IBRAHIM SHAIKH Vs. STATE OF GOA

JUDGEMENT

(1.) THE appellants are convicted the IInd Additional Sessions Judge, Panaji, in S. C. Case No. 37/2000 for offence punishable under Section 395 of the Indian Penal Code and are sentenced to suffer Rigorous Imprisonment for a period of six years and to pay a fine of Rs. 5000/?, in default to suffer Rigorous Imprisonment for a further period of one month. The appellants are original accused nos. 2 and 4. Being aggrieved by the Judgment and Order of the IInd Additional Sessions Judge, Panaji, the prosecution case in brief is that on 18 ?3 ?2000 between 00. 30 hours to 2. 30 hours the accused entered the house of the complainant and committed dacoity after tying the hands and legs of the occupants of the house and ran away after taking the gold ornaments and cash worth Rs. 1,46,000/?. A complaint was lodged in the morning at 5. 30 a. m. and an offence was registered against 8 unknown persons. The accused were thereafter arrested. The Investigating Officer recorded the statement of the witnesses. Recovery of Rs. 19,000/? and gold ornaments of some of the accused was recovered. Similarly a gupti which was used in the commission of the offence was recovered was recovered by accused No. 2. Test Identification Parade was held in which the eye witnesses identified the accused. A charge ?sheet was filed against the accused. The Sessions Judge framed charge against the accused who pleaded that they had not committed the said offence. The trial Court on the basis of the evidence adduced by the prosecution convicted the accused under Section 395 of the Indian Penal Code.

(2.) ORIGINAL accused Nos. 3 and 5 had filed a Criminal Appeal separately which was heard by this Court and this Court was pleased to confirm the Judgment and Order of the trial Court. Against the said Judgment and Order passed by this Court against accused Nos. 3 and 5 they have preferred a Special Leave of the Order of the Supreme Court. The present appeal swere filed separately and, therefore, both appeals could not be heard together.

(3.) I have heard the learned Counsel appearing on behalf of the appellants and the learned Public Prosecutor appearing on behalf of the State at length. The learned Counsel appearing on behalf of the appellants has taken me through the evidence adduced by the prosecution as also the Judgment and Order of the trial Court. The learned Counsel appearing on behalf of the appellants submitted that the eye witnesses which have been examined by the prosecution, namely, P. W. 1, Sadashiv Vishnu Prab hu Tendulkar, P. W. 2, Somnath Babolkar, P. W. 3, Shalini Tendulkar and P. W5, Prakash Gaonkar have made material improvements in their evidence in respect of a very important fact and on this ground intself their testimony is liable to be discarded. The learned Counsel submitted that all these witnesses have submitted that P. W. 1, Tendulkar, P. W. 2, Dabolkar and P. W. 3, Shalini Tendulkar have stated in their evidence that all the accused persons had covered their faces with masks which after some time were partially lowered during the course of dacoity and, therefore, they had an occasion to see the face of all the accused. The learned Counsel submitted that this fact was conspicuously absent when their statement was recorded by the Investigating Officer. He submitted that this fact was brought to the notice of the witnesses. They could not give any plausible explanation as to why this fact did not appear in the statement which was recorded by the Police. He, therefore, submitted that the testimony of these witnesses could not be relied upon for the purpose of coming to the conclusion that the accused nos. 2 and 4 were present appellants herein and were also present when the said offence was committed. The learned Counsel thereafter submitted that the Test Identification Parade was also not held in accordance with the guidelines which have been framed pursuant to thedirections which have been given by this Hon'ble Court and, therefore, the Test Identification Parade itself cannot be relied upon. He further submitted that before the Test Identification Parade was held, accused No. 2 was taken to the house of the complainant and the gupti was recovered at this instance from the house. He submitted that the Investigating Officer and the panch witness have stated in their evidence that when accused no. 2 was taken to the house his face was not covered and he was seen by P. W. 1, Sadashiv Tendulkar and the other occupants of the house. He submitted that, therefore, the entire exercise of holding a Test Identification Parade was merely a farce. The accused no. 2 was seen by the witnesses before the Test Identification Parade was held. He also submitted that in the evidence of the Mamlatdar who held the Test Identification Parade it could be seen that at the site and place where the Test Identification Parade was held Police Officers were present and, therefore, a serious doubt is raised regarding the authenticity of the Test Identification Parade. The learned Counsel appearing on behalf of the appellants further submitted that the Investigating Officer also admitted in his evidence that P. W. 1, Sadashiv Tendulkar, P. W. 2, Somnath Dabolkar and P. W. 3, Shalini Tendulkar have not stated to the Police Officer that the mask which was worn by the accused was lowered during the course of the dacoity. It is, therefore, submitted that the prosecution had not proved the case beyond reasonable doubt and the accused were entitled to be acquitted. It issubmitted that the trial Court had not appreciated the evidence in its proper perspective and, therefore, the finding of the trial Court was to be set aside.