Farooq Khairuddin Shaikh vs The State of Maharashtra

D.G. Deshapnde, J.—Heard Mr. Sangani, advocate for the appellant/accused and APP for the State. This appeal is filed by the accused against his conviction under Sections 452 and 392 of the Indian Penal Code by which he is sentenced to suffer R.I. for three and half years and fine of Rs. 500/- and in default R. I for one month, and to suffer R.I. for five years and fine of Rs. 500/-in default, R.I. for one month respectively.

The prosecution case in short was that complainant Jawahar Keshavlal Bhatt was carrying on his chemical business on 2nd floor, Falkland Road, Near Ghadge-Patil Roadways, Dongri, Mumbai. Since he was carrying on some repair works, he had engaged services of Pali Construction Co. On 22.5.1989 at about 17 hours he took one Shri Mahesh Dhirajlal Mistry of Pali Construction Co. to his godown at Dongri. At that time, the accused came to their office representing himself as Salim Bhai of that area and asked the complainant to pay him Rs. 500/- and threatened to assault him with razor. The complainant told him that he had no money, but the accused demanded finger ring, wrist watch and ring from the complainant and Mahesh, and after recovering those articles went away. This matter was reported to Dongri Police and during investigation the accused was arrested from Ahmadabad on 24.6.1989 and pursuant to the statement made by the accused u/s 27 of the Evidence Act golden ring, wrist watch bangles as per the panchanama were recovered and the accused was charge sheeted .Charges under Sections 452 and 392 of the Indian Penal Code were framed against the accused. The prosecution examined in all six witnesses, and thereafter the accused came to be convicted as stated above.

It was urged by Mr. Sangani that there are inherent defects in the prosecution story on account of which the accused was entitled for acquittal. Firstly, he contended that the illegalities were held in investigation parade by Special Executive Magistrate by not following the guide lines laid down by the High Court in that regard. Secondly, it was contended by Mr. Sangani that both the witnesses i.e. the complainant and Mahesh could identify the accused in Court because the accused was brought in the Court on the date of the evidence at least half an hour before the evidence was recorded and this much time was sufficient for the witnesses to identify the accused. Thirdly, he contended that the golden finger ring was not found in the same position and it was actually converted by so called receiver of the stolen property who are at all not examined by the prosecution and lastly the wrist watch recovered at the instance of the accused was a common article and since the complainant had not given any special identify mark, its identification in Court was wrong. He also contended that the complainant had converted the gold pieces into ring without the orders of the Court, and therefore, for all these reasons the accused was entitled for acquittal.

On the other hand it was contended by learned APP that though the Special Executive Magistrate had not followed the guide lines laid down by the High Court strictly and there are certain lapses on the part of the S.E.M., the complainant had in his FIR given description of the accused with specific mark on the face of the accused and since this description tallied with the accused, holding of identification parade was not necessary and as such even if there were some lapses on the part of the S.E.M. in not following the guide lines strictly, evidence of the complainant and Mahesh regarding identification of the accused could not be rejected. Secondly, it was contended by learned APP that the property in the offence was recovered at the instance of the accused and this aspect was properly proved by the prosecution by examining the panchas and Investigating officer. Thirdly, even though the wrist watch is a common article in use of hundreds of people, it was identified by the witness, and therefore, this establishes link of the accused to the crime. Lastly, it was contended that even though the complainant had admitted that on the date of recording of evidence, the complainant and the witnesses came to the Court earlier and thereafter the accused was brought, this did not affect the identification in the Court because of the identifying mark given by the complainant while lodging the FIR.

The FIR was proved by P.W. No. 1 Jawahar Bhatt and the same is at Exhibit 2. In that FIR, the description of the accused given by the complainant as "Salim Bhai, aged about 30 years, wheat complexion, medium built, height 5''-6" and a mole below the right eye. This description was never challenged by the accused and not a single question is put to P.W. No. 1 or P.W. No. 2 to the effect that the accused was a man for some different description or to show that the description given in the FIR did not tally with the accused. Further not a single question was put to any of the witnesses that the accused did not have any identifying mark below his right eye. If at all the accused is challenged his involvement in the crime and his conviction on account of wrong identification then there is necessary for the accused either to show that the description in the FIR is wrong or false or to show that he was not a person responding to the said description. The defence, however, is totally silent in this regard and no attempt was ever made by the accused to show that the description in the FIR with the particulars referred to the mark below the right eye was wrong. In fact, the description given in the FIR is more than sufficient to the identification, and therefore, the identification of the accused by the complainant and Mahesh in Court cannot be rejected on the ground that the complainant and Mahesh had opportunity to see the accused in Court on the date of the evidence.

The attack of the accused on the identification parade and particularly to the two lapses on the part of the SEM in not asking the accused whether the complainant had any opportunity to see them before the identification parade and in not choosing the dummies as per the height, built and complexion of the accused would not affect the prosecution evidence of identification much because though there is no general rule as to when identification parade should be held. Identification parade was held whenever the description given in the FIR is vague or no description is given at all. When in the instant case the complainant had given description of the accused with special identifying mark below the right eye, then firstly, there is no necessity of holding identification parade. Secondly, in such a case if the identification parade is held and there are two lapses on the part of the SEM as stated above that would not affect the validity and legality of the identification parade. If suspect is having special mark on his body, like one in the instant case as some injury below right eye, then it would not be possible for SEM to get the dummies having similar mark below right eye, and therefore, no illegality said to have been committed by the SEM in this regard and the evidence of the identification parade cannot be disregarded for not following the guide lines laid down by the High Court.

