SHEIKH RASHID Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The appellant has been convicted by the learned Ad- hoc Additional Sessions Judge-1, Nagpur for the offences punishable under Sections 452 and 395 of the Indian Penal Code. He has been sentenced to suffer R.I. for 10 years and to pay a fine of Rs. 3000/-, in default S.I. for six months for the offence punishable u/s. 395 of the I.P.C. He has been sentenced to suffer R.I. for five years and to pay a fine of Rs. 1000/-, in default, S.I. for three months for the offence punishable u/s. 452 of the I.P.C. The incident in question had occurred on 16th February, 2004 when the appellant and the accused Nos. 1, 2, 3 and 5 had allegedly committed criminal trespass at the house of PW 3- Dayaldas Dhanrajani and had committed dacoity in respect of cash and jewellery worth about Rs. 41,000/-. The matter was, however, not reported to police. The matter was reported to police on 12th July, 2004 i.e. after about five months. The F.I.R. came to be registered only after the arrest of accused Nos. 3 and 4 who have been acquitted by the trial Court. It is the case of the prosecution that when accused Nos. 3 and 4 were in custody in connection with some other case, the involvement of the said accused in the present case was also revealed. Accused Nos. 3 and 4 were taken to the house of PW 1-Dayaldas. P W 1 had identified accused No. 4 and thereafter F.I.R. was recorded. Rest of the accused were arrested later on. The identification parade was held. Some of the property has also been recovered during the course of investigation. The prime question before the trial Court during the course of hearing was in respect of delay in lodging the F.I.R. and identification of the appellant. The trial Court has accepted the explanation of PW 1 -Dayaldas that he did not lodge report because of fear. This explanation, in my opinion, should not have been accepted by the learned trial Court. The learned trial Court should have taken note of the fact that accused Nos. 3 and 4 were taken to the house of PW 1-Dayaldas, before recording the F.I.R. The F.I.R. was recorded at Indora outpost of Jaripatka Police Station after identification of accused No. 4 by PW 1-Dayaldas at his residential house at Jaripatka. This is absolutely a novel method adopted by the police for registration of the offence.

(2.) As far as the identification of the appellant is concerned, the learned trial Court has accepted the contention of defence that accused Nos. 1, 2, 4 and 5 were wearing scarves and, therefore, their identification parade in the Court is of no use. As far as the appellant is concerned, the learned trial Court has stated that since the appellant was not wearing any scarf and the PW 1 had occasion to see him from very close quarters at the time of incident, the identification of the appellant was valid.

(3.) I have carefully gone through the evidence of prosecution, particularly PW 1 -Dayaldas and the Investigating Officer. It has come on record that the appellant was shown to PW 1 even before recording of the F.I.R. PW 1 in his evidence has stated that Crime Branch Officers had arrested some offenders after about five months of the incident and two of them were brought to his house. The police had asked PW 1 to identify the persons who were involved in the dacoity. PW 1 had identified one of them. PW 7, who is the Investigating Officer, has also stated that during the course of investigation in Crime No. 2011/2003 the involvement of the appellant was revealed and that appellant was taken to the house of PW 1 at Jaripatka. PW 7 has stated that they had made inquiries from PW 1 as to whether any incident of dacoity had taken place at his house. It was revealed by PW 1 that dacoity had taken place about five months ago. PW 7 has specifically stated that the appellant and other accused were sitting in the police jeep and they were not taken to the house of PW 1. However, the complainant/PW1 wanted to see the arrested accused. It is stated by PW 7 that the appellant was shown to PW I on his request. The fact remains that the appellant was shown to the PW 1 even before recording of the F.I.R. As such, the evidence with regard to identity of the appellant is highly questionable. In my opinion, the learned trial Court should not have relied upon such an evidence for convicting the appellant for such a serious offence. Since there was an inordinate delay in lodging the F.I.R; since the F.I.R. has been lodged at the instance of the police and since the appellant was shown to the eye witness even before recording of the F.I.R., the conviction, in my opinion, cannot be sustained Hence, I pass the following order: