IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 40 of 2008
1.Shaikh Umair s/o. Shaikh Ibrahim
2.Javed Khan S/o. Abdulla Khan
.. Appellant/s
Versus
The State of Maharashtra
.. Respondent/s
Mr. S.G.Laddha , Advocate for the appellant,
Mr. K.G. Patil, APP for respondent.
CORAM : B.R. GAVAI,J.
DATE : 30th August, 2008.
—
ORAL JUDGMENT :
1. By
way of present appeal, the
appellants/original accused Nos. 4 and 5, challenge
the judgment and order passed by the learned Adhoc
Additional Sessions Judge, Aurangabad dated 4th
February, 2008, in Sessinos Case No. 118/2006,
thereby convicting them for the offence punishable
under Section 376(2)(g) and 354 of the Indian Penal
Code.
2. The prosecution case, as could be
briefly stated, is as under :-
. There is a place called "Surai Garden" or
"Salim Ali Sarowar Lake" at Aurangbad. At one end of
this lake, there is an elevated portion of land and
thereon, a watch-tower is constructed. The platform
is made up of wooden planks. The said structure is
::: Downloaded on - 09/06/2013 13:48:43 :::
( 2 )
commonly known as "Umbrella". This elevated portion
of the land is connected by a naturally elevated strip
of land, which divides the lake into two portions.
The garden has two gates. One is main gate just by
the side of the road. Another is a small gate, which
opens directly on the road.
. It is the prosecution case that the
complainant Salma Begum, who, at the relevant time was
studying in 8th standard was in love with PW-2 Ubed
Chaus, who was working in a garage, at some distance
from her house. It is the prosecution case that on
24th
Ubed
March, 2006 at about 6.00 p.m., Salma Begum
Chaus had gone for a stroll to the said
and
garden.
After strolling in the garden, both of them were
sitting below a tree in the garden and were
chit-chatting. They were there till 7.30 p.m.
Thereafter, PW-2 Ubed told the complainant that he
would being ice-cream for them and accordingly, he
went outside for getting the ice-cream. According to
the complainant, when she was sitting below the tree,
7 boys came near her. Out of them 3 boys forcibly
lifted her and took her near the umbrella in the
garden. It is alleged that they forcibly removed her
clothes and made her naked. One boy, out of the 3
boys removed his pant and made forcible intercourse
with her. Thereafter, one another boy amongst them
also had a forcible intercourse with her. The third
boy had pressed her breast. She tried to make hue and
::: Downloaded on – 09/06/2013 13:48:43 :::
( 3 )
cry. However, they gagged her month. Thereafter, she
wore her clothes.
. It is the further prosecution case that while
she was coming down, those 3 boys also followed her.
While coming down, she saw the remaining 4 boys
beating Ubed Chaus. They also snatched the amount of
Rs. 90/- from Ubed Chaus. They were frightened and
trying to run away when they came outside the garden.
The complainant was weeping. Some police personnel
came near her alongwith some other persons. They
asked her as to why she was weeping. She narrated
them
about
the
to
incident. At that time, those 7 boys
leave the said garden. The police
were
chased
them and caught hold of 2 boys out of those 7 boys.
The said two boys were brought in front of her. She
recognized one of those two boys to be one, who had
committed intercourse and another one who had pressed
her breast.
. The person who was alleged to have had
forcible intercourse with her was identified as Akil
i.e. Accused No.2 and the other person who had
pressed her breast was identified as Firoz, being
accused No.3.The police inquired about the remaining 5
boys. The names of said 5 boys were disclosed to the
police. Thereafter, the police took the complainant,
PW-2 Ubed and those two boys at the City Chock Police
Station, Aurangabad. Again, an inquiry was made
::: Downloaded on – 09/06/2013 13:48:43 :::
( 4 )
regarding the 5 missing boys at the city chowk police
station.
. On the next day, Panchanama was drawn. The
medical examination of the complainant was done. On
the next day, 3 more boys were brought to the police
station, Aurangabad. The complainant identified those
3 boys, who had beaten Ubed. Subsequently, after 3/4
days, one more boy was shown by the police to the
complainant and she identified him to be the one who
had committed forcible intercourse with her. He was
identified to be Kaisar, the accused No.1.
3. It
can thus be seen that in all there were 7
accused. After the completion of investigation,
charge sheet came to be filed against the 5 accused,
since 2 accused were found to be juvenile. Since the
case was exclusively triable by the Court of Sessions,
the same was committed to the court of sessions.
