{"id":260289,"date":"2008-08-30T00:00:00","date_gmt":"2008-08-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shaikh-umair-vs-the-state-of-maharashtra-on-30-august-2008"},"modified":"2016-09-14T06:39:35","modified_gmt":"2016-09-14T01:09:35","slug":"shaikh-umair-vs-the-state-of-maharashtra-on-30-august-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shaikh-umair-vs-the-state-of-maharashtra-on-30-august-2008","title":{"rendered":"Shaikh Umair vs The State Of Maharashtra on 30 August, 2008"},"content":{"rendered":"
Bombay High Court<\/div>\n
Shaikh Umair vs The State Of Maharashtra on 30 August, 2008<\/div>\n
Bench: B.R. Gavai<\/div>\n
                   IN    THE HIGH COURT OF JUDICATURE OF BOMBAY\n                                 BENCH AT AURANGABAD\n\n                         CRIMINAL APPEAL NO.           40 of 2008\n\n\n\n     1.Shaikh Umair s\/o. Shaikh Ibrahim\n\n\n\n\n                                                                                   \n     2.Javed Khan S\/o. Abdulla Khan\n\n                                                      ..      Appellant\/s\n\n\n\n\n                                                        \n                   Versus\n\n     The State of Maharashtra\n\n                                     .. Respondent\/s\n\n\n\n\n                                                       \n     Mr. S.G.Laddha , Advocate for the appellant,\n     Mr. K.G. Patil, APP for respondent.\n\n                                                      CORAM : B.R. GAVAI,J.\n<\/pre>\n
                                                   DATE : 30th August, 2008.\n<\/p>\n
                                             —\n<\/p>\n
     ORAL JUDGMENT          :\n\n\n     1.         By\n                          \n                          way          of          present           appeal,            the\n                         \n     appellants\/original               accused Nos.         4 and 5,          challenge\n\n     the     judgment       and order passed by the                  learned         Adhoc\n\n     Additional           Sessions          Judge,    Aurangabad             dated      4th\n      \n\n\n     February,          2008,    in     Sessinos       Case        No.        118\/2006,\n   \n\n\n\n     thereby       convicting          them for the         offence          punishable\n\n     under     Section          376(2)(g)<\/a> and 354<\/a> of the Indian                      Penal\n\n     Code.\n\n\n\n\n\n     2.                      The       prosecution      case,          as     could       be\n\n     briefly stated, is as under :-\n\n\n\n\n\n     .          There       is     a    place called \"Surai                 Garden\"       or\n\n     \"Salim        Ali Sarowar Lake\" at Aurangbad.                     At one end of\n\n     this     lake,       there is an elevated portion of land                          and\n\n     thereon,        a watch-tower is constructed.                     The      platform\n\n     is     made     up of wooden planks.             The said structure                  is\n\n\n\n\n                                                           ::: Downloaded on - 09\/06\/2013 13:48:43 :::<\/span>\n                                                  ( 2 )\n\n     commonly          known as \"Umbrella\".              This elevated              portion\n\n<\/pre>\n
     of the land is connected by a naturally elevated strip<\/p>\n
     of     land,        which divides the lake into                    two      portions.\n<\/p>\n
     The     garden         has two gates.            One is main gate just                  by<\/p>\n
     the     side of the road.                 Another is a small gate, which<\/p>\n
     opens directly on the road.\n<\/p>\n
     .            It        is         the    prosecution          case        that         the<\/p>\n
     complainant Salma Begum, who, at the relevant time was<\/p>\n
     studying          in    8th standard was in love with PW-2                           Ubed<\/p>\n
     Chaus,        who was working in a garage, at some                            distance<\/p>\n
     from     her        house.        It is the prosecution case that                       on<\/p>\n
     24th<\/p>\n
     Ubed<\/p>\n
              March, 2006 at about 6.00 p.m., Salma Begum<\/p>\n
              Chaus had gone for a stroll to the said
\n                                                                                           and<\/p>\n
                                                                                     garden.\n<\/p>\n
     After        strolling         in       the garden, both           of     them       were<\/p>\n
     sitting           below       a     tree    in     the      garden        and        were<\/p>\n
     chit-chatting.                They      were     there        till       7.30        p.m.<\/p>\n
     Thereafter,            PW-2       Ubed told the complainant                   that      he<\/p>\n
     would        being      ice-cream for them and                 accordingly,             he<\/p>\n
     went     outside for getting the ice-cream.                            According to<\/p>\n
     the     complainant, when she was sitting below the tree,<\/p>\n
     7     boys     came near her.              Out of them 3           boys       forcibly<\/p>\n
     lifted        her      and        took her near the           umbrella          in     the<\/p>\n
     garden.           It is alleged that they forcibly removed her<\/p>\n
     clothes        and      made her naked.            One boy, out of               the      3<\/p>\n
     boys     removed            his pant and made forcible                  intercourse<\/p>\n
     with     her.          Thereafter, one another boy amongst                           them<\/p>\n
     also     had a forcible intercourse with her.                             The      third<\/p>\n
