The main legal point established in the judgment is the unreliability of witness identification and the importance of a fair and proper Test Identification Parade (TIP) in corroborating witness testimony.

JUDGMENT

M.S. Sonak, J. - Heard learned counsel for the parties.

2. This appeal is directed against the judgment and order dated 17.05.2018 made by the learned Sessions Judge, Gondia in Sessions Trial No. 77/2012 convicting the appellant i.e. accused nos. 3 (A3) and accused no. 4 (A4) of the offenses punishable under Sections 143, 148, 120B, 302, 307 read with Sections 149 and 395 of the Indian Penal Code (IPC). By the same judgment and order, however, the appellants were acquitted of the offenses punishable under Sections 18, 20, and 23 of Unlawful Activities (Prevention) Act and under Sections 3 and 4 of read with Section 25 of the Arms Act and Section 5 of the Explosive Substance Act. Further by the same judgment and order, the accused nos. 1 and 2 were acquitted of all the charges leveled against them. This appeal is therefore instituted by the Appellants i.e. original accused nos. 3 (A3) and accused no. 4 (A4) and the same is restricted to that part of the judgment and order dated 17.05.2018 convicting and sentencing the Appellants inter alia, to rigorous imprisonment for life.

3. The case of the prosecution is that on 01.12.2011 at about 7.30 a.m. API Raut (PW11), who was on duty at A.O.P. Ganutola received a phone call from Fagnu Kallo (A1) that Naxalites had put up posters and banners at Mispiri Dhamditola. Upon verifying this information, API Raut (PW11) deputed five constables Ajay Bansod (PW1), Hasil Bhandarkar (PW2), Santosh Chute (PW3), Raju Nandeshwar (PW4), and Manoj Binzade (deceased), who came to the site and removed the posters and banners. These police constables went on two motorcycles to the spot and while returning i.e. at a distance of 1 k.m. from the spot where the posters and banners were put up, these five police constables were confronted by a mob of about 60/70 Naxalites, who rushed towards them, hurled abuses and even started firing on them. The five police constables left their motorcycles at the spot and started running in the opposite direction with the Naxalites chasing and firing at them.

4. The prosecution case is that some of the police constables reached the house of Fagnu Kallo (A1), knocked at his door by shouting [IMAGE] but, nobody opened the door. Then they managed to come to village Gujurbadga and with the help of cycles that they found with two local boys, the police constables reached village Kadikasa and thereafter to A.O.P. Ganutola through the forest area. Here the constables found PC Bansod (PW1) who told them that PC Binzade (deceased) was fired upon and killed by the Naxalites. Based on all this, P.C. Bansod (PW1) lodged a report (Exh.31) at Chichgrah Police Station. This was reduced in writing by PI Deshmukh (PW15) and lodged as First Information Report (Exh. 32).

5. In the FIR, only Fagnu Kallo (A1) was named as accused along with 70/80 unidentified Naxalites. It is the case of the prosecution that involvement of the accused nos. 2, 3, and 4 was revealed only as the investigation progressed and ultimately a charge sheet was filed against all the four accused persons alleging the commission of several offenses under the IPC, Unlawful Activities (Prevention) Act, Arms Act, and Explosive Substances Act as detailed above.

6. The record indicates that though the date of the incident was 01.12.2011, the appellant i.e. Budru @ Dinesh @ Krishna S/o. Rajwanshi Siram (A3) and Dinesh @ Arjun @ Santaram S/o. Maharu Madavi (A4) were arrested only on 02.12.2012 i.e. after a year. The charges were framed against the appellants on 09.08.2016 i.e. after almost 5 years. The appellants denied their guilt and claimed to be tried. The prosecution examined, in all, 18 witnesses, and the appellants were questioned under Section 313 of the Code of Criminal Procedure to which they responded that they were falsely implicated in the matter. Despite the opportunity, no defense evidence was led by the appellants. Ultimately, the learned Sessions Judge, by the impugned judgment and order, has convicted the app