Mr. Sangani relied upon judgment of the Supreme Court reported in Budhsen and Another Vs. State of U.P., regarding identification parade. In this case the Supreme Court has observed that the evidence of identification does not constitute substantive evidence. The Supreme Court has also observed as under:-

The purpose of a prior test identification, therefore, seems to be to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them, in the form of earlier identification proceeding. There may, however, be exceptions to this general rule, when, for example, the Court is impressed by a particular witness, on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the investigation stage. They are generally held during the course of investigation with primary object enabling the witnesses to identify persons concerned in the offence, who were not previously known to them. This serves to satisfy the investigating officers of the bona fides of the prosecution witnesses and also to furnish evidence to corroborate their testimony Court. Identification proceedings in their legal effect amount simply to this, that certain persons are brought to jail or some other place and make statements either express or implied that certain individuals whom they point out are persons whom they recognize as having been concerned in the crime. They do not constitute substantive evidence. These parades are essentially governed by Section 162, Criminal Procedure Code. It is for this reason that the identification parades in this case seem to have been held under the supervision of a Magistrate. Keeping in view the purpose of identification parades the Magistrate holding them are expected to take all possible precautions to eliminate any suspicion of unfairness and to reduce the chance of testimonial error. They must, therefore, take intelligent interest in the proceedings, bearing in mind two considerations ; [i] that the life and liberty of an accused may depend on their vigilance and caution and |ii] that justice should be done in the identification. Those proceedings should not make it impossible for the identifiers who, after all, have, as a rule, only fleeting glimpses of the person they are supposed to identify. Generally speaking, the Magistrate must make a note of every objection raised by accused at the time of identification and the steps taken by them to ensure fairness to the accused, so that the Court which is to judge the value of the identification evidence may take them into consideration in the appreciation of that evidence.

If the aforesaid observations of the Supreme Court are considered, then it appears from the evidence of the Special Executive Magistrate and P.W. Nos. 1 and 2 that these two witnesses i.e. P.W. Nos. 1 and 2 identified the accused in the parade without any hitch and without taking any time for that purpose. Both these witnesses immediately, pointed out the accused who was in the parade alongwith other dummies and also narrated what was done by him to them while committing of the offence. The age of the accused as given in the FIR is 30 years and the dummies selected by the SEM were also of approximately same years round about 24 to 30 years. The most important thing which the Supreme Court has observed is that "The power to identify, it may be kept in view, varies according to the power of observation and memory of the person identifying and each case depends on its own facts."

As held earlier, the incident took place on 22.5.198$?; from the manner in which the incident had occurred it is clear that the P.W. Nos. 1 and 2 had ample opportunity to see the culprit minutely. The identification parade took place on 6.7.1989, i.e. less than within tow months of the incident. As per the evidence of the investigating officer the accused was arrested on 24.6.1989 and identification parade was held on 6.7.1989. It cannot, therefore, be said that because of gap of near about one and half year, the complainant and P.W. No. 2 could not be in a position to identify the accused. It is necessary to observe here, even though by way of repetition that the complainant had given specific identifying mark of the accused in his FIR. Therefore, for all these reasons the evidence of SEM and P.W. Nos. 1 and 2 is sufficient to inspire the confidence of the Court regarding identification of the accused, and consequently, no fault can be found in the reasoning given by the Trial Court in this regard.

So far as recovery at the instance of the accused u/s 27 of the Evidence Act is concerned, it is true that the prosecution did not examine the persons from whom the ornaments were recovered. It is also true that when recovery was made, golden ring was not in its original form. However, wrist watch has been recovered and even though it is a common article in use, it has been properly identified. The evidence of P.W. No. 5 Achutrao Yadav has been recorded by the prosecution in this regard. He has given all the details of relevant statement made by accused and the manner in which the accused conducted investigating party to the receiver of the property who were some business men in Zaveri Bazaar. The witness is examined at length. However, nothing is brought out in his cross examination to make his evidence suspicious.

It is true that this piece of gold so recovered from the accused and weighing 50 gms. was returned to Mahesh Mistri P.W. No. 2 under the order of Magistrate, and that the witness converted the property into gold ring. Sangani tried to capitalised this aspect in favour of the accused. However, this conversion of gold into ring subsequent to the consequent upon the order of Magistrate being subsequent recovery, cannot help the accused in disproving the case of the prosecution, and no benefit of this fact vis. conversion by P.W. No. 2 can be given to the accused. Even going to the extent of accepting arguments of Sangani that there were defects and lacuna in the recovery and non-examination of the persons from whom recovery was made at the instance of the accused is a major defect in the prosecution case, accused cannot get any benefit because of his identification by P.W. Nos. 1 and 2 in presence of SEM and it was preceded by the complainant giving specific identifying mark of the accused. It is this mark which directly proves involvement of the accused in the offences. Therefore, for all these reasons no interference is call for in the judgment by which the accused was convicted. However, lastly Sangani contended that sentence of imprisonment of five years u/s 392 is rather than harsh and it should be reduced. The accused has been convicted u/s 452 and sentenced to suffer rigorous imprisonment for three and half years and as such his sentence u/s 392 can also be reduced to three and half years, and therefore, I pass the following order.

ORDER

The appeal is partly allowed.

The judgment of conviction of the appellant is maintained. However, his sentence u/s 392 of the Indian Penal Code is reduced form five years to three and half years. He will also pay fine of Rs. 500/- and in default suffer R.I. for one month. Excepting this modification, the judgment of the lower Court will remain same.