PRAKASH W MUDRAS Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE applicant has been arrested in C.R. No. 287/95 among others for the offences of murder. It is the case of the prosecution that on 11th December, 1995, the deceased was sitting on a marble otla beside the entrance gate of Hotel Al-Haram. His friend was sitting nearby. 5 or 6 un-known persons holding deadly weapons, such as pistols, mouser, approached the deceased. Two of them are said to have fired at the deceased. As a result of these injuries, the victim was declared dead. The application for bail was moved in the Sessions Court, Gr. Bombay, by two of the six persons. One Khalil A. Parkar has been ordered to be released on bail by order of the Court dated 3rd July, 1996. Bail was, however, rejected to the present applicant.

(2.) THE counsel for the applicant has vehemently argued that the only evidence connecting the applicant with the crime is the identification. It is submitted that since the assailants were un-known to the deceased and his friend, necessarily and identification parade has to be held. He submits that this identification parade cannot be used in evidence as it is vitiated by wholesale infringement of the guidelines issued by this Court for conduct of the identification parade. He submits that three suspects including the applicant were put in one single parade. According to the Criminal Manual, no more than two accused persons should be included in an identification parade. He further submits that for one accused there should be six dummies and for two accused there should be 10 dummies. In the present case, three accused persons were in the parade and only 12 dummies were used. He submits that the officer conducting the parade neither acquainted himself with the facts of the case, nor did he go to visit the suspects to select the dummies, who are similar in appearance. It is also stated that the applicant was arrested on 28th December, 1995. The identification parade was held on 7th March, 1996. The delay is not explained by the prosecution. Further more, he submits that the possibility of the applicant having been seen by one of the identifying witnesses cannot be ruled out. Relying on two Division Bench Judgments of this Court, the learned counsel submits that this ground is sufficient at this stage to entitle the application to the concession of bail. The learned counsel relies on 1996 Cri.L.J. 1854 (Vilas Vasantrao Patil v/s. The State of Maharashtra). In this case, this court has held that the instructions contained in Criminal Manual issued by the High Court for conducting identification parade are not statutory but have been consistently followed to ensure a fair and unassailable identification parade. He submits that the infirmities in holding of the identification parade brings the case of the applicant squarely within the ratio of this case. The learned counsel also relied on another Division Bench Judgment of this Court in 1995 Cri.L.J. 4048 (Ramcharan Bhudiram Gupta V/s. The State of Maharashtra). In that case, this Court has held as follows:

(3.) THE learned A.P.P. appearing for the State, however, submitted that the evidence of the identification parade cannot be discarded at this stage. He further submitted that at this stage the Court would not be justified in evaluating the probative value of the evidence. He submits that these are the matters which will be taken into consideration at the time when the final judgment is given. Even otherwise, the counsel submits that there is no infirmity in holding the identification parade.