     boy had pressed her breast.                      She tried to make hue and<\/p>\n
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\n                                                 ( 3 )<\/p>\n
     cry.     However, they gagged her month.                        Thereafter, she<\/p>\n
     wore her clothes.\n<\/p>\n
     .          It        is the further prosecution case that while<\/p>\n
     she     was coming down, those 3 boys also followed                                 her.\n<\/p>\n
     While     coming           down,    she     saw the        remaining          4     boys<\/p>\n
     beating        Ubed Chaus.          They also snatched the amount of<\/p>\n
     Rs.      90\/- from Ubed Chaus.                   They were frightened                and<\/p>\n
     trying     to run away when they came outside the garden.\n<\/p>\n
     The     complainant          was weeping.          Some police             personnel<\/p>\n
     came     near        her     alongwith some other               persons.            They<\/p>\n
     asked     her        as to why she was weeping.                     She      narrated<\/p>\n
     them<\/p>\n
     about
\n              the<\/p>\n
               to<\/p>\n
                      incident.          At that time, those 7 boys<\/p>\n
                      leave the said garden.                  The      police
\n                                                                                         were<\/p>\n
                                                                                      chased<\/p>\n
     them     and     caught hold of 2 boys out of those 7                             boys.\n<\/p>\n
     The     said two boys were brought in front of her.                                  She<\/p>\n
     recognized           one     of those two boys to be one, who                        had<\/p>\n
     committed        intercourse and another one who had pressed<\/p>\n
     her breast.\n<\/p>\n
     .          The        person       who     was      alleged         to     have      had<\/p>\n
     forcible        intercourse with her was identified as                              Akil<\/p>\n
     i.e.      Accused           No.2    and     the other          person        who     had<\/p>\n
     pressed        her     breast       was identified as               Firoz,        being<\/p>\n
     accused No.3.The police inquired about the remaining 5<\/p>\n
     boys.      The names of said 5 boys were disclosed to the<\/p>\n
     police.         Thereafter, the police took the complainant,<\/p>\n
     PW-2     Ubed and those two boys at the City Chock Police<\/p>\n
     Station,        Aurangabad.              Again,    an      inquiry         was      made<\/p>\n
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\n                                           ( 4 )<\/p>\n
     regarding       the 5 missing boys at the city chowk police<\/p>\n
     station.\n<\/p>\n
     .          On    the     next day, Panchanama was drawn.                     The<\/p>\n
     medical        examination of the complainant was done.                        On<\/p>\n
     the     next day, 3 more boys were brought to the                       police<\/p>\n
     station, Aurangabad.             The complainant identified those<\/p>\n
     3     boys, who had beaten Ubed.          Subsequently, after 3\/4<\/p>\n
     days,     one     more     boy was shown by the police                to     the<\/p>\n
     complainant          and she identified him to be the one                    who<\/p>\n
     had     committed        forcible intercourse with her.                 He     was<\/p>\n
     identified to be Kaisar, the accused No.1.\n<\/p>\n
     3.         It<\/p>\n
                      can thus be seen that in all there were                         7<\/span><\/p>\n
     accused.         After     the     completion      of     investigation,<\/p>\n
     charge sheet          came to be filed against the 5                 accused,<\/p>\n
     since     2 accused were found to be juvenile.                      Since the<\/p>\n
     case was exclusively triable by the Court of Sessions,<\/p>\n
     the     same     was     committed to the       court       of      sessions.\n<\/p>\n
     Charges        were framed, to which the accused pleaded not<\/p>\n
     guilty     and claimed to be tried.          .       Since it was also<\/p>\n
     the     case of the prosecution that the accused No.4 had<\/p>\n
     stolen an amount of Rs.90\/- a charge under Section 379<\/a><\/p>\n
     was also framed.\n<\/p>\n
     4.         At    the     conclusion of the trial              the     accused<\/p>\n
     Nos.     1 to 3 were convicted for the offence punishable<\/p>\n
     under     Section 376(2)(g)<\/a> of the I.P.C.                  and they were<\/p>\n
     sentenced       to     suffer R.I.     for 10 years and to pay                   a<\/p>\n
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\n                                               ( 5 )<\/p>\n
     fine     of Rs.           7,000\/- each, in default to suffer                      R.I.\n<\/p>\n
     for     2 years.           However, accused No.            3 Firoz was             held<\/p>\n
     guilty        of     the offence under section 354<\/a> and                      he      was<\/p>\n
     sentenced to suffer R.I.                 for 1 year and to pay a fine<\/p>\n
     of Rs.3,000\/- in default to suffer R.I.                           for 3 months.\n<\/p>\n
     The     accused          No.4 Umair was acquitted of the                    offence<\/p>\n
     under        section 379<\/a> of the IPC.              However, he             alongwith<\/p>\n
     accused        No.5        were    sentenced to suffer R.I.                   for      5<\/p>\n
     years        and     to     pay    a fine of      Rs.        2,000\/-each,            in<\/p>\n