Charges were framed, to which the accused pleaded not
guilty and claimed to be tried. . Since it was also
the case of the prosecution that the accused No.4 had
stolen an amount of Rs.90/- a charge under Section 379
was also framed.
4. At the conclusion of the trial the accused
Nos. 1 to 3 were convicted for the offence punishable
under Section 376(2)(g) of the I.P.C. and they were
sentenced to suffer R.I. for 10 years and to pay a
::: Downloaded on – 09/06/2013 13:48:43 :::
( 5 )
fine of Rs. 7,000/- each, in default to suffer R.I.
for 2 years. However, accused No. 3 Firoz was held
guilty of the offence under section 354 and he was
sentenced to suffer R.I. for 1 year and to pay a fine
of Rs.3,000/- in default to suffer R.I. for 3 months.
The accused No.4 Umair was acquitted of the offence
under section 379 of the IPC. However, he alongwith
accused No.5 were sentenced to suffer R.I. for 5
years and to pay a fine of Rs. 2,000/-each, in
default, to suffer R.I. for 6 months for the offence
punishable under Section 376(2)(g) of IPC.
5. Being
ig aggrieved by the said judgment and
order, the present appellants/original accused Nos. 4
and 5, have approached this court by way of the
present appeal.
6. Shri Laddha, learned counsel appearing on
behalf of the appellants submits that no specific
evidence has been brought on record to show that there
were lights at the bottom or top of the hills. He
further submits that, in fact, PW-1 says that there
were no lights. He, therefore submits that it is
improbable that the complainant and the PW-2 could
have seen the present appellants on the spot. He
further submits that none of the present appellants
have been apprehended on the spot and they have been
implicated on disclosure of their names by the
::: Downloaded on – 09/06/2013 13:48:43 :::
( 6 )
co-accused. He further submits that it is to be noted
as to how the names of these accused have been
disclosed is not borne out from the evidence of either
PW-10 Police Sub-Inspector Shrikant Ubale, so also,
from the evidence of PW-12, P.I. Prakash, who was the
Investigating Officer.
. He further submits that in the statement of
the complainant and the PW-2 no description or no
particulars of the accused have been given and as
such, their identification for the first time in the
dock by the witnesses, is not sufficient to convict
them.
parade
He
has
further submits that
been held so as to give credence
no identification
to the
identification in the court. He, therefore, submits
that the appellants are entitled to acquittal. He
relies on the judgment of the Apex court in the matter
of ” State of Himachal Pradesh Vs. Lekhraj” 2000
Cr.L.J.44. “Vishwanathan and Others Vs. State of
Tamil Nadu” reported in 2008 AIR SCW 3246, and the
judgment of the Apex Court in the matter of “B.A.
Ramaiah Vs. State of A.P.” AIR 1997 SC 496 and “State
of Maharashtra Vs. Sukhdeo Singh”, AIR 1992 SC 2100.
7. As against this, Shri Patil, learned APP
appearing on behalf of the State submits that it is
not necessary that in every case an identification
parade has to be held. He submits that merely because
the identification parade has not been held is not
::: Downloaded on – 09/06/2013 13:48:43 :::
( 7 )
fatal to the prosecution case. He submits that in the
present case, from the perusal of the evidence of the
complainant, PW-2, and PW-10 it can be seen that the
prosecution has proved the case beyond reasonable
doubt. He submits that apart from that, the
prosecutrix, so also, the PW-2 have identified the
accused in the court and as such, the identification
in the court, which is a substantive evidence, is
sufficient to convict the accused. He submits that in
any case, the test identification parade is not a
piece of substantive evidence and can be used only to
corroborate
submits that
the substantive evidence.
in view of the identification
He, therefore,
in the
dock, no error could be found with the approach of the
trial court so as to warrant interference.
8. Since the present appeal is filed by the
original accused Nos. 4 and 5 only, I will restrict
myself to discuss the evidence, as has been brought on
record by the prosecution, only in so far as these two
accused are concerned.
. Though the prosecution has examined 12
witnesses, it will be relevant only to examine the
evidence of PW-1 ( the prosecutrix), PW-2 Ubed, PW-10
PSI- Shrikant Ubale and PW-12, Prakash, the
Investigating Officer.
