-world holding control over their Centre at Panvel. They demanded ransom of Rs. 3 lacs from them and at that time at the instructions of Pradeepbhai one Sunil whipped out a revolver and pointed towards Kamlesh Majethia and threatened him. He was told to keep the said amount ready on 28-10-91 at 3.00 p.m. Kamlesh Majethia lodged a report with the police by giving description of those persons. Investigation commenced so far as present crime is concerned. The appellant and some persons were arrested. On 21-4-1992 identification parade was held by P.W. Sitaram Jadhav, Special Executive Magistrate in the presence of the panch witnesses and in which victim Kamlesh, Ashok Shah, Raju Bendre identified the appellant as the person who was amongst those five persons who had threatened the complainant Kamlesh and demanded the ransom of Rs. 3 lacs. The cab in which those five persons sat after giving threat was also shown to P.W. Usha and John, the broker, for collecting evidence through them that it belonged to the appellant and it was sold by appellant through John to P.W. Usha. After completing the necessary investigation, the appellant with other associates was put to trial and after appreciating the evidence on record, the learned Additional Session Judge passed the order of conviction and sentence against the appellant.

3. None was present for the appellant to argue the case though the Mr. C.K. Talekar, Advocate, was appointed for defence of the appellant. This appeal pertains to the year 1997. The appellant has been convicted for R.I. of three years in the year 1996 and he has undergone that also. Therefore, without waiting for the Advocate, this appeal is being decided on merit.

4. Shri Saste, the prosecutor, has been heard for the prosecution. He justified the order of conviction and sentence by submitting that the appellant has been correctly picked up in the identification parade by complainant Kamlesh, Ashok Shah and Raju Bendre in the test identification parade held by Sitaram Jadhav, the Special Executive Magistrate. He submitted that all necessary precautions were taken for holding the said test identification parade. It is his submission that in addition to that, those witnesses have identified the appellant in the Court at the time of giving evidence on oath. This Court is not in agreement with Shri Saste for the respondents on this point. The identification parade has been held in Borivali Police Station building on the first floor in a room and when the said identification parade was held on first floor, the Inspector Incharge of that Police Station was sitting on ground floor and his office was near the stair case leading to first floor. By the side of that room, the identifying witnesses were sitting. The evidence on record shows that when the said identification parade was going on, the routine work of that Police Station was going on. The appellant was kept in a lock-up in the said building. Identifying witnesses were also called earlier to arrival of Sitaram Jadhav to the said building. Therefore, possibility of identifying witnesses seeing the appellant before the identifying parad

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