     default,           to suffer R.I.        for 6 months for the offence<\/p>\n
     punishable under Section 376(2)(g)<\/a> of IPC.\n<\/p>\n
     5.           Being
\n                            ig aggrieved     by     the     said       judgment         and<\/p>\n
     order, the present appellants\/original accused Nos.                                    4<\/p>\n
     and     5,     have        approached     this court by             way     of      the<\/p>\n
     present appeal.\n<\/p>\n
     6.           Shri        Laddha,    learned       counsel         appearing          on<\/p>\n
     behalf        of     the     appellants submits that                no     specific<\/p>\n
     evidence has been brought on record to show that there<\/p>\n
     were     lights          at the bottom or top of the                 hills.          He<\/p>\n
     further        submits       that, in fact, PW-1 says that                      there<\/p>\n
     were     no        lights.        He, therefore submits that                  it     is<\/p>\n
     improbable          that     the complainant and the                 PW-2       could<\/p>\n
     have     seen        the     present appellants on the                   spot.       He<\/p>\n
     further        submits       that none of the present                  appellants<\/p>\n
     have     been apprehended on the spot and they have                               been<\/p>\n
     implicated          on      disclosure       of      their      names       by      the<\/p>\n
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\n                                                   ( 6 )<\/p>\n
     co-accused.               He further submits that it is to be noted<\/p>\n
     as     to      how       the     names of       these    accused         have        been<\/p>\n
     disclosed is not borne out from the evidence of either<\/p>\n
     PW-10       Police            Sub-Inspector Shrikant Ubale, so                     also,<\/p>\n
     from the evidence of PW-12, P.I.                        Prakash, who was the<\/p>\n
     Investigating Officer.\n<\/p>\n
     .           He       further          submits that in the statement                    of<\/p>\n
     the     complainant             and     the PW-2 no description                 or     no<\/p>\n
     particulars              of    the     accused have been given                and      as<\/p>\n
     such,       their identification for the first time in                               the<\/p>\n
     dock      by        the witnesses, is not sufficient to                       convict<\/p>\n
     them.<\/p>\n
\n\n     parade\n                    He\n\n                    has\n                              \n                           further         submits    that\n\n                              been held so as to give credence\n                                                                no     identification\n\n                                                                                   to     the\n                             \n     identification                in the court.       He, therefore,              submits\n\n     that      the        appellants are entitled to                 acquittal.             He\n\n<\/pre>\n
     relies on the judgment of the Apex court in the matter<\/p>\n
     of    ”     State        of Himachal Pradesh Vs.                  Lekhraj”          2000<\/p>\n
     Cr.L.J.44.               “Vishwanathan       and Others Vs.                State       of<\/p>\n
     Tamil       Nadu”        reported in 2008 AIR SCW 3246,                      and     the<\/p>\n
     judgment         of      the     Apex Court in the matter                  of      “B.A.\n<\/p>\n
     Ramaiah Vs.              State of A.P.” AIR 1997 SC 496 and “State<\/p>\n
     of Maharashtra Vs.                Sukhdeo Singh”, AIR 1992 SC 2100.\n<\/p>\n
     7.          As       against         this,   Shri       Patil,        learned        APP<\/p>\n
     appearing           on    behalf of the State submits that it                          is<\/p>\n
     not    necessary              that in every case           an     identification<\/p>\n
     parade has to be held.                  He submits that merely because<\/p>\n
     the    identification                parade has not been held                 is     not<\/p>\n
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\n                                                ( 7 )<\/p>\n
     fatal to the prosecution case.                    He submits that in the<\/p>\n
     present       case, from the perusal of the evidence of the<\/p>\n
     complainant,         PW-2, and PW-10 it can be seen that                         the<\/p>\n
     prosecution         has        proved    the case      beyond        reasonable<\/p>\n
     doubt.         He    submits        that       apart     from      that,         the<\/p>\n
     prosecutrix,         so        also, the PW-2 have          identified           the<\/p>\n
     accused        in the court and as such, the identification<\/p>\n
     in     the     court,          which is a substantive           evidence,          is<\/p>\n
     sufficient to convict the accused.                     He submits that in<\/p>\n
     any     case,       the        test identification parade is                not      a<\/p>\n
     piece        of substantive evidence and can be used only to<\/p>\n
     corroborate<\/p>\n
     submits       that<\/p>\n
                          the substantive evidence.\n<\/p>\n
                               in    view of the identification\n                                                                   He, therefore,\n\n                                                                               in      the\n                         \n<\/pre>\n
