Michel Anthony Nadar v. The State of Maharashtra

2 Briefly stated, prosecution case is that on 9th June, 1995, at about 12 noon, Dipendra R. Shah (P.W.1) and his ofce colleague, Vilas Chavan were travelling on scooter on Western Express Highway towards South Mumbai. A Maruti car came from behind and dashed the scooter, as a consequence, Shah and Chavan fell down. Whereupon three persons alighted from the car, each of them were armed with chopper. One of those persons, cut the rope by which brief-case of Shah, one that was tied to the scooter and took away brief-case with Rs.13,400/- kept therein. Another person snatched bag of Vilas Chavan and fled the scene of ofence. That while carrying away, the brief-case, accused put Mr. Shah and Chavan in fear of hurt by waiving and brandishing the weapons. It appears incident was reported on telephone to the police by Mr. Shah from one shop, which was near the place of incident. Thereafter, witnesses lodged the report to Vile-Parle Police Station whereupon the crime came to be registered against the unknown persons under Sections 397, 307, 392 read with Section 34 of the IPC. In the course of the investigation, appellant-accused nos.[1] and 2 were arrested on transfer warrant on 11th January, 1996. Thereafter, on 3rd February, 1996, a test identifcation parade was held wherein P.W.[1] and P.W.[2] identifed the accused. Be that as it may, it is reported that the accused no.3 has absconded after releasing him on bail and his whereabouts are not known.

3 The learned Trial Judge on 21st January, 1998 framed the charge under Sections 397, 392 read with Section 34 of the IPC; and thereafter on 11th February, 1998, charge under Section 307 of the IPC was also framed The learned Trial Court upon appreciating the evidence, acquitted the accused of the ofences punishable under Sections 397 and 307 of IPC, but convicted for an ofence punishable under Section 392 of IPC and sentenced to sufer rigorous imprisonment for four years vide judgment and order dated 27th March, 1998. Against conviction and sentence, this appeal is preferred.

4 Mr. Mandar Soman, learned counsel (appointed) has taken me through the evidence of Shah (P.W.1), Chavan (P.W.2) and evidence of Special Executive Magistrate- Mr. Kamble (P.W.3). Mr. Soman, submits that the alleged incident had taken place on the busiest highway in Mumbai at around 12 noon. He submits, allegations are improbable in the sense that, neither P.W.[1] nor P.W.2, who were riding the scooter @ 40 km per hour, sustained any injuries nor there was single dent to a scooter. He submits that the complainant had disclosed the registration number of the vehicle, which allegedly dashed the scooter but for the reasons not known, prosecution has not investigated into this aspect to trace whereabouts of its owner. Mr. Soman further submits that there is neither recovery of weapons nor of the brief-case nor the amount allegedly robbed of. Mr. Soman also submits that there was no substantive evidence on record to establish complicity of the appellants in the crime. It is further submitted that the learned Trial Court founded the conviction on the testimony of Shah (P.W.1) and Chavan (P.W.2) and largely relied on the ‘test identifcation’ parade, held on 3rd February, 1996 wherein the witnesses had identifed the accused nos.[1] and 2. On these grounds, the learned counsel for the appellants seek acquittal.

5 Per contra, Mr. Dabke, the learned Additional Public Prosecutor, supports the conviction and sentence.

6 Indisputably, the incident had taken place in a broad day light at 12 noon in Mumbai on the Western Express Highway. Admittedly, neither the complainant had sustained injuries nor scooter was damaged. Panchanama of the scooter fortifes this fact. Accused herein were arrested on transfer warrant on 11th January, 1996 and the test identifcation parade was held on 3rd February, 1996. It may be stated that the Investigating Ofcer did not make any eforts to trace the registered owner of the car, which allegedly dashed the scooter. Likewise the Investigating Ofcer did not bother to examine any person from shop, M/ s. Giriraj Marbles wherefrom witness Mr. Shah had informed the police about the incident. Thus, evidence was not only scanty to establish the alleged ‘robbery’ but in fact renders prosecution case improbable, for want of material evidence.

7 In, so far as the test identifcation, parade is concerned, it was held on 3rd February, 1996, Prosecution had examined Mr. Kamble, Special Executive Magistrate as P.W.3. Evidence of Mr. Kamble clearly suggests that pancha witness, Mr. Rajbali Pande on his instructions went out of parade room to call the witnesses, only after the accused were given position in the row of the suspects in the parade room. As such evidence of Special Executive Magistrate suggests, that there was enough opportunity for the panch witnesses and the complainant to deliberate and inter-act, before the complainant identifed the accused nos.[1] and 2. In view of the evidence of this kind, it is not safe to rely on test identifcation parade, which otherwise is not substantive evidence.

8 In view of the facts of the case and the evidence as discussed above, in my view, prosecution has not proved beyond reasonable doubt that on 9th June, 1995, the appellants committed robbery. As a result, appeal is allowed. Impugned conviction and sentence passed in Sessions Case No.388 of 1997 is set aside. Bail bonds of the appellants are cancelled. Sureties are discharged. Fine amount, if any, paid by the appellants be refunded to them.

9 Both the appeals are disposed of. (SANDEEP K. SHINDE, J.)