Undisputedly, the test identification parade was not conducted, after the arrest of the appellant, in this crime. The police officials identified the appellant for the first time at the time of their respective evidence. As observed above, the police officials had not seen the appellant on the spot. The test identification parade was not conducted. In my view, therefore, the very basis of their identification of the appellant in the Court being one of the member of the naxalite team loses its force. The witnesses have categorically stated that before this incident they had not seen the appellant. I am conscious of the fact that the evidence of the test identification parade is not a substantive piece of evidence. It can be used only as a corroborative piece of evidence to lend an assurance to the statements of the witnesses about the identification of the accused being the perpetrator of the crime at the earliest opportunity. The dock identification of the accused by the witnesses in the given case can be sufficient to establish the identification of the accused. The dock identification of the accused by the witnesses is substantive piece of evidence. However, in such a case, the Court has to be very careful and cautious. The Court must be satisfied that the witness had an opportunity to see the accused on the spot at the time of the commission of the crime. The Court must also be satisfied that the witness has not identified the accused in the Court, being the perpetrator of the crime, for the sake of supporting the case of the prosecution. The evidence of identification of the accused in such circumstances must be beyond doubt. In my view, the evidence of the prosecution witnesses and the attending circumstances, as discussed above, are sufficient to conclude that the appellant was not seen by them on the spot. The appellant was not known to the police officers prior to the occurrence of this incident. In the facts and circumstances, the witnesses were supposed to make a concrete statement for identifying the appellant in the Court at the time of their evidence. {Para 11}
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
Criminal Appeal (Apeal) No. 340 of 2022
Decided On: 30.08.2024
Parvati Vs. State of Maharashtra and Ors.
Hon'ble Judges/Coram:
G.A. Sanap, J.
Citation: MANU/MH/5734/2024.
1. In this appeal, the challenge is to the judgment and order, dated 16.02.2021, passed by the learned Additional Sessions Judge, Gadchiroli, whereby the learned Judge convicted the accused for the offences punishable under Sections 307, 353, 148 read with Section 149 of the Indian Penal Code (for short 'the IPC') and sentenced her to suffer rigorous imprisonment for ten years and to pay a fine of Rs. 10,000/-, in default of payment of fine to suffer rigorous imprisonment for three months for the offence punishable under Section 307 read with Section 149 of the IPC, further sentenced her to suffer rigorous imprisonment for two years and to pay a fine of Rs. 5,000/-, in default of payment of fine to suffer rigorous imprisonment for one month for the offence punishable under Section 353 read with Section 149 of the IPC and she is further sentence to suffer rigorous imprisonment for three years and to pay a fine of Rs. 5,000/-, in default of payment of fine to suffer rigorous imprisonment for one month for the offence punishable under Section 148 of the IPC.
2. The facts are as follows:
PW-1 API Amol Nanasaheb Phadtare, is the informant. He lodged the report on 20.05.2019 at the Police Help Center, Kothi. The case of the prosecution, which can be gathered from the report and other record, is that PW-1 was attached to the Special Task Force, Anti Naxal at Pranhita, Aheri. PW-3 PSI Nilesh Chavan and PW-5 Police Naik Ganpat Soyam were attached to Pranhita. PW-4 PSI Vasudeo Madavi was attached to Kothi Police Help Center. It is stated that on 20.05.2019, they were doing Anti Naxal drive at Koparshi Forest Area. The team consisted of 60 police personnel. They undertook the search operation at Koparshi Forest area. At that time, suddenly there was a firing upon them by the naxalites. They were in a dens forest. They took shelter of the trees and took account of the situation. They were satisfied that it was an act by the naxalites. The naxalites were shouting and giving commands to their members. The police team appealed to the naxalites to surrender. The naxalites, instead of surrendering, continued indiscriminate firing. The police party also started control firing in defence. The firing conducted for 15-20 minutes. On account of the increasing pressure of the police party, the naxalites ran away in the forest. The police team took the search of the spot. They found one pressure cooker, one detonator, wires and blasting material. They brought the material to the police Help Center, Kothi. It was seized.