     dock, no error could be found with the approach of the<\/p>\n
     trial court so as to warrant interference.\n<\/p>\n
     8.           Since       the     present       appeal is      filed       by      the<\/p>\n
     original          accused Nos.          4 and 5 only, I will             restrict<\/p>\n
     myself to discuss the evidence, as has been brought on<\/p>\n
     record by the prosecution, only in so far as these two<\/p>\n
     accused are concerned.\n<\/p>\n
     .            Though        the     prosecution         has      examined           12<\/span><\/p>\n
     witnesses,          it     will be relevant only to               examine         the<\/p>\n
     evidence          of PW-1 ( the prosecutrix), PW-2 Ubed, PW-10<\/p>\n
     PSI-         Shrikant          Ubale     and     PW-12,       Prakash,            the<\/p>\n
     Investigating Officer.\n<\/p>\n
     .            It     is to be noted that the present appellants<\/p>\n
     have     been       convicted          for the offence        under       section<\/p>\n
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\n                                             ( 8 )<\/p>\n
     376(2)(g)        of IPC<\/a> on the basis that they were                     sharing<\/p>\n
     common        intention with the accused Nos.                  1 and 2,        who<\/p>\n
     are     alleged       to    have     committed the        actual        act      of<\/p>\n
     forcible        intercourse.        It is not even the prosecution<\/p>\n
     case that the present appellants have committed sexual<\/p>\n
     intercourse.           In that view of the matter, I find that<\/p>\n
     it     will     not    be necessary to refer              to     the     medical<\/p>\n
     evidence,        while      considering the appeal of these                    two<\/p>\n
     accused.<\/p>\n
\n\n\n\n\n                                          \n     9.         The       prosecutrix      Salma Begum ( PW-1)               in     her\n\n\n\n     garden        alongwith\n                           \n<\/pre>\n
     evidence has stated that when she had gone to the said<\/p>\n
                                  her     boy   friend      Ubed,         they     were<\/p>\n
     sitting        under a tree.         At about 7.30 p.m., PW-2                 Ubed<\/p>\n
     told     her that he would bring ice cream for them                           from<\/p>\n
     outside        the garden.         She further states that when she<\/p>\n
     was     sitting       below the tree, about 7 boys                   came     near<\/p>\n
     her.      Out of them 3 boys forcibly lifted her and took<\/p>\n
     her near the Umbrella in the garden.                    In so far as the<\/p>\n
     narration        regarding the actual act is concerned, I do<\/p>\n
     not     find     it    necessary for decision of                the     present<\/p>\n
     appeal.          She       states    that,   after         the         act       of<\/p>\n
     forcible        intercourse was done, she saw that remaining<\/p>\n
     4             boys           were            beating            PW-2         Ubed.\n<\/p>\n
     One of them also snatched a cash from Ubed.                          Since she<\/p>\n
     was     frightened,         she     told   Ubed      to        run     away    and<\/p>\n
     therefore,        they came outside the garden, where,                        they<\/p>\n
     saw     the police party.            She has stated that since                 she<\/p>\n
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\n                                              ( 9 )<\/p>\n
     was     weeping, the police personnel asked as to why she<\/p>\n
     was weeping and, therefore, she narrated the incident.\n<\/p>\n
     She     further states that at the time those 7 boys were<\/p>\n
     about     to        leave,    she had shown those 7 boys                 to      the<\/p>\n
     police        personnel.        The police caught hold of 2                    boys<\/p>\n
     out     of those 7 boys.             Admittedly, none of the present<\/p>\n
     appellants          is     amongst     those 2    boys.          She     further<\/p>\n
     states        that when those 2 accused persons were                         asked<\/p>\n
     about the other boys, the said 2 accused disclosed the<\/p>\n
     names     of        the other 5 boys.          She further states              that<\/p>\n
     thereafter,          when     they     were brought at           City      Chowk,<\/p>\n
     again,<\/p>\n
     inquired
\n                   the<\/p>\n
                     about<\/p>\n
                           officer    of      the     said<\/p>\n
                                 the names of those 5 boys and
\n                                                              police         station,<\/p>\n
                                                                                the      2<\/p>\n
     boys had disclosed the names of other 5 boys.                            She has<\/p>\n
     then     stated about the spot panchanama and her medical<\/p>\n
     examination.\n<\/p>\n
     .          She       further states that after she was brought<\/p>\n
     from     medical examination at Ghati to police                         station,<\/p>\n
     City     Chowk, already 3 boys were brought at the police<\/p>\n
     station,        City Chowk.          She identified the 3 boys to be<\/p>\n
     the     same        boys     who had beaten Ubed         in      the     garden.\n<\/p>\n
     According           to the prosecution, the present                 appellants<\/p>\n
     were amongst the 3 boys, who were identified by her in<\/p>\n
     the     police        station and in the court.                Undisputedly,<\/p>\n
     she     has     identified the present appellants to be                         the<\/p>\n
