The reliability of eye-witness testimonies and the test identification parade in establishing the guilt of the accused.

JUDGMENT

N.R. Borkar, J. - Both these appeals are fled against one and same judgment and order dated 12.05.2016 passed by the Sessions Judge for Greater Bombay in Sessions Case No. 436 of 2011 Both these appeals were therefore, heard together and are being disposed of by this common judgment.

2. The appellant in Criminal Appeal No. 611 of 2016 and the appellant in Criminal Appeal No. 612 of 2016 were accused Nos.3 and 4 respectively before the trial court. The appellants with three more co-accused were tried for the offences punishable under section 302 read with 120-B of the Indian Penal Code (for short IPC), section 3 read with 25 of the Arms Act and section 37 read with 135 of the Bombay Police Act.

3. By the impugned judgment and order the trial court convicted both the appellants for the offence punishable under section 302 read with 34 of the IPC and sentenced them to suffer imprisonment for life and to pay fine of Rs.50,000/- each, in default, to suffer further Rigorous Imprisonment (R.I.) for six months. The appellants have been further convicted for the offences punishable under section 3 read with 25(1-B) of the Arms Act and section 37 read with 135 of the Bombay Police Act and sentenced to suffer R.I. for one year and to pay fine of Rs.10,000/- each, in default to suffer further R.I. for one month. The trial court, however, acquitted the original accused Nos.1, 2 and 5 of all the charges.

4. The deceased Ajit Yerunkar was bodyguard of PW-28 Manish Dholakia. PW 28 was a Builder and his office was at Sharda Chambers, New Marine Lines, Mumbai. PW-1 Jayshree Kardak was working in the office of PW-28 as Receptionist. PW-2 Babu Sonawane was another body guard of PW-28. PW-3 Hasmukh Khetalpar was working as Manager in the office of PW-28.

5. The incident took place on 8.2.2011. It is alleged that on the day of incident at about 3.30 to 3.45 p.m., accused Nos.3 and 4 came to the office of PW-28. They made enquiry with PW-1 as to whether PW-28 has come in the office or not. PW-1 asked their names and from where they had come. Accused Nos.3 and 4 told her that they had come from Pune to meet PW-28. She then asked them to sit and called PW-3 Hasmukh, and told him to inform PW-28 that two persons had come to meet him from Pune. PW-3 then went inside the chamber of PW-28 to inform him accordingly.

6. It is alleged that while the accused Nos.3 and 4 were standing at the office reception, PW-1 saw a pistol in the back pant pocket of accused No.3. She thus started shouting. On hearing shouts of PW-1, other employees came out and thus the accused Nos.3 and 4 started running outside. The deceased Ajit Yerunkar and PW-2 Babu followed them to apprehend them. It is alleged that while the deceased Ajit and PW-3 Babu were following accused Nos.3 and 4 at that juncture, accused No.3 fired from his pistol at the deceased. The said bullet, however, did not hit the deceased. It is alleged that accused No.3 again fired at the deceased and this time the bullet hit the right side chest of the deceased due to which, the deceased collapsed. It is alleged that accused Nos.3 and 4 could not be apprehended and they succeeded in running away from the office of PW-28. The deceased was taken to the Bombay Hospital. However, he died on the same day.

7. The report in relation to the incident was lodged and crime was registered. During the course of investigation, it was revealed that a conspiracy was hatched to eliminate PW-28 and accused Nos.3 and 4 were hired to kill PW-28. On completion of investigation, the charge-sheet was fled against in all five accused for the offences punishable under section 302 read with 120-B of the IPC, section 3 read with 25(1-B) of the Arms Act and section 37 read with 135 of Bombay Police Act.

8. All the accused were charged and tried for the above stated offences. The trial court, as stated earlier, by the impugned judgement and order convicted the accused Nos.3 and 4 for the offence punishable under section 302 read with 34 of t