SHAIKH UMAR AHMED SHAIKH AND ANR. versus STATE OF MAHARASHTRA

SHAIKH UMAR AHMED SHAIKH AND ANR. v.

STATE OF MAHARASHTRA

APRIL 28, 1998

[G.T. NANA VAT! AND V.N. KHARE, JJ.]

Terrorist and Disruptive Activities (Prevention) Act. 198?/Indian Penal Code. 1860 :

S.3(2) rlw s. /49,JPC/s.3021149-Rioting mob-Attack on victims - identity of assailants-Identification parade-Trial court disbelieved evidence of identification parade on the ground that suspects were shown to the witnesses-But recorded conviction believing the evide11ce of same witnesses in court regarding identity of accused-Held when accused were already shown to witnesses statements of witnesses indentifYing the accused in court lost all its value and could not be made basis for recording conviction.

Evidence Act, 1872 :

Evide.'1ce of identification parade-Suspects stated to have been already shown to to witnesses-Statements of same witnesses of same witnesses same witnesses in court regarding identity of accused-Evidentiary value of- In view of the finding of the trial court that there was strong possibility that suspects were shown to the witnesses, their identification in the cuurt by the witnesses was meaningless.

shown to to witnesses-Statements of same witnesses of same witnesses same witnesses in court regarding identity

Identification parade-Arranged at police station-Accused in custody of Investigating Officer-Special Executive Magistrates conducting id::ntification parade not followed guidelines given by High Court-Suspects stated to have been already shown to witnesses-Effect of

The appellants and three others were prosecuted under s. 3(2) (i) of

Terrorist and Disruptive Activities (Prevention) Act, 1987 read withs. 149 I.P.C. and ss. 302/149 I.P.C.

The prosecution case was that when the city of Bombay was in the grip of communal riots in December 1992 and some undertrials were kept for treatment in J.J. Hospital, police escort consisting of one Head Constable and three Constables were pr<Jvided there. On the day of occurrence Constables PW-2 and PW-11 and the Head Constable came out of the Hospital 1209

after handing over the charge to the next batch of the escort party. The Head Constable was walking about 25 feet ahead and PW-2 and PW-11 were following him on their way to their respective houses. PW-2 and PW-11 saw mob of about I 00 persons standing on the other side of the road; 5-6 persons armed\ with choppers and Knives suddenly crossed the road and attacked the Head Constable who collapsed on the ground. The victim was taken to the Hospital where he was declared dead. Identification parades were held by Special Executive Magistrates in the Police Station, PW-2 and PW-11 identified the accused, and the investigation culminated in trial of the accused before the Designated Court.

The Designated Court did not believe the )Videnr.e of identification parade, but rellying on the identification of the appellants by the two eye-witnesses, PW-2 and PW-11, in the Court, convicted the appellants of the offences charged and sentenced them the imprisonment for life under each of the two counts. The other three accused were acquitted. Aggrieved, the appellants filed the present appeal.

It was contended for the appellants that the Designated Court having rejected the evidence of identification parade on the ground that there was possibility of the suspects being shown to the eye witnesses at the Police Station, erred in convicting the appellants on the evidence of identification in the court by the self-same witnesses.

Allowing the appeal, this Court

HELD: I.I. When the accused were already shown to the witnesses the evidence of the witnesses identifying the accused in the court lost all its value and could not be made basis for recording conviction against the accused. [1216-C]

1.2. No doubt, the evidence of identification parade is not substantive evidence but is utilised for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them the real and substantive evidence of the identity of the accused comes when witnesses give statement in the court identifying the accused, but, in the instant case, the Designated Court has recorded finding that there was strong possibility that the suspects were shown to the witnesses. Under the cireumstances, their identifica1tion in the court by the witnesses was meaningless. The reliance on evidence of identification of the accused in the court by PW-2 and PW-II by the Designed Court was an erroneous way of dealing with the

S.U.A. SHAIKH v. STATE OF MAHARASHTRA [V.N. KHARE. J.] 1211

evidence of identification of the accused in the court by the two eye-witnesses and has caused failure of justice. (1216-A-B; DI

2. Admittedly, the identification parades were arranged at the police station by the Special Executive Magistrates at the instance of the Investigating Officer. They took his help for collecting panchas and documents. The Magistrates did not verify whether the persons brought by the police for the purpose were in any way connected with police or in fact they were serving members of police force or whether they were under any obligation of the Investigating Officer. On the date of identification parade the accused were in the custody of the Investigating Officer and he knew the timing when the parade was to take place. On that date the two eye-witnesses, PW-2 anrl PW-11, contacted the Investigating Officer and remained with him. Besides, the Designated Court noted that the Special Executive Magistrates accepted that they did not follow the guidelines given by the High Court, nor were the aware of all the guidelines. !1214-E-F-G)

3. Since conviction of the appellants has been recorded by the Designated Court on wholly unreliable evidence, the same is set aside and the appellants are acquitted of the charges. [1216-E]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 1185of1997.

From the Judgment and Order dated 14.10.97 of the Designated Court in Bombay in T.S.C. No. 2 I of 1994.

U.R. Lalit, W.A. Nomani and A.A. Khan for the Appellants.

M.S. Nargolkar, S.S. Shinde and D.M. Nargolkar for the Respondents.

The Judgment of the Court was delivered by

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 hereir., viz., Shaikh Umar Ahmed Sahikh and Mohd, Nairn 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. 21of1994, 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 fine of Rs. 500 each, in default to suffer R.I. for six months. Both the substantive sentences were directed to run concurrently.

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 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, police escort consisting qf 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 he 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 red coloured shirt. So also Police constable 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 J.J. Comer 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 he 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 but Nos. 6 and 7 in front of gate No. 12of1.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 pm;ons 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 sev~re wounds and bleeding and thereafter he collapsed on the ground. At that stage, constable Gaikwad and Shinde got frightened and therefrom they immediately took turn and went to JJ comer 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

S.U.A. SHAIKH v. STA TE OF MAHARASHTRA [V.N. KHARE, J.] 1213

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 requested Special Executive Magistrate to arrange identification parade and inducted appellants in the parade. On 15.1.94, accused Jafar Mohd. Ismail Sayyad was arrested and on 24.1.94, at the instance of police, the Special Executive Magistrate held another idetification parade. The police subsequently obtained permission to apply the provisions of TADA and after completing the investigation the police prosecuted the accused persons under TADA. Thus, the two appellants, including the three other accused, came to be prosecuted. All the five accused were charged for the offence punishable under Section 140 !PC read with section 3(2)(i))(ii) of TADA and also under section 149/302 !PC. All the accused pleaded not guilty to the charge.

The prosecution examined two eye-witnesses vi7., constables Gaikwad (PW-2) and Shinde (PW-11), who are alleged to be the witnesses of scene of occurrence and ideJ:!tified the two appellants in the Court. By the impugned judgment the appellants in the Court. By the impugn.:d judgment the appellants were convicted for offence punishable under sections 302/149 IPC and under Section 3(2)(1) of TADA read with section 149 l.P.C. and were sentenced to suffer life imprisonment and to pay fine of Rs. 500 each, and in default to further suffer R.I. for six months. Accused Jafar Mohd. Ismail Sayyed, Mohd, Bilal and Liyakat Raseol Himayat R::sool Shaikh were acquitted for the offence punishable under sections 144, 149 and 302 IPC and under section 3 (2) (i) (ii) of TADA. It is, in this way, this appeal has come before us.

The foremost question that arises for consideration in this appeal is that, "once the Designated Court 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 eye-witnesses at the police station, could the appellants be convicted on the evidence of identification of these accused in the Court by the witnesses ? In the present case, the prosecution examined two eye-witnesses, viz., constables GaiL wad an<i Shinde (PWs 2 and 11 respectively), who alleged to have witnessed the scene of occurrence. For the purpose for corroboration of the evidence of the two eye-witnesses, the prosecution relied upon the evidence of identification parades. It was brought on record that, on 7.11.93, PW-5 Special Executive Magistrate had arranged identification parade wherein he held two separate parades. In both the parades Special Executive Magistrate introduced 22 dummies and 3 suspects at time. ln the said identification parade, Police constable Shinde (PW-11) is said to have identified appellant nos. I and 2 viz., Shaikh Umar Ahmed Shaikh and Mohd, Nairn Mohd. Yasin Quershi. The memorandum of identification parade prepared by the Special Executive Magistrate is Ex. 27. Thereafter on 25.11.93, PW-6 Special Executive Magistrate R.D. Singh held another identification parade. In that parade 18 dummies and 6 suspects were introduced. Police constable Shinde (PW-2) identified appellants Shaikh Umar Ahmed Shaikh and Mohd. Nairn Mohd. Yasin Qureshi. Memorandum of identification parade prepared oy R.D. Singh is Ext. 29. Singh arranged an identification parade and in that parade six dummies and one suspect were introduced. Constable Shinde (PW-2) and constable Gaikwad (PW-I I) identified accused Jafar Mohd Ismail Sayyad. The purpose of filing of evidence of identification parade by the prosecution was to connect the appellants and accused No. 3, i.e. Jafar Mohd Ismail Sayyed to the incident alleged to have taken place on 7.12.92.

Although identification parades in Byculla Police Station were arranged by S.E.M. Shri Y.N. Orhal and S.E.M Shri Singh, they took help of Police Inspector Wahule who was the Investigating officer for collecting the panchas and the documents. It was on asking of Police Inspector Wahule, police went to collect the persons. When the police brought these persons to the police station, the Special Executive Magistrate did not verify as to whether the persons so brought are in any way connected with police or in fact they are serving members of police force. Further, there was no effort on the part of the two Special Executive Magistrates to verify that persons so brought to the police station were under any obligation of Police Inspector, Wahule. Admittedly, two eye-witnesses, Police Constables Gaikwad and Shinde when they went to the police station, contacted Police Inspector, Wahule and remained with him. In fact, on the date of identification parade, the accused persons, who were later on introduced in the parade, were in the custody of Police lnspe1;tor, Wahule. It is also admitted that it was at the instance of Police Inspector Wahule, the Special Executive Magistrate arranged the identificationi parade at the police station. Thus, Police Inspector Wahule knew the timing when the parade is to take place. From all these facts and circumstances, the Designated Court concluded that there is strong possibility that the Police Inspector Wahule has shown the suspects to the two eye-witnesses who are serving members of police force. At this ~tage it would be useful to reproduce here the findings of the Designated Court pertaining to

rejection of evidence of identification parade :

" ....... Admittedly on the relevant day, the accused persons, who were introduced in the parade, were in the custody of PI Wahule. PI Wahule had requested the SEM to arrange the parade. PI Wahule was aware about the timing when the SEM was going to arrange the parade. So, there is possibility that PI Wahule might have shown the suspects to the concerned constable and the constable might have given any idea to the dummies or the panchas. Admittedly, the panch alone had approached the witnesses while taking the witnesses to the parade room. That apart when the parade was arranged in the police station, itself, there is every possibility that the witnesses might have seen the suspects prior to the parade. This possibility is escalated in the present case because both the witnesses are the policemen and it was possible for the witnesses to take round in the police station and particularly in the lock up because the witnesses were aware that they were called that in the big cities like Mumbai, it is impossible to spare any space to arrange identification parade and there is no bar to arrange the parades in the police station. But sec. 9 of the Evidence Act expects the independent evidence to connect the accused to the incident. With this idea only the courts are very slow to accept the identification parades which are arranged in the police station. Apart from that in the present case the SEMs have accepted that they have not followed the guidelines given by the High Court. Not only that they are not aware of all the guidelines ....... "

After recording the aforesaid finding, the Designated Court took the view that there being strong possibility of the suspects being shown to the witnesses who were police officers, the evidence of identification parade has no value and therefore rejected it.

Since this appeal being first statutory appeal, we asked learned counsel for the State of Maharashtra as to whether he intends to challenge the aforesaid findings pertaining to rejection of evidence of identification parade by the Designated Court, but he was unable to displace the said findings recorded by the Designated Court.

The Designated Court after having rejected the evidence of identification parade on the ground that the suspects were possibly shown to the witnesses, relied upon the evidence of identification of the accused in the Court by the two witnesses and on that evidence recorded conviction against the appellants.

No doubt, the evidence of identification parade is not substantive evidence, but its utility i:; for purposes of corroboration. In other words, it is utilised for corroboration of the ~worn testimony of witnesses in Court as to the identity of the accused who are strangers to them. Th"! real and substantive evidence of the identity of the accused comes when witnessrs give statement in the Court, identifying the accused. It is true that in the present case, PW-2 and PW-11 identified the two accused who are the appellants before us in the Cou1t. But,. the question arises; what value could be attached to the evidence of identity of ~ccused by the witnesses in the Court when the accused were possibly shown to the witnesses befare the identification parade in the police station. The Designated Court has already recorded i finding that there was strong possibility that the suspects were 5hown 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 PW-2 and PW-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 11nreliable 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. 2 I 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.

Appeal allowed.