While acquitting the appellants in a criminal appeal against their conviction, the Bombay High Court in a most significant judgment titled Sunil Vishnu Mukane & Ors v. State of Maharashtra in Criminal Appeal No. 1100 of 2018 pronounced as recently as on August 24, 2022 overturned conviction of four accused in a dacoity case observing that the prosecution’s evidence was unreliable due to irregularities in arranging the test identification parade.

The Single Judge Bench of Hon’ble Mr Justice Sarang V. Kotwal while acquitting the appellants in a criminal appeal against their conviction held unambiguously that:
In this particular case in view of these infirmities, benefit of doubt must go to the accused. There are no other incriminating circumstances against the accused. The appellants had been convicted under Section 395 of the IPC (Punishment for Dacoity) and were sentenced to rigorous imprisonment for ten years and fine of Rs. 50,000/- each. The Court concluded that the evidence from the investigating officer was not satisfactory.

The Court unequivocally held that:
He has tried to cover up lapses in arranging the test identification parade by the police and, therefore, it is not safe to rely upon his evidence in respect of recovery of cash amount. So it was but natural that the accused had to be given the benefit of doubt and it was accordingly given!

At the outset, this extremely learned, laudable, landmark and latest oral judgment authored by the Single Judge Bench of Hon’ble Mr Justice Sarang V. Kotwal first and foremost puts forth in para 1 that:
The appellants have challenged the judgment and order dated 10.8.2018 passed by the Additional Sessions Judge, Mangaon, Raigad in Sessions Case No.27/2016. By the impugned judgment and order, the appellants, who are the original accused Nos.1 to 4, were convicted for commission of the offence punishable under Section 395 of the Indian Penal Code and were sentenced to suffer RI for ten years and to pay fine of Rs.50,000/- each and in default to suffer RI for one year. They were granted set-off under Section 428 of Cr.P.C..

To put things in perspective, the Bench then envisages in para 3 that:
The prosecution case is that PW-1 Ravindra Lad and PW-2 Ankit Dasure were the Supervisors of a Poultry Farm. They had supplied chickens to their customers and had got money. They were carrying amount of Rs.4 Lakhs. They were traveling on the highway around midnight on 11.12.2015. Suddenly they were intercepted by the accused. One of the accused gave a blow by stick because of which both of them fell down.

The other accused joined the first accused and they were assaulted with sticks. The bag containing more than Rs.4 Lakhs was taken away. The victims then went to one Vilas Bait and informed the incident. All of them along with others then went to Kolad Police Station. C.R. No.239/2015 was registered at Roha police station under Section 395 of IPC. The investigation was carried out. All the appellants-accused were arrested on 17.12.2015. Apart from the appellants, there was one more offender who was below 18 years of age. His trial was separated. The investigation was carried out.

During investigation, it is the prosecution case that the appellants were identified in the test identification parade held in the Tahsildar office at Roha on 18.1.2016. It is also the prosecution case that during investigation some cash amount was recovered at the instance of different appellants. The wives of the appellants produced some ornaments which were purchased using the amount involved in this offence. After this recovery, the investigation was continued. Statements of witnesses were recorded and at the conclusion of the investigation, charge-sheet was filed. The case was committed to the court of Sessions. The appellants were the original accused Nos.1 to 4.

In hindsight, the Bench then discloses in para 4 that:
During trial, the prosecution examined twelve witnesses including two victims, the pancha for recovery, the Tahsildar who had conducted the test identification parade and the investigating officers. The defence of the appellants was of total denial. At the conclusion of the trial, learned Judge believed the evidence of identification parade and of recovery. He convicted and sentenced the appellants as mentioned earlier.

As it turned out, the Bench then observes in para 8 that:
I have considered these submissions. Though learned counsel for the appellant tried to canvass argument suggesting that the incident has not taken place, it is difficult to accept such argument. No reason is brought on record to show as to why PWs-1 & 2 would concoct a false story. The motorcycle was lying at the spot and the police were immediately informed in the night. Therefore, though there is no medical evidence supporting the versions of PWs-1 & 2, that does not mean that the incident has not taken place.

Quite pragmatically, the Bench then underscores in para 9 that:
The crucial question in this case is about the identity of the accused. In that behalf in my opinion, the prosecution has miserably failed to establish that the appellants were the actual offenders.

Be it noted, the Bench specifies in para 10 that:
As discussed hereinabove, the evidence shows that the incident had taken place at a secluded spot of highway at 1.00 a.m.. There were no lights anywhere around. The motorcycle had fallen down. The description of the accused was not mentioned in the FIR. PW-1 has also not clearly answered as to what description he had given of the accused. The prosecution has failed to prove that the witnesses had sufficient opportunity to observe the features of the accused in sufficient light.

It cannot be glossed over that the Bench then holds in para 11 that:
Though the prosecution case is that the appellants were identified in the test identification parade, even that evidence is doubtful. The witnesses i.e. PWs-1 & 2 have deposed that they were called at the Tahsildar’s office on 14.1.2016. Inspite of that PW-10 and PW-12 have not deposed about the date of 14.1.2016. They have deliberately kept it vague. Therefore, there is a strong possibility that on that day the prosecution witnesses had an opportunity to see the accused.
 

