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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
M.G. GAIKWAD, J.
Dattatrya s/o Ankush Sasane - APPELLANT
VERSUS
State of Maharashtra - RESPONDENT
CRIMINAL APPEAL NO. 487 OF 2006
Decided on : 8th December, 2006
Evidence Act, 1872 - Section 9 - Test Identification Parade - Identification of accused in Court - A weak piece of evidence - Evidence of T.I. Parade - Not substantive evidence - Test Identification, a safe rule of prudence - Look for corroboration of sworn testimony of witnesses in Court - As to identity of accused strangers to them. - The identification of the accused in Court is a weak piece of evidence, but as observed by the Apex Court in the case of State of H.P. v. Lekh Raj and another, reported in (2000) 1 SCC 247 : 2000 All MR (Cri) 266 (SC) evidence of test identification parade is not substantive evidence. Test identification is considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them.
Penal Code, 1860 - Sections 341, 395 and 397 - Criminal Procedure Code, 1973, Section 374 - Arms Act, 1959, Section 25 - Appeal against conviction - Offence of dacoity - Accused committed dacoity with cash-box containing Rs. 10 lacs - Arrested - Cash-box seized from accused - Trial Court convicted accused - Challenged - Evidence of panch witness corroborated by recovery of stolen goods and identification parade - Conviction upheld - However possession of weapon and assault doubtful - Conviction under Arms Act set aside. - It is clear that the witnesses had ample opportunity to see their faces. Under these circumstances, their evidence about the identity of the accused cannot be doubted and when the trial Court accepted that evidence, this appellate Court cannot disturb that finding. This can be said to be an exceptional case wherein the evidence of these two witnesses about identity of assailants in the Court needs to be accepted even in absence of test identification parade. That evidence is also corroborated by the circumstance of recovery of stolen property-cash from the appellant which recovery is proved by the evidence of an independent panch witness PW 16 Bhaskar Waive and by the evidence of PW 24 Investigating Officer Pawar. In addition to this, there is also evidence about identity in the test identification parade. Thus, the order of conviction recorded against this appellant/ accused for the offence punishable under Sections 395, 297 and 341 of IPC, by the Additional Sessions Judge relying upon the above evidence cannot b e said to be illegal nor it suffers from any infirmity.
Positively it cannot be said that this appellant was having weapon sword with him at the time of alleged assault and it is doubtful, out of five accused who was possessing weapon sword and caused injuries to these witnesses. Hence, the order of conviction for the offence under Sections 3 and 4 read with Section 25 of the Arms Act as against this appellant/ accused needs to be set aside by partly allowing this appeal.
1. Heard learned counsel, appearing for the respective parties.
2. By preferring this appeal, the appellant (original accused No. 4 in Sessions Case No. 26/2003) challenged his conviction for the offence punishable under section 395 of IPC and sentence to suffer rigorous imprisonment for seven years and fine of Rs. 5000/-, in default to suffer simple imprisonment for four months and also conviction under section 397 of IPC and sentence to suffer rigorous imprisonment for seven years and fine of Rs. 5000/- as well as conviction and sentence for the offence punishable under section 341 of IPC and conviction and sentence for the offence under section 3 and 4 read with Section 25 of the Arms Act, 1959, recorded by the learned Additional Sessions Judge, Sangamner. It may be mentioned here that the original accused No. 1 had preferred Criminal Appeal No. 571/2004 before this court, challenging his conviction and sentence in Sessions Case No. 26/2003 and said appeal was partly allowed maintaining the conviction for the offence under section 341, 395 and 397 of IPC, but his appeal was allowed by setting aside the conviction and sentence for the offence punishable under section 3 and 4 read with Section 25 of the Arms Act, 1959 by judgement dated 07-04-2005.
3. The facts relevant for the decision of this appeal, in brief, are as under. The incident in question was alleged to have taken place on 19-06-2003 at about 11.45 a.m. on Dhandarphal (Khurd) road near brick kiln situated at the bank of Pravara river. Complainant Dhondiba Rambhau Bhojane and his colleague Bhagwan Namdeo Kanwade were proceeding on a motor cycle No. MH-17/B-7794. They were carrying with them a cash-box containing cash of rupees ten lacs. They had collected this cash from the Marketyard Branch of A.D.C.C. Bank, Sangamner. The said amount of rupees ten lacs was given in currency notes in the following denominations.
(1) Rs. 5 Lacs - In the form of currency notes of Rs. 500/-.
(2) Rs. 3 Lacs - In the form of currency notes of Rs. 100/-.
(3) Rs.50,000/- - In the form of currency notes of Rs. 50/-.
(4) Rs.1.5 Lacs - In the form of currency notes of Rs. 10/-. At the relevant time, Clerk Bhagwan Kanwade was riding the said motorcycle and complainant Dhondiba Bhojane was sitting on the pillion seat. When they reached near brick kiln, complainant Dhondiba Bhojane noticed that one blue colour UNO car was coming in high speed from their back side. He, therefore, asked Bhagwan Kanwade to take the motorcycle by the side of the road. However, the said car over-took their motorcycle and halted just in front of it. As the car had come abruptly, the motorcyclist Kanwade lost his balance and the motorcycle fell on the ground. That time, cash box was in the hands of complainant Bhojane. As soon as the car was stopped, five persons got down from the said car and they threw chilly powder towards the complainant Bhojane and Kanwade. However, as Kanwade had put his sun glasses, the chilly powder did not cause any damage to him. Immediately thereafter, two persons who had got down from the car started assaulting complainant Bhojane and Kanawde. One person of slim appearance and having black complexion assaulted Bhojane on his back with an iron bar and the other person who was wearing blue shirt assaulted Kanwade by meamsn of a weapon like a small sword. As a result of the same, Kanwade sustained bleeding injury. One person out of them who was having beard, snatched the cash box from the hands of Dhondiba Bhojane and then all those dacoits fled away by the same car towards Nimgaon. Thereafter, both complainant Bhojane and Clerk Kanwade went back to A.D.C.C. Bank, Branch Dhandarphal (Khurd). They informed the incident to the Branch Manager who then intimated the said incident to the police. Injured complainant Bhojane and Kanwade were sent to Sangamner for medical treatment. In the meantime, a message was given to the Branch Manager of A.D.C.C. Bank, branch at Nimgaon about the inc
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