Important Point
Once the Designated Court has rejected the evidence of identification Parade, so far as they relate to the appellants, on the ground that there was strong possibility of the suspects being shown to the two eye witnesses at the police station, the appellants could not be convicted on the evidence of identification of these accused in the court by the said eye witnesses.

Headnote:TADA-Section 3(2)(i) r/w. Section 149 IPC and Sections 302/ 149 IPC-Trial of appellants under -Incident of 7.12.92 near J.J. Hospital when Head Constable murdered amongst others, by appellants-Incident seen by two constables-The Designated Court rejected the evidence of identification parade on the ground that suspects were possibly shown to eye witnesses at police station-But relied on the evidence of identification of the accused in the court by said eye witnesses and on that evidence recorded conviction of appellants-Appeal u/s. 19 of TADA to Supreme Court-Whether any value could be attached to the evidence of identity of accused by the witnesses in the Court when the accused were possibly shown to the witnesses before the I.P. in the Police Station? (No)-Result-Acquittal.
Held : The Designated Court has already recorded a finding that there was strong possibility that the suspects were shown to the witnesses. Under such circumstances, when the accused were already shown to the witnesses, their identification in the Court by the witnesses was meaningless. The statement of witnesses in the Court identifying the accused in the Court lost all its value and could not be made basis for recording conviction against the accused. The reliance of evidence of identification of the accused in the Court by P.W. 2 and P.W. 11 by the Designated Court, was an erroneous way of dealing with the evidence of identification of the accused in the Court by the two eye-witnesses and had caused failure of justice. Since conviction of the appellants have been recorded by the Designated Court on wholly unreliable evidence, the same deserves to be set aside. We accordingly set aside the judgment and order dated 14.10.1997 passed by the Additional Judge, Designated Court for Greater Bombay in T.S.C. No. 21 of 1994, convicting the appellants. The appellants are acquitted of charges. The appeal is allowed. The appellants are entitled to be released forthwith. We order accordingly. (Para 8)

Judgment

V.N. Khare, J.-This criminal appeal under Section 19 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as TADA), at the instance of two appellants herein, viz., Shaikh Umar Ahmed Shaikh and Mohd. Naim Mohd. Yasin Qureshi, is directed against the judgment and order dated 14.10.97 passed by the Designated Court, Greater Bombay, Maharashtra in TADA Special Case No. 21 of 1994, whereby the Designated Court has convicted the two appellants under Section 3(2)(i) of TADA read with Section 149 IPC and sentenced them to undergo life imprisonment. The appellants have also been convicted and sentenced to life imprisonment for the offence punishable under Sections 302/149 IPC and sentenced to pay a fine of Rs. 500/- each, in default to suffer R.I. for six months. Both the substantive sentences were directed to run concurrently.

2. Prosecution story in brief is, that on 7.12.92, the area where J.J. Hospital is situated was in the grip of communal riots as a result of which prohibitory orders were promulgated. In Ward No. 46 of the said hospital where undertrial of various criminal cases were usually kept for medical treatment, a police escort consisting of one Head Constable and three constables was being provided there from the police headquarters. Head Constable Chandrakant Pamji Khopkar (Buckle No. 17581) was in charge of the police escort of Ward No. 46 of the said hospital. Police constable S.P. Shinde (Buckle No. 27252), Police constable Rahul Hanumant Gaikwad (Buckle No. 414) and the third Police constable (Buckle No. 27231) were on duty at Ward No. 46 along with Head Constable Khopkar. At around 7.30 P.M., on the said day, when the next batch of police escort party arrived at the ward, Head Constable Khopkar handed over the charge to the next batch, and took out the uniform shirt and wore a red coloured shirt. So also Police constables Shinde and Gaikwad changed their uniforms. Thereafter Head Constable Khopkar and the other three constables left Ward No. 46 and climbed down the building of the J.J. Hospital. They came out from the premises of the hospital through gate No. 9 and reached at JJ Corner where they took turn and proceeded towards Byculla Railway Station. The third constable (Buckle No. 27231) went away from the J.J. Hospital premises. Head Constable Khopkar was walking ahead and from the distance of about 25 feet, constable Gaikward and constable Shinde were following him on their way to Byculla Railway Station in order to go to their respective houses. When Head Constable Khopkar came near the bus stop en route bus Nos. 6 and 7 in front of gate No. 12 of J.J. Hospital, constable Shinde and constable Gaikwad saw the mob of about 100 persons standing on the other side of the footpath of Sir J.J. Road. They further saw that 5 to 6 persons armed with choppers and knives suddenly crossed the road and came towards Head Constable, Khopkar. Thereafter all those persons started stabbing Khopkar by means of choppers and knives, thereby Khopkar sustained severe wounds and bleeding and thereafter he collapsed on the ground. At that stage, constables Gaikwad and Shinde got frightened and therefrom they immediately took turn and went to J.J. corner and gave information to the police about the said incident. On receiving the information the police party went to the place of occurrence and took injured Khopkar to J.J. Hospital where Head Constable Khopkar after examination was declared dead. Police constable Gaikwad reported the incident to the police constable on duty in the hospital who immediately reported the incident to Byculla Police Station. On 4.11.93, the police arrested the two appellants herein and accused Mohd. Bilal and Liyakat Rasool. On 7.11.93, the police requested Special Executive Magistrate for holding identification parade. The eye-witnesses-constables Gaikwad and Shinde alleged to have identified the accused persons. Thereafter, on 25.11.93 again, the police

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