     persons who had beaten Ubed in the garden.\n<\/p>\n
     .          In       her     cross-examination,          she      has     clearly<\/p>\n
     stated, ” Prior to the incident, I had no occasion                                to<\/p>\n
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\n                                                  ( 10 )<\/p>\n
     see     those 3 boys, who came near me, when I sat                                below<\/p>\n
     the tree alone.” She further states that she was never<\/p>\n
     called     by        the police for the              identification             parade<\/p>\n
     before any Magistrate.\n<\/p>\n
     10.        In        so     far       as the evidence of PW-2                Ubed      is<\/p>\n
     concerned,           his narration is almost similar as that of<\/p>\n
     PW-1.         However,           he     names    the PW-1         Salma      also      as<\/p>\n
     Nasreen.         He        states        that    when    he       returned         after<\/p>\n
     getting        the ice-cream, he did not find her below                              the<\/p>\n
     tree.         He states that 4 boys were standing there.                               He<\/p>\n
     has<\/p>\n
     persons
\n             identified<\/p>\n
                    who
\n                            ig   the<\/p>\n
                               were
\n                                            accused NOs.\n<\/p>\n
                                           standing there.<\/p>\n
\n                                                                3 to 5 to\n\n                                                                  He     states\n                                                                                   be     the\n\n                                                                                       that,\n                          \n     thereafter,           he    heard the voice of PW-1,                   \"Leave        me,\n\n     Leave     me\".        He, therefore, proceeded ahead.                        However,\n\n     those     4     boys caught hold of him.                   He further           states\n      \n\n\n     that     they        further asked him, whether he was fond                            of\n   \n\n\n\n     taking     the        girls for outing and further told him                            to\n\n     run     away     from        the spot.          He   further        states         that,\n\n     thereafter           he noticed PW-1 Nasreen coming                      downstairs\n\n\n\n\n\n     and     3 boys were following her.                   He states that               after\n\n     she     came near him, she told him to leave the spot and\n\n     she     also     told that some bad work was done with                              her.\n\n\n\n\n\n     Then     narration          about police meeting them and                       police\n\n     chasing        the        7 boys is to the same effect as that                         of\n\n     PW-1.         This        witness has also identified the                     present\n\n<\/pre>\n
     appellants to be the persons who had beaten him on the<\/p>\n
     spot.         This witness also admits in cross                        examination<\/p>\n
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\n                                              ( 11 )<\/p>\n
     that     the     boys who had beaten him in the garden                        were<\/p>\n
     not previously acquainted with him.\n<\/p>\n
     11.        In the present case, the important evidence is<\/p>\n
     that     of     PW-10.         PW-10,    at the     relevant         time       was<\/p>\n
     working        in the local crime Branch.              He states that on<\/p>\n
     24th March, 2006, one Mr.               Karande, who was working as<\/p>\n
     Police        Inspector      called     him and told          that       he     has<\/p>\n
     received information that some persons were committing<\/p>\n
     rape     on     a woman who had gone with her                 companion          at<\/p>\n
     Sarai     Garden near Saleem Ali Sarowar.                   He states that<\/p>\n
     he      received<\/p>\n
     accordingly<\/p>\n
                             such<\/p>\n
                          left
\n                                      information      at<\/p>\n
                                   for Sarai Gardan in the
\n                                                             8.05       p.m.<\/p>\n
                                                                        Government
\n                                                                                      He<\/p>\n
     vehicle.         He     reached there at 8.15 p.m.                 He     states<\/p>\n
     that     they stopped the vehicle outside the garden.                            At<\/p>\n
     that     time,        they     noticed that one person             was        being<\/p>\n
     beaten by 4 to 5 boys and two persons were standing by<\/p>\n
     the     side of a woman.             After noticing that police have<\/p>\n
     come     they started running away.               The woman was crying<\/p>\n
     and, therefore, she was asked as to what had happened.\n<\/p>\n
     She     thereupon told them that persons running away had<\/p>\n
     raped     her.         He    states that     then      immediately             they<\/p>\n
     started        chasing       them.    He further states            that       they<\/p>\n
     could     catch only two boys who were by the side of the<\/p>\n
     woman     and rest of them succeeded in running away.                            He<\/p>\n
     states        that     on enquiry, it was revealed that one                      of<\/p>\n