. It is to be noted that the present appellants
have been convicted for the offence under section
::: Downloaded on – 09/06/2013 13:48:43 :::
( 8 )
376(2)(g) of IPC on the basis that they were sharing
common intention with the accused Nos. 1 and 2, who
are alleged to have committed the actual act of
forcible intercourse. It is not even the prosecution
case that the present appellants have committed sexual
intercourse. In that view of the matter, I find that
it will not be necessary to refer to the medical
evidence, while considering the appeal of these two
accused.
9. The prosecutrix Salma Begum ( PW-1) in her
garden alongwith
evidence has stated that when she had gone to the said
her boy friend Ubed, they were
sitting under a tree. At about 7.30 p.m., PW-2 Ubed
told her that he would bring ice cream for them from
outside the garden. She further states that when she
was sitting below the tree, about 7 boys came near
her. Out of them 3 boys forcibly lifted her and took
her near the Umbrella in the garden. In so far as the
narration regarding the actual act is concerned, I do
not find it necessary for decision of the present
appeal. She states that, after the act of
forcible intercourse was done, she saw that remaining
4 boys were beating PW-2 Ubed.
One of them also snatched a cash from Ubed. Since she
was frightened, she told Ubed to run away and
therefore, they came outside the garden, where, they
saw the police party. She has stated that since she
::: Downloaded on – 09/06/2013 13:48:43 :::
( 9 )
was weeping, the police personnel asked as to why she
was weeping and, therefore, she narrated the incident.
She further states that at the time those 7 boys were
about to leave, she had shown those 7 boys to the
police personnel. The police caught hold of 2 boys
out of those 7 boys. Admittedly, none of the present
appellants is amongst those 2 boys. She further
states that when those 2 accused persons were asked
about the other boys, the said 2 accused disclosed the
names of the other 5 boys. She further states that
thereafter, when they were brought at City Chowk,
again,
inquired
the
about
officer of the said
the names of those 5 boys and
police station,
the 2
boys had disclosed the names of other 5 boys. She has
then stated about the spot panchanama and her medical
examination.
. She further states that after she was brought
from medical examination at Ghati to police station,
City Chowk, already 3 boys were brought at the police
station, City Chowk. She identified the 3 boys to be
the same boys who had beaten Ubed in the garden.
According to the prosecution, the present appellants
were amongst the 3 boys, who were identified by her in
the police station and in the court. Undisputedly,
she has identified the present appellants to be the
persons who had beaten Ubed in the garden.
. In her cross-examination, she has clearly
stated, ” Prior to the incident, I had no occasion to
::: Downloaded on – 09/06/2013 13:48:43 :::
( 10 )
see those 3 boys, who came near me, when I sat below
the tree alone.” She further states that she was never
called by the police for the identification parade
before any Magistrate.
10. In so far as the evidence of PW-2 Ubed is
concerned, his narration is almost similar as that of
PW-1. However, he names the PW-1 Salma also as
Nasreen. He states that when he returned after
getting the ice-cream, he did not find her below the
tree. He states that 4 boys were standing there. He
has
persons
identified
who
ig the
were
accused NOs.
standing there.
3 to 5 to
He states
be the
that,
thereafter, he heard the voice of PW-1, "Leave me,
Leave me". He, therefore, proceeded ahead. However,
those 4 boys caught hold of him. He further states
that they further asked him, whether he was fond of
taking the girls for outing and further told him to
run away from the spot. He further states that,
thereafter he noticed PW-1 Nasreen coming downstairs
and 3 boys were following her. He states that after
she came near him, she told him to leave the spot and
she also told that some bad work was done with her.
Then narration about police meeting them and police
chasing the 7 boys is to the same effect as that of
PW-1. This witness has also identified the present
appellants to be the persons who had beaten him on the
spot. This witness also admits in cross examination
::: Downloaded on – 09/06/2013 13:48:43 :::
( 11 )
that the boys who had beaten him in the garden were
not previously acquainted with him.
11. In the present case, the important evidence is
that of PW-10. PW-10, at the relevant time was
working in the local crime Branch. He states that on
24th March, 2006, one Mr. Karande, who was working as
Police Inspector called him and told that he has
received information that some persons were committing
rape on a woman who had gone with her companion at
Sarai Garden near Saleem Ali Sarowar. He states that
he received
accordingly
such
left
information at
for Sarai Gardan in the
8.05 p.m.
Government
He
vehicle. He reached there at 8.15 p.m. He states
that they stopped the vehicle outside the garden. At
that time, they noticed that one person was being
beaten by 4 to 5 boys and two persons were standing by
the side of a woman. After noticing that police have
come they started running away. The woman was crying
and, therefore, she was asked as to what had happened.
