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2015 Supreme(Bom) 338
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SMT. V. K. TAHILRAMANI & SMT. I. K. JAIN, JJ.
The State of Maharashtra – Appellant
Vs.
Mahendrakumar Shadiram Sood – Respondent
Criminal Appeal No.393 of 1993.
Decided On : 15th January, 2015.
Advocate Appeared:
Smt. A.S. PAI. A.P.P. for the Appellant-State.
None for the Respondent.
Headnote:[INDIAN] PENAL CODE, 1860 - Sections 392 and 397 Evidence Act, 1872, Section 9 Acquittal from charge of robbery. Where identification of accused by complainant in TIP was not reliable as Criminal Manual was not followed therefore acquittal of accused not improper. In the present case, it can also be said that there is a very high probability of the respondent being shown to complainant prior to the test identification parade. Looking to the fact that complainant has admitted that there was no sufficient light at the place. Where the robbery actually took place and the fact that the attack was sudden and accused persons dispersed from the spot quickly, in the facts and circumstances of this case, that complainant did not have sufficient opportunity to observe the respondent-accused. Moreover, as stated earlier, the parade was held in the police station and not in jail. In this view of the matter, Court found it difficult to rely on the identification of the respondent-accused by complainant in the identification parade.
The evidence relating to recovery of articles also suffers from material discrepancies which cast doubt upon the veracity of the relevant evidence. The complainant has stated that his chain contained a locket, however, the chain recovered at the instance of the respondent did not have locket. Moreover, as far as the finger ring (Article 3) is concerned, it has a stone of dark orange colour, however in the FIR complainant has stated that ring had a blue colour stone. Thus, the evidence regarding recovery of ornaments, does not inspire confidence.
On going through the evidence, the view of acquittal taken by the Judge is a reasonable and possible view.
SMT. V. K. TAHILRAMANI, J. :-
The Appellant-State of Maharashtra has preferred this appeal against the judgment and order dated 3.4.1993 passed by the learned Additional Sessions Judge, Greater Bombay in Sessions Case No. 635 of 1990. By the said judgment and order, the learned Judge acquitted the respondent-original accused under Section 392 read with Section 397 of IPC.
2. The prosecution case, briefly stated, is as under:
P.W.1 Shrichand was residing at Malad (W), Mumbai. On 14.2.1990 he went for morning walk to the garden of Sunder Nagar Colony situated in Malad, Mumbai. He went for a walk at about 5.45 am. to 6.00 am. At that time, he was wearing ornaments on his person like chain with a locket, finger ring etc. All these articles were of gold. When he came near Shankar Mandir which is at the corner, he was surrounded by four unknown persons. It was a sudden attack. One of them threatened him and asked for all the valuables from him. Two of them were having knives in their hands. He delivered the valuables to the person who threatened him. He was frightened at that time. After commission of robbery, the robbers immediately dispersed from the scene of offence. Shrichand then lodged F.I.R. (Exh.12). Thereafter, investigation commenced. The respondent along with two persons were arrested. Fourth person could not be traced. After completion of investigation, charge sheet came to be filed.
3. Charge came to be framed only against the respondent under Section 392 read with Section 397 of IPC because the other two accused were discharged. The respondent pleaded not guilty to the said charge and claimed to be tried. The defence of the respondent is that of total denial and false implication. After going through the evidence adduced in the present case, the learned Judge acquitted the respondent, hence, this appeal.
4. We have heard the learned A.P.P. for the Appellant- State of Maharashtra. After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned A.P.P. for the State, the judgment delivered by the learned Judge and the evidence on record, for the below mentioned reasons, we are of the opinion that there is no merit in the appeal.
5. The conviction of the respondent is mainly based on the evidence of P.W. 1 Shrichand who is the first informant in the present case. Shrichand has stated that on 14.2.1990 he went for morning walk in the garden of Sunder Nagar Colony situated in Malad, Mumbai. He went for a walk at about 5.45 a.m. to 6.00 a.m. At that time, he was wearing ornaments on his person like chain with a locket, finger ring etc. All these articles were of gold. When he came near Shankar Mandir which is at the corner, he was surrounded by four unknown persons. It was a sudden attack. One of them threatened him and asked for all the valuables from him. Two of them were having knives in their hands. He delivered the valuables to the person who threatened him. He was frightened at that time. After commission of robbery, the robbers immediately dispersed from the scene of offence. Shrichand then lodged F.I.R. (Exh.12). Thereafter, on 28.4.1990 he was called for test identification parade at D.N. Nagar Police Station. In the said parade, he identified the respondent as the person who committed robbery. It is pertinent to note that Shrichand has not stated anywhere that the respondent was also holding a weapon at the time of the incident. Hence, in such case, section 397 of I PC could not be attracted.
6. As far as the identification or the respondent by Shrichand is concerned, Shrichand in his cross-examination has admitted that there was no sufficient light at the place where the actual robbery took place. It is also pertinent to note that the incident took place early in the morning of February at 5.45 a.m. to 6.00 a.m. The respondent was unknown to Shrichand. Hence, holding or test identification parade was necessary. No doubt, the parade was held on 28.4.1990, how
