It is settled principle of law that in case of identification of a stranger by victim, the victim should get sufficient time and opportunity of seeing the culprit and thereafter impressing his features, identification, marks, in his memory so as to allow him to recollect it at the time of test identification parade and thereafter in the court. In the present case, the prosecution witnesses have admitted in the evidence that the said alleged raid was all of sudden, and they were frightened at the time of incident. The evidence on record shows that, those persons were surprised as per prosecution case when the incident took place and even as per prosecution case, things were happening in such a quick succession that it was impossible that they could impress features of culprits in their memory, so as to allow them to recollect it at the time of identification parade and thereafter, to identify the culprits in the Court when the witnesses were giving evidence on oath.
7. When the incident took place suddenly, in a surprising way and the victims were is frightened, it is difficult for them to maintain balance and become alert to grasp the features of the culprit. If he happens to be a person well acquainted with the victim, such circumstance may not weigh much against his identification, but when that the culprit is stranger to the victim, effect of surprizedness in which the victim has been caught, coupled with frightenedness are the factors which go against capacity of such witnesses identifying said person, after gap of even couple of days.
Bombay High Court
Rajeshkumar Babulal Sharma vs State Of Maharashtra on 31 August, 2001
Equivalent citations: 2002 (1) MhLj 484
Bench: J Chitre
1. Shri Arfan Salt for the appellant and Shri Pravin Singhal for the prosecution. Both of them have been heard in contexts with the judgment assailed, and the evidence on recorded referred to.
2. Prosecution case in brief is that P. W. Subhash Dinkar Kumbhar, G. C. Pandey, J. D Doke, N. L. Shinde, Laxman Gate and Jayant Pandey were present in the Lottery Shop, situated at Princes Street, Mumbai, owned by Pankaj Mohanlal Mehta on 24th February 1997 at about 9 a.m. The prosecution alleged that Appellant with other co-accused visited said Shop armed with different weapons. Out of them, as per prosecution case, the present Appellant was possessing a Chopper. Prosecution alleged that, the present appellant, and other co-accused, robbed those prosecution witnesses of the wrist watches which they were wearing on their wrists and took away sum of Rs. 28,000/ and some lottery tickets, by threatening those persons of assault by using the weapons named above. A report was submitted in the police station. The investigation started. During the course of the investigation on 25-2-1997 P.S.I. N.A.R. Khan received telephone call by which he was informed that some unknown persons were sitting at a spot commonly known as "Bhaucha Dhakka". He went to the said spot with Police Constable Bk. No. 34907 and by seeing the police officer and the constable, as per prosecution case those persons started running away. Therefore Police Constable Sonawane caught them. Their persons were searched. Co-accused Shahadatta was found in possession of one plastic bag which-was containing following articles:
1. Toy revolver.
2. Cash of Rs. 14,055.25.
3. Two Wrist Watches.
4. Some lottery tickets.
5. Visiting cards.
6. A torn currency note of Rs. 10/- denomination.
Those articles were seized under panchanama Exh. 17.
3. Test Identification Parade was held, by Special Executive Magistrate Shri Vichare, P.W.9. on 28-2-1997, in which the above said employees of Mehta who have been examined as prosecution witnesses identified the present Appellant and other co-accused. As per prosecution case the appellant was holding a chopper at the time of said incident.
4. Shri Sait, the learned Counsel appearing for the Appellant submitted vehemently that the Appellant has been falsely implicated in the present prosecution case and has been convicted and "sentenced by learned Trial Judge without there being any evidence to sustain the conviction and sentence. He submitted that the prosecution witnesses did not have sufficient opportunity of identifying the present Appellant as one of the robbers. He further submitted that no incriminating article has been seized from the present Appellant and therefore, fact, prosecution witnesses identifying him in the said identification parade, cannot be treated to be a ground for convicting and sentencing the present Appellant. He submitted that he be acquitted.
5. Shri Singhal the learned Prosecutor appearing for the prosecution vehemently justified the order of conviction and sentence as proper, correct and legal. He submitted that the prosecution witnesses had sufficient opportunity to see the Appellant, as one of the culprits and the identification was held within short span of time from the date of incident and therefore, the learned Judge was right in convicting him and thereafter sentencing him. He pointed out that the Appellant ran away after seeing the police and that shows his guilty mind: He submitted that said circumstance, needs to be considered along with other evidence.
6. It is settled principle of law that in case of identification of a stranger by victim, the victim should get sufficient time and opportunity of seeing the culprit and thereafter impressing his features, identification, marks, in his memory so as to allow him to recollect it at the time of test identification parade and thereafter in the court. In the present case, the prosecution witnesses have admitted in the evidence that the said alleged raid was all of sudden, and they were frightened at the time of incident. The evidence on record shows that, those persons were surprised as per prosecution case when the incident took place and even as per prosecution case, things were happening in such a quick succession that it was impossible that they could impress features of culprits in their memory, so as to allow them to recollect it at the time of identification parade and thereafter, to identify the culprits in the Court when the witnesses were giving evidence on oath.
7. When the incident took place suddenly, in a surprising way and the victims were is frightened, it is difficult for them to maintain balance and become alert to grasp the features of the culprit. If he happens to be a person well acquainted with the victim, such circumstance may not weigh much against his identification, but when that the culprit is stranger to the victim, effect of surprizedness in which the victim has been caught, coupled with frightenedness are the factors which go against capacity of such witnesses identifying said person, after gap of even couple of days.
8. In the present case no incriminating article has been seized from the possession of the present Appellant. Only circumstance which has been brought forth by the prosecution and relied on in Judgment of the learned Judge which has been assailed by this appeal is that he was found in the company of Shahdatta when P. S. I. Khan raided the spot where Shahdatta and his companions were allegedly sitting. Another point which has been brought forth by the prosecution is that at that time he started running away. It is a matter of common experience that even innocent persons run away after seeing incoming and running policemen. There may be other factors also which may make person to run away after seeing the police. Nothing is on record to show that P. S. I. Khan and his colleagues were not in uniform at the time of said raid. The said circumstance alone cannot be treated to be sufficient evidence for basing a conviction in criminal case.
9. The learned Trial Judge has committed error in appreciating the evidence and basing his conclusions. The conclusion drawn by him against the present Appellant in his judgment are not fortified by the evidence on record. Therefore his decision to hold the Appellant guilty for committing the offences punishable under the provisions of sections 342, 392, 397, 452 read with 34 of Indian Penal Code is obviously improper, incorrect and bad in law. Therefore, this appeal will have to be allowed and the said order of conviction and sentence passed against the appellant will have to be quashed.
10. Thus the appeal stands allowed and the order of conviction and sentence passed by the learned Trial Judge against, the appellant stands set aside and appellant stands acquitted.
11. He be set at liberty forthwith, if not required in any inquiry, investigation, proceeding or trial.
12. Appeal allowed.
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