     the     persons,       named     Shaikh Akil who          had      raped        the<\/p>\n
     prosecutrix and the other person named Syed Feroz, was<\/p>\n
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\n                                             ( 12 )<\/p>\n
     the one who had pressed her breast.                    He further states<\/p>\n
     that     these       persons     who were caught,           disclosed          the<\/p>\n
     names     of     other persons who had ran away                  as     Kaisar,<\/p>\n
     Javed, Omer, Zahed and Imaran.               He further states that<\/p>\n
     thereafter       the        prosecutrix, PW-2 and 2 accused                   were<\/p>\n
     brought to the crime branch office and thereafter they<\/p>\n
     were     brought       to     the   City    Chowk         Police       Station,<\/p>\n
     Aurangabad.\n<\/p>\n
     12.        The       said    witness     in his      cross       examination<\/p>\n
     admits        that there was no lighting arrangement at                        the<\/p>\n
     umbrella<\/p>\n
     the
\n                    itself.\n<\/p>\n
                            ig    He states that the distance between<\/p>\n
             main gate to the umbrella might be about 2500                            to<\/p>\n
     3000     feet and the umbrella might be at a distance                            of<\/p>\n
     8000     to     9000 feet from the small gate.                   He     further<\/p>\n
     states        that there were people in the garden when they<\/p>\n
     entered in it.\n<\/p>\n
     13.        The next important piece of evidence in so far<\/p>\n
     as     the case of the prosecution is concerned would                            be<\/p>\n
     that of PW-12, Prakash, the Investigating Officer.                               In<\/p>\n
     his evidence, he states that PSI Ubale of Crime Branch<\/p>\n
     had     caught       two     accused on spot.        On     25\/3\/2006,           he<\/p>\n
     arrested       them at around 2.30 p.m.              He further           states<\/p>\n
     that     on     the    same     day at     around      11.30       hours,        he<\/p>\n
     arrested       the     other 3 accused , namely, Umber,                     Zahed<\/p>\n
     and     Imran.        He     identified Umber and           Zahed       in     the<\/p>\n
     court.\n<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 13:48:43 :::<\/span><\/p>\n
                                                ( 13 )<\/p>\n
     .          The cross-examination of this witness would be<\/p>\n
     crucial.        He states in his cross-examination that Ubed<\/p>\n
     had not told before him about facial appearance of the<\/p>\n
     boys    who      beat       him and about          description             of      their<\/p>\n
     clothes       and about their gait.               He further states that<\/p>\n
     Crime     Branch          officials       did     not      hand       to     him     any<\/p>\n
     statement        of Salma or Ubed recorded by them.                           He     did<\/p>\n
     not     make any inquiry to Crime Branch officials as to<\/p>\n
     whether they had recorded statements of Salma or Ubed.\n<\/p>\n
     He      further        admits      that     he      did       not          hold      any<\/p>\n
     identification            parade     of     the         accused        before        the<\/p>\n
     competent<\/p>\n
                      authority.\n<\/p>\n
     not record statement of P.S.I.\n<\/p>\n
                                           He further admits that he<\/p>\n
                                                       Shrikant Ubale.\n<\/p>\n
                                                                                          did<\/p>\n
     14.        It        could thus be seen that the only piece                            of<\/p>\n
     evidence        as     against     the present appellants                     is     the<\/p>\n
     disclosure           of the names of the present appellants                            by<\/p>\n
     the co-accused Sayyad Firoz and Akil, mention of their<\/p>\n
     names in the FIR and their identification in the court<\/p>\n
     for     the first time by the prosecutrix and PW-2                                 Ubed.\n<\/p>\n
     Admittedly,          no     identification parade has been                        held.\n<\/p>\n
     It      has     further       come     in        the       evidence         of      PW-1<\/p>\n
     prosecutrix           that    when she was brought to the                         police<\/p>\n
     station       on      25th    March,        2005,        after        her       medical<\/p>\n
     examination, from Ghati Hospital, 3 boys were shown to<\/p>\n
     her     by the police and she identified the said boys to<\/p>\n
     be     the boys who had beaten Ubed Chaus in the                                garden.\n<\/p>\n
     She     further        states that the police asked                        about     the<\/p>\n
                                                             ::: Downloaded on – 09\/06\/2013 13:48:43 :::<\/span>
\n                                           ( 14 )<\/p>\n
     names of these 3 boys in her presence.\n<\/p>\n
     15.        It     can   thus     clearly      be    seen        that        the<\/p>\n
     conviction       of the present appellants is on the                     basis<\/p>\n
     of the disclosure of their names by the co-accused Sk.\n<\/p>\n
     Akil and Syed Firoz, who were apprehended on the spot,<\/p>\n
     their identification at the police station immediately<\/p>\n
     after     the    incident      and   on    the      basis       of       their<\/p>\n
     identification in the dock.\n<\/p>\n
     16.        The Apex court in the case of “B.A.                    Ramaiyya”\n<\/p>\n
     (supra) in para.16 has observed thus :-\n<\/p>\n
                “A   statement contained in     the   FIR
\n                furnished by one of the accused in the
\n                case cannot, in any manner, be used
\n                against another accused. Even as against
\n                the accused who made it, the statement
\n                cannot be used if it is inculpatory in<\/p>\n
                nature nor can it be used for the purpose
\n                of corroboration or contradiction unless<\/p>\n
                its maker offers himself as a witness in
\n                the trial. The very limited use of it is
\n                as an admission under Section 21<\/a> of the
\n                Evidence Act against its maker alone
\n                unless the admission does not amount to<\/p>\n
                confession”\n<\/p><\/blockquote>\n
     .          It can thus clearly be seen that the statement<\/p>\n
     of     the co-accused on the basis of which names of                        the<\/p>\n
     present     appellants      are sought to be included in                    the<\/p>\n
     FIR,    cannot     in any manner be used against the                     other<\/p>\n
     accused.        In that view of the matter, I find that the<\/p>\n
     reliance placed by the learned trial court on the fact<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 13:48:43 :::<\/span>
\n                                            ( 15 )<\/p>\n
     that     the names of these accused were disclosed by the<\/p>\n
     accused who were apprehended on the spot, would not be<\/p>\n
     proper.\n<\/p>\n
     17.         No doubt, identification of the accused in the<\/p>\n
     dock     is a substantive piece of evidence.                     However,it<\/p>\n
     is     a settled law that identification in the dock                         for<\/p>\n
     the     first        time is a weak type of evidence.                 In     the<\/p>\n
     present      case,         both the PW-1 and PW-2         have       admitted<\/p>\n
     that     they did not have acquaintance with the                      accused<\/p>\n
     prior       to the incident.        The prosecutrix and PW-2                 had<\/p>\n
     only<\/p>\n
     It     is    further<\/p>\n
              an opportunity to have a glimpse of the accused.\n<\/p>\n
                                 to be noted that it has come              in     the<\/p>\n
     evidence        of     Investigating    Officer         PW-12        that      no<\/p>\n
     particulars          or description of the accused who had run<\/p>\n
     away     was given by either the prosecutrix or the PW-2.\n<\/p>\n
     It     is    further to be noted that both the                 prosecutrix<\/p>\n
     and     PW-2 have admitted in their evidence that 3                         boys<\/p>\n
     were     shown        ( in the police station on the               immediate<\/p>\n
     next     day)        and    they have identified them to              be     the<\/p>\n
     persons      who       had beaten Ubed.     It could be thus                seen<\/p>\n
     that     the Investigating Officer without holding a T.I.\n<\/p>\n
     parade,      which         has a sanctity in law, has            shown       the<\/p>\n
     said     accused persons including the appellants to                         the<\/p>\n
     prosecutrix           and      as   such,   I    find         that         their<\/p>\n
     identification             for the first time in the dock,                under<\/p>\n
     these       circumstances, would not be sufficient to                       base<\/p>\n
     the conviction.\n<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 13:48:43 :::<\/span><\/p>\n
                                           ( 16 )<\/p>\n
     18.        In    this     respect,    I may also        refer        to      the<\/p>\n
     observations       of the Apex Court in the case of ” State<\/p>\n
     of Maharashtra Vs.         Sukhdeo”(supra)<\/p>\n
                ” she too had identified the accused in
\n                Court only.     She was candid enough to
\n                accept the fact that the accused Sukha<\/p>\n
                and Jinda were shown to her and PW 48
\n                when they were being taken to Court.\n<\/p>\n
                This      admission       nullifies   the
\n                identification of the two accused by
\n                these two witnesses in court. No weight
\n                can be attached to such identification<\/p>\n
                more so when no satisfactory explanation
\n                is forthcoming for      the investigating
\n                officer’s
\n                         ig  failure
\n                identification parade.”\n<\/p>\n
                                       to   hold a   test<\/p>\n
     19.         In     the present case also, no explanation<\/p>\n
     is    coming forth for not holding the identification<\/p>\n
     parade.     As     such,     I find that no weight             can      be<\/p>\n
     attached    to     the     identification        in     the      court,<\/p>\n
     particularly when both the appellants were shown to<\/p>\n
     the   witnesses immediately on the next date of                       the<\/p>\n
     incident.\n<\/p>\n
     20.         In the aforesaid case, the Apex Court has<\/p>\n
     relied     on     the earlier judgment in the case of ”\n<\/p>\n
     Kanan Vs. State of Kerala” reported in AIR 1979 SC<\/p>\n
     1127, as under :-\n<\/p>\n
                     \"It is     well settled that where a\n                     witness    identifies an accused who\n\n\n\n\n                                                   ::: Downloaded on - 09\/06\/2013 13:48:43 :::<\/span>\n                                    ( 17 )\n\n                is not known to him in the Court\n<\/pre>\n