The prosecution has to rule out that possibility, which is not done. All the witnesses have admitted that the Tahsildar’s office and the police station were situated in the same premises and, therefore, it was all the more necessary for the prosecution to have explained that all the precautions were taken so that the accused were concealed from the witnesses not only on 18.1.2016 but also on 14.1.2016.

Most significantly, the Bench then minces no words to hold in para 12 that, PW-12 in the cross-examination has admitted that the dummies were brought by the police. In this background it was also necessary for the prosecution to have led the evidence to show that the witnesses i.e. PW-1 & PW-2 had no opportunity to see the dummies. In this particular case, it was not sufficient to conceal the accused but if the witnesses had an opportunity to see the dummies before the test identification parade; then it was very easy to identify the accused. This precaution is not shown to have been taken by the investigating agency.

PW-12 has admitted that the witnesses were sitting in one room and the accused and the dummies were sitting in the other room and there was a passage in between. However, no further evidence is led to show that it was not possible to see the persons in other room while sitting in one room. Apart from that, as rightly submitted by learned counsel for the appellants sixteen dummies were asked to take part in one single identification parade for four accused. All these factors cumulatively leads to a reasonable conclusion that identification of the accused is extremely doubtful and, therefore, benefit in that behalf must go to the accused.

Equally significant is what the Bench then holds in para 13 that:
Other equally important circumstance is of recovery of ornaments and cash amount. As mentioned earlier, the ornaments were produced by the wives of the appellants. They were not examined and, therefore, their statements to the police in presence of panchas cannot be read in evidence. The jewellers have only deposed that the ornaments were purchased by different accused and their wives on 15th & 16th December, 2015. Significantly neither PW-6 Kishor Jain nor PW-7 Pinkesh Jain were shown the articles which were produced by them. Only PW-9 Vikram Jain has identified one golden-ring. Thus recovery of ornaments falls short of the required degree of proof.

No less significant is what the Bench then lays bare in para 14 specifying that, As far as recovery of cash amount is concerned, PW-8 was the only pancha examined by the prosecution. He had not supported the prosecution case and, therefore, he was cross-examined by the prosecution. In the cross-examination, he spoke about the memorandum statements and the consequent recovery. Thus, he is not a reliable witness at all.

The other pancha Chandrakant Sanap is not examined and no explanation is offered as to why he was not examined. The investigating officer’s evidence in respect of these recoveries of cash amount is vague. In none of the statements, the accused-appellants had mentioned the place where they had concealed the cash amount. All the accused were taken together for effecting the recoveries. Their statements were recorded one after the another. They were taken in the same jeep to effect recovery. Some of the places were farm-houses and a hut belonging to other persons and hence were accessible to others. No other supporting evidence is led to show that only the accused had access to those private places. Such recoveries could have been accepted if there was an independent evidence which was reliable.

It also cannot be lost sight of that the Bench then points out in para 15 that, The pancha PW-8 Waman Kadam has stated that when he was called to the police station that time the police told them to proceed towards the place where the incident had taken place. Accordingly the police took them towards the place in order to find the articles; those were kept there. This part of his evidence makes the police investigation doubtful about recovery of the cash amount. After this cross-examination, he has given all the favourable answers to the prosecution in answers to the leading questions.

In the cross-examination on behalf of the accused, he admitted that when he and other panchas went to police station, that time the police told them as to which articles were to be seized and that the police themselves informed them as to which places were to be visited. This also indicates that the recovery was made at the instance of the accused but the police already knew the places from where the recovery was to be effected. There was no further re-examination on behalf of the prosecution to clarify this.

Most forthrightly, the Bench then minces no words to hold unequivocally in para 17 that:
As discussed earlier, the pancha is also not reliable. Therefore, it is not safe to rely on such type of evidence which is the only other evidence apart from doubtful identification; available with the prosecution against the appellants.

As a corollary, the Bench then rightly holds in para 18 that:
In this particular case in view of these infirmities, benefit of doubt must go to the accused. There are no other incriminating circumstances against the appellants.

Finally, the Bench then concludes by holding in para 19 that:
The appellants are in custody since 17.12.2015. Considering the above discussion, the appellants deserve to be acquitted. Hence, the following order :

ORDER

1. The appeal is allowed.
2. The impugned judgment and order dated 10.8.2018 passed by the Additional Sessions Judge, Mangaon, Raigad in Sessions Case No.27/2016, is set aside.
3. The appellants are acquitted from the charges faced by them in Sessions Case No.27/2016 before the Additional Sessions Judge, Mangaon, Raigad. The appellants shall be released from jail, if not required in any other case.
4. Criminal Appeal is disposed of in aforesaid terms. With disposal of the appeal, all the connected applications are also disposed of.

All told, the Bombay High Court has very commendably given the benefit of doubt to the accused. We have already discussed the reasons as afore-stated. There are clear and glaring lapses in the manner in which the police conducted the test identification parade as discussed earlier. So in such circumstances the Bombay High Court very rightly accorded the benefit of doubt to the appellants and overturned conviction of four accused in dacoity case.

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh