JUDGMENT
J.G. Chitre, J.
1. The appellant is hereby assailing the correctness, propriety and legality of the judgment and order of conviction and sentence passed by the Additional Sessions Judge, Greater Bombay in Sessions Case No. 203 of 1993 whereby the learned Judge had convicted the appellant for offences punishable under the provisions of Section 387 of IPC and has sentenced him to undergo RI for 3 years and to pay fine of Rs. 1000/-, in default to undergo further RI of 30 days.
2. The prosecution case in brief is that on 25.10.1991 at 3.10 p.m. complainant Kamlesh Shivaji Majethia was sitting in his cabin in his office along with his staff member sand at that time on Lakhansingh came with four unidentified persons whom Lakhansingh introduced as Pradeepbhai, etc. and told that they were members of one ill-reputed gang of under-world holding control over their Centre at Panvel. They demanded ransom of Rs. 3 lacs from them and at that time at the instructions of Pradeepbhai one Sunil whipped out a revolver and pointed towards Kamlesh Majethia and threatened him. He was told to keep the said amount ready on 28.10.91 at 3.00 p.m. Kamlesh Majethia lodged a report with the police by giving description of those persons. investigation commenced so far as present crime is concerned. The appellant and some persons were arrested. On 21.4.1992 identification parade was held by PW Sitaram Jadhav, Special Executive Magistrate in the presence of the panch witnesses and in which victim Kamlesh, Ashok Shah, Raju Bendre identified the appellant as the person who was amongst those five persons who had threatened the complainant Kamlesh and demanded the ransom of Rs. 3 lacs. The cab in which those five persons sat after giving threat was also shown to PW Usha and John, the broker, for collecting evidence through them that it belonged to the appellant and it was sold by appellant through John to PW Usha. After completing the necessary investigation, the appellant with other associates was put to trial and after appreciating the evidence on record, the learned Additional Sessions Judge passed the order of conviction and sentence against the appellant.
3. None was present for the appellant to argue the case though one Mr. C.K. Talekar, Advocate, was appointed for defence of the appellant. This appeal pertains to the year 1997. The appellant has been convicted for R.I. of three years in the year 1996 and he has undergone that also. Therefore, without waiting for the Advocate, this appeal is being decided on merit.
4. Shri Saste, the prosecutor, has been heard for the prosecution. he justified the order of conviction and sentence by submitting that the appellant has been correctly picked up in the identification parade by complainant Kamlesh, Ashok Shah and Raju Bendre in the test identification parade held by Sitaram Jadhav, the Special Executive Magistrate. He submitted that all necessary precautions were taken for holding the said test identification parade. It is his submission that in addition to that, those witnesses have identified the appellant in the Court at the time of giving evidence on oath. This Court is not in agreement with Shri Saste for the Respondents on this point. The identification parade has been held in Borivali Police Station building on the first floor in a room and when the said identification parade was held on first floor, the Inspector Incharge of that police station was sitting on ground floor and his office as near the stair case leading to first floor. By the said of that room, the identifying witnesses were sitting. The evidence on record shows that when the said identification parade was going on, the routine work of that police station was going on. The appellant was kept in a lock-up in the said building. Identifying witnesses were also called earlier to arrival of Sitaram Jadhav to the said building. Therefore, possibility of identifying witnesses seeing the appellant before the identifying parade cannot be ruled out. This Court has expressed its opinion time and again that identification parades should not be held in police station buildings and separate rooms should be reserved for holding identification parades in separate buildings from the police station. But in that context nothing has been so done.
5. The identification parade should be held in such atmosphere which should not be influenced by the presence of police or their influence. All necessary precautions should be taken to see that the identifying witnesses should not see the suspect to be identified before holding of the identification parade. Sufficient number of dummies should be mixed and each accused should be put to identification parade separately. Such precautions have not been taken in this case and, therefore, identification parade and evidence about that has to be discarded.
6. In the matter of Kanan and Ors. v. State of Kerala, , the Supreme Court has held that if the identifying witnesses are identifying the suspect in the Court after long time gap and such persons happen to be unknown to the witnesses, such evidence loses its importance if not corroborated by the evidence of identification parade held legally. In this case witnesses namely Kamlesh, Ashok Shah and Raju Bendre identified the present appellant in the Court after long time gap. The appellant was definitely a stranger to them and the evidence of identification parade held by Sitaram Jadhav has been discarded as it has not been collected by following the necessary safeguards indicated by the law and rules made in that context. Thus, the prosecution has failed to establish that appellant was one of those persons who had come to PW Kamlesh Majithia for giving him the threats at the point of revolver and demanding ransom of Rs. 3 lacs.
7. So far as the identification of the car used by those culprits happens to be concerned, the prosecution evidence is totally discardable because the said test identification has been held by police. In view of the observations made by the Supreme Court in Ramkishan Mithanlal Sharma and Ors. v. State of Bombay, wherein the Supreme Court has held that if the identification parade is held by the police and the witness make statement in it even by nods it amounts to a statement of a witness recorded in view of Section 161 of the code of Criminal Procedure 1973 and on account of that it is not admissible in evidence.
8. Thus, nothing remains for the prosecution to prove its case against the appellant.
9. The learned trial Judge has committed an obvious error of not appreciating the evidence properly keeping in view the relevant provisions of law and, therefore, he has landed in error of recording a conviction against the appellant in view of provisions of Section 387 of IPC and resultant sentence. The said order of conviction and sentence will have to be set aside by allowing this appeal.
10. Thus, this appeal stands allowed. The order of conviction and sentence passed against the appellant by the learned trial Judge stands set aside and he stands acquitted. He be released if not required for any enquiry, proceeding, investigation or trial. No interference in other order which has been passed by the trial Court in respect of the disposal of the property.
11. Parties to act on an ordinary copy of this judgment duly authenticated by the Private Secretary of this Court.