                for the first time, his evidence is
\n                absolutely valueless unless there
\n                has been a previous T.I. parade to
\n                test his powers of observations.\n<\/p>\n
                The idea of holding T.I.     parade<\/p>\n
                under Section 9<\/a> of the Evidence Act
\n                is to test the veracity of the
\n                witness on the question of his<\/p>\n
                capability to identify an unknown
\n                person whom the witness may have
\n                seen only once. If no T.I. parade
\n                is held then it will be wholly
\n                unsafe to rely on his testimony<\/p>\n
                regarding the identification of an
\n                accused for the     first time in
\n                Court.”\n<\/p>\n
     21.<\/p>\n
     Vs.     Lekhraj<\/p>\n
              The Apex Court in the case of ” State of H.P.\n<\/p>\n
                       and another” reported in 2000             Cr.L.J.\n<\/p>\n
     44,in
\n     44,   similar facts has held as under :-\n<\/p>\n
              “During the investigation of a crime the
\n              police   agency is    required to    hold
\n              Identification Parade for the purposes of<\/p>\n
              enabling the witness to identify the
\n              person alleged to have committed the<\/p>\n
              offence particularly when such person was
\n              not previously known to the witness or
\n              the informant.    The   absence of Test
\n              Identification may not be fatal if the
\n              accused   is   known    or   sufficiently<\/p>\n
              described in the complaint leaving no
\n              doubt in the mind of the Court regarding
\n              his involvement. Identification Parade
\n              may also not be necessary in a case where
\n              the accused persons are arrested at the
\n              spot.   The evidence of Identifying the
\n              accused person at the trial for the first<\/p>\n
              time is, from its very nature, inherently
\n              of a weak character.”\n<\/p><\/blockquote>\n
     22.      Admittedly,   the   present appellants were                not<\/p>\n
     known   or sufficiently described by the prosecutrix or<\/p>\n
                                            ::: Downloaded on – 09\/06\/2013 13:48:43 :::<\/span>
\n                                                ( 18 )<\/p>\n
     the     PW-2.        It     can    further be seen             that       both     the<\/p>\n
     present       appellants          were not caught on the spot.                       In<\/p>\n
     that view of the matter, I find that the conviction of<\/p>\n
     the      present          appellants       on    the       basis       of        their<\/p>\n
     identification             in     the     dock     without          there         being<\/p>\n
     sufficient          explanation for not holding the T.I.parade<\/p>\n
     is not sustainable in law.\n<\/p>\n
     23.         In so far as the contention of the learned APP<\/p>\n
     that holding             of identification parade is not fatal                         in<\/p>\n
     every       case is concerned, undoubtedly, he is right                              in<\/p>\n
     saying so.\n<\/p>\n
     in      the<\/p>\n
                         But, as already observed by the Apex Court<\/p>\n
                       aforesaid        judgments,            the        holding          of<\/p>\n
     identification            parade     is necessary when the                  accused<\/p>\n
     are not previously known to the witnesses and there is<\/p>\n
     no sufficient description in the complaint.\n<\/p>\n
     24.         As      already       discussed        hereinabove,               merely<\/p>\n
     because       the        co-accused have implicated                 the     present<\/p>\n
     appellants          cannot be a ground for convicting them.                            I<\/p>\n
     am,     therefore, of the considered view that in absence<\/p>\n
     of    any     corroboration             to the identification               of     the<\/p>\n
     appellants          in     the    dock for the first              time      in     the<\/p>\n
     court, conviction is not sustainable in law.\n<\/p>\n
     25.         The          appeal    is,      therefore,          allowed.           The<\/p>\n
     appellants           are     directed       to   be      set        at      liberty<\/p>\n
     forthwith,          if     not required in any other case.                        Fine<\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 13:48:43 :::<\/span>
\n                                 ( 19 )<\/p>\n
     amount,   if deposited, be refunded in accordance               with<\/p>\n
     law.\n<\/p>\n
                                                 [B.R. GAVAI]
\n                                                     JUDGE.\n<\/p>\n
                         \/\/AUTHENTIC COPY\/\/<\/p>\n
                          [G.R. TOKE]
\n                         Personal Assistant.\n<\/p>\n
                                         ::: Downloaded on – 09\/06\/2013 13:48:43 :::<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Shaikh Umair vs The State Of Maharashtra on 30 August, 2008 Bench: B.R. Gavai 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-260289","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nShaikh Umair vs The State Of Maharashtra on 30 August, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/shaikh-umair-vs-the-state-of-maharashtra-on-30-august-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Shaikh Umair vs The State Of Maharashtra on 30 August, 2008 - 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