3. PW-1 lodged the report of the incident at the Police Help Center, Kothi. On the basis of this report, the crime bearing No. 22 of 2019 was registered against the naxalites. PW-8 PSI Raghunath Shinde carried out the investigation. He drew the spot panchanama. He seized the articles. PW-9 PSI Yogesh Bodhgire arrested the accused in this crime on 11.01.2020. The accused was already arrested in Laheri Crime No. 8 of 2017. On the date of the arrest, she was in judicial custody. PW-8 on completion of the investigation, filed the charge-sheet against the known and unknown accused. The appellant/accused was the only accused arrested in this crime and therefore, she was put on trial. The absconding accused, in the crime, have not yet been arrested.
4. Learned Judge framed the charge against the appellant. The appellant pleaded not guilty and claimed to be tried. Her defence is of total denial and false implication. The prosecution in order to prove the charge against the appellant examined nine witnesses. Learned Judge, on consideration of the evidence, convicted and sentenced the appellant as above. The appellant is, therefore, before this Court by way of this appeal.
5. I have heard learned Advocate Mr. H.P. Lingayat for the appellant and learned APP Ms H.S. Dhande for the State. Perused the record and proceedings.
6. Learned Advocate for the appellant submitted that the evidence adduced by the prosecution is not sufficient to prove the charge against the appellant. The appellant was not known to any of the witnesses prior to the commission of the crime. Test identification parade was not conducted. The report lodged by PW-1 is conspicuously silent on the point that the naxalites were seen by them on the spot. Learned Advocate submitted that the evidence of the prosecution on the point of the complicity of the appellant in this crime and her identification is doubtful. Learned Advocate submitted that all the witnesses have improved their statements before the Court and have stated that they had seen the naxalites when they were firing upon them. Learned Advocate submitted that the evidence on record is silent as to the date of the arrest of the appellant in Laheri Crime No. 8 of 2017. In the submission of the learned Advocate the learned Judge, without any concrete, cogent and reliable evidence, has convicted and sentenced the accused. Learned Advocate submitted that from the spot neither the empties nor the fired bullets were recovered. Learned Advocate submitted that the indiscriminate firing between police and naxalites went for 15-20 minutes in the dense forest. It is submitted that the panchanama is silent about the presence of the bullet marks on the trunks of the trees. Learned Advocate submitted that if the police party had seen the naxalites, then the appellant and co-accused would not have survived the attack or a firing made by 60 police officers with sophisticated weapons.
7. Learned APP submitted that the police officers were part of the police team which was undertaking the special anti-naxal drive in the area. There was indiscriminate firing on the police party by the naxalites and therefore, to protect themselves, the police opened the control firing on the naxalites. It is pointed out that the evidence of the police officers is sufficient to prove that despite repeated warnings given to the naxalites by the police, they did not surrender. Learned APP submitted that the evidence on record is cogent, concrete and reliable to prove the incident and the involvement of the appellant in the said incident. Learned APP submitted that the witnesses have categorically stated that they had seen the appellant while firing on the police party. Learned APP, in short, submitted that the learned Judge has taken the entire evidence into consideration and on proper analysis of the same, has recorded the findings against the appellant.
8. I have minutely perused the evidence. The witnesses are the police officers. At this stage, it is necessary to mention the undisputed facts. The occurrence of the incident is not in dispute. The incident occurred in a dense forest. The naxalites were hiding in the forest. PW-1 and the police team was conducting the combing operation in the naxalite affected area. The incident occurred at 7:00 a.m. on 20.05.2019. Nobody from the police party was injured in the incident. Similarly, nobody from the naxalite party was either killed or injured. From the spot, neither the empties nor the fired bullets were recovered. The panchanama is silent about the bullet marks on the trunks of the trees. There is a dense forest on the spot. The distance between the police party and naxalites on the other side is not mentioned. It was not stated in the report lodged by PW-1 that he had seen all the naxalites on the spot. The facts recorded in the panchanama, if considered in a proper perspective would show that any evidence of indiscriminate firing by the naxalites and police party on each other was not found on the spot. The test identification parade of the appellant was not conducted after her arrest. The date of her arrest in Laheri Crime No. 8 of 2017 has not been placed on record. The appellant was arrested when she was in judicial custody in another crime. The incident occurred on 20.05.2019. The Laheri crime was registered in 2017.