She thereupon told them that persons running away had
raped her. He states that then immediately they
started chasing them. He further states that they
could catch only two boys who were by the side of the
woman and rest of them succeeded in running away. He
states that on enquiry, it was revealed that one of
the persons, named Shaikh Akil who had raped the
prosecutrix and the other person named Syed Feroz, was
::: Downloaded on – 09/06/2013 13:48:43 :::
( 12 )
the one who had pressed her breast. He further states
that these persons who were caught, disclosed the
names of other persons who had ran away as Kaisar,
Javed, Omer, Zahed and Imaran. He further states that
thereafter the prosecutrix, PW-2 and 2 accused were
brought to the crime branch office and thereafter they
were brought to the City Chowk Police Station,
Aurangabad.
12. The said witness in his cross examination
admits that there was no lighting arrangement at the
umbrella
the
itself.
ig He states that the distance between
main gate to the umbrella might be about 2500 to
3000 feet and the umbrella might be at a distance of
8000 to 9000 feet from the small gate. He further
states that there were people in the garden when they
entered in it.
13. The next important piece of evidence in so far
as the case of the prosecution is concerned would be
that of PW-12, Prakash, the Investigating Officer. In
his evidence, he states that PSI Ubale of Crime Branch
had caught two accused on spot. On 25/3/2006, he
arrested them at around 2.30 p.m. He further states
that on the same day at around 11.30 hours, he
arrested the other 3 accused , namely, Umber, Zahed
and Imran. He identified Umber and Zahed in the
court.
::: Downloaded on – 09/06/2013 13:48:43 :::
( 13 )
. The cross-examination of this witness would be
crucial. He states in his cross-examination that Ubed
had not told before him about facial appearance of the
boys who beat him and about description of their
clothes and about their gait. He further states that
Crime Branch officials did not hand to him any
statement of Salma or Ubed recorded by them. He did
not make any inquiry to Crime Branch officials as to
whether they had recorded statements of Salma or Ubed.
He further admits that he did not hold any
identification parade of the accused before the
competent
authority.
not record statement of P.S.I.
He further admits that he
Shrikant Ubale.
did
14. It could thus be seen that the only piece of
evidence as against the present appellants is the
disclosure of the names of the present appellants by
the co-accused Sayyad Firoz and Akil, mention of their
names in the FIR and their identification in the court
for the first time by the prosecutrix and PW-2 Ubed.
Admittedly, no identification parade has been held.
It has further come in the evidence of PW-1
prosecutrix that when she was brought to the police
station on 25th March, 2005, after her medical
examination, from Ghati Hospital, 3 boys were shown to
her by the police and she identified the said boys to
be the boys who had beaten Ubed Chaus in the garden.
She further states that the police asked about the
::: Downloaded on – 09/06/2013 13:48:43 :::
( 14 )
names of these 3 boys in her presence.
15. It can thus clearly be seen that the
conviction of the present appellants is on the basis
of the disclosure of their names by the co-accused Sk.
Akil and Syed Firoz, who were apprehended on the spot,
their identification at the police station immediately
after the incident and on the basis of their
identification in the dock.
16. The Apex court in the case of “B.A. Ramaiyya”
(supra) in para.16 has observed thus :-
“A statement contained in the FIR
furnished by one of the accused in the
case cannot, in any manner, be used
against another accused. Even as against
the accused who made it, the statement
cannot be used if it is inculpatory innature nor can it be used for the purpose
of corroboration or contradiction unlessits maker offers himself as a witness in
the trial. The very limited use of it is
as an admission under Section 21 of the
Evidence Act against its maker alone
unless the admission does not amount toconfession”
. It can thus clearly be seen that the statement
of the co-accused on the basis of which names of the
present appellants are sought to be included in the
FIR, cannot in any manner be used against the other
accused. In that view of the matter, I find that the
reliance placed by the learned trial court on the fact
::: Downloaded on – 09/06/2013 13:48:43 :::
( 15 )
that the names of these accused were disclosed by the
accused who were apprehended on the spot, would not be
proper.
17. No doubt, identification of the accused in the
dock is a substantive piece of evidence. However,it
is a settled law that identification in the dock for
the first time is a weak type of evidence. In the
present case, both the PW-1 and PW-2 have admitted
that they did not have acquaintance with the accused
prior to the incident. The prosecutrix and PW-2 had
only
It is further
an opportunity to have a glimpse of the accused.
to be noted that it has come in the
evidence of Investigating Officer PW-12 that no
particulars or description of the accused who had run
away was given by either the prosecutrix or the PW-2.
It is further to be noted that both the prosecutrix
and PW-2 have admitted in their evidence that 3 boys
were shown ( in the police station on the immediate
next day) and they have identified them to be the
persons who had beaten Ubed. It could be thus seen
that the Investigating Officer without holding a T.I.
parade, which has a sanctity in law, has shown the
said accused persons including the appellants to the
prosecutrix and as such, I find that their
identification for the first time in the dock, under
these circumstances, would not be sufficient to base
the conviction.
::: Downloaded on – 09/06/2013 13:48:43 :::
( 16 )
18. In this respect, I may also refer to the
observations of the Apex Court in the case of ” State
of Maharashtra Vs. Sukhdeo”(supra)
” she too had identified the accused in
Court only. She was candid enough to
accept the fact that the accused Sukha
and Jinda were shown to her and PW 48
when they were being taken to Court.
This admission nullifies the
identification of the two accused by
these two witnesses in court. No weight
can be attached to such identification
more so when no satisfactory explanation
is forthcoming for the investigating
officer’s
ig failure
identification parade.”
to hold a test
19. In the present case also, no explanation
is coming forth for not holding the identification
parade. As such, I find that no weight can be
attached to the identification in the court,
particularly when both the appellants were shown to
the witnesses immediately on the next date of the
incident.
20. In the aforesaid case, the Apex Court has
relied on the earlier judgment in the case of ”
Kanan Vs. State of Kerala” reported in AIR 1979 SC
1127, as under :-
"It is well settled that where a
witness identifies an accused who
::: Downloaded on - 09/06/2013 13:48:43 :::
( 17 )
is not known to him in the Court
for the first time, his evidence is
absolutely valueless unless there
has been a previous T.I. parade to
test his powers of observations.
The idea of holding T.I. parade
under Section 9 of the Evidence Act
is to test the veracity of the
witness on the question of his
capability to identify an unknown
person whom the witness may have
seen only once. If no T.I. parade
is held then it will be wholly
unsafe to rely on his testimony
regarding the identification of an
accused for the first time in
Court.”
21.
Vs. Lekhraj
The Apex Court in the case of ” State of H.P.
and another” reported in 2000 Cr.L.J.
44,in
44, similar facts has held as under :-
“During the investigation of a crime the
police agency is required to hold
Identification Parade for the purposes ofenabling the witness to identify the
person alleged to have committed theoffence particularly when such person was
not previously known to the witness or
the informant. The absence of Test
Identification may not be fatal if the
accused is known or sufficientlydescribed in the complaint leaving no
doubt in the mind of the Court regarding
his involvement. Identification Parade
may also not be necessary in a case where
the accused persons are arrested at the
spot. The evidence of Identifying the
accused person at the trial for the firsttime is, from its very nature, inherently
of a weak character.”
22. Admittedly, the present appellants were not
known or sufficiently described by the prosecutrix or
::: Downloaded on – 09/06/2013 13:48:43 :::
( 18 )
the PW-2. It can further be seen that both the
present appellants were not caught on the spot. In
that view of the matter, I find that the conviction of
the present appellants on the basis of their
identification in the dock without there being
sufficient explanation for not holding the T.I.parade
is not sustainable in law.
23. In so far as the contention of the learned APP
that holding of identification parade is not fatal in
every case is concerned, undoubtedly, he is right in
saying so.
in the
But, as already observed by the Apex Court
aforesaid judgments, the holding of
identification parade is necessary when the accused
are not previously known to the witnesses and there is
no sufficient description in the complaint.
24. As already discussed hereinabove, merely
because the co-accused have implicated the present
appellants cannot be a ground for convicting them. I
am, therefore, of the considered view that in absence
of any corroboration to the identification of the
appellants in the dock for the first time in the
court, conviction is not sustainable in law.
25. The appeal is, therefore, allowed. The
appellants are directed to be set at liberty
forthwith, if not required in any other case. Fine
::: Downloaded on – 09/06/2013 13:48:43 :::
( 19 )
amount, if deposited, be refunded in accordance with
law.
[B.R. GAVAI]
JUDGE.
//AUTHENTIC COPY//
[G.R. TOKE]
Personal Assistant.
::: Downloaded on – 09/06/2013 13:48:43 :::