9. The evidence adduced by the prosecution needs minute scrutiny in the backdrop of the above stated admitted facts. Perusal of the evidence of the police officers PW-1, 3, 4 and 5 would show that at the time of lodging of the report and at the time of recording of their statements they had not stated that at the time of the incident they had seen the naxalites, including the appellant. In my view, this statement has been proved to be an omission. It is therefore apparent that these witnesses have improved their version before the Court. In my view, the case of the prosecution and the evidence of the witnesses cannot be believed.
10. It has come on record that the spot is in dense forest. The naxalites were hiding in the dense forest. It has come on record in the evidence of PW-1 and other witnesses that while doing the search operation at Koparshi forest area, suddenly there was firing upon them. The firing was done by the naxalites. They have stated that they took shelter of the trees and confirmed that the firing was initiated by the naxalites. They have stated that at that time the naxalites were shouting and giving commands to the members of their groups for firing on the police. The witnesses have stated that when the naxalites did not respond to their appeal to surrender, they opened the control firing on them in defence. The firing continued for 15-20 minutes. The naxalites, looking at the increasing pressure of the police, ran away in the forest. If the police team had seen any naxalite, then the said naxalite would not have survived. The police team was comprised of 60 police personnel. They were carrying sophisticated weapons, arms and ammunition. If the police had seen any naxalite on the spot, then the police team members would have riddled the said naxalite with bullets. It is stated that not a single naxalite was either injured or dead. Similarly, nobody from the police party was injured. The facts recorded in the panchanama show that there was no evidence on the spot about the indiscriminate firing by two groups on each other. This fact would show that the evidence of the police officers that they had seen naxalites on the spot cannot be believed. If the police and naxalites had fired indiscriminately upon each other, then the empties of the fired bullets as well as the fired bullets would have been found on the spot. Some of the bullets would have been found stuck in the trunks of the trees on the spot. In my view, this is a very vital circumstance in this case for the purpose of deciding the credibility and trustworthiness of the evidence of the witnesses.
11. Undisputedly, the test identification parade was not conducted, after the arrest of the appellant, in this crime. The police officials identified the appellant for the first time at the time of their respective evidence. As observed above, the police officials had not seen the appellant on the spot. The test identification parade was not conducted. In my view, therefore, the very basis of their identification of the appellant in the Court being one of the member of the naxalite team loses its force. The witnesses have categorically stated that before this incident they had not seen the appellant. I am conscious of the fact that the evidence of the test identification parade is not a substantive piece of evidence. It can be used only as a corroborative piece of evidence to lend an assurance to the statements of the witnesses about the identification of the accused being the perpetrator of the crime at the earliest opportunity. The dock identification of the accused by the witnesses in the given case can be sufficient to establish the identification of the accused. The dock identification of the accused by the witnesses is substantive piece of evidence. However, in such a case, the Court has to be very careful and cautious. The Court must be satisfied that the witness had an opportunity to see the accused on the spot at the time of the commission of the crime. The Court must also be satisfied that the witness has not identified the accused in the Court, being the perpetrator of the crime, for the sake of supporting the case of the prosecution. The evidence of identification of the accused in such circumstances must be beyond doubt. In my view, the evidence of the prosecution witnesses and the attending circumstances, as discussed above, are sufficient to conclude that the appellant was not seen by them on the spot. The appellant was not known to the police officers prior to the occurrence of this incident. In the facts and circumstances, the witnesses were supposed to make a concrete statement for identifying the appellant in the Court at the time of their evidence.
12. PW-5 Police Naik Ganpat Soyam, in his cross- examination, has stated that the police maintain photographs of the suspicious persons. He has categorically stated that the photographs of the naxalites are kept at police headquarters. He has stated that the police obtain photographs of naxalites from their houses. In his cross-examination, at para No. 3, he has stated that there was an identification parade of Parvati, the appellant, at the office of Pranhita Additional S.P. In my view, the evidence on record is not sufficient to prove the presence of the appellant on the spot. The evidence is not sufficient to prove that this witness had seen her on the spot.
13. As stated by the witnesses, the naxalites were firing by hiding in the dense forest. It is not possible to accept the evidence of the prosecution that in such indiscriminate firing by them on the naxalites, the naxalites came in the open and therefore, they could see them. If the 60 police personnel with sophisticated arms and ammunition had seen the naxalites within the range, then they would have riddled those naxalites with the bullets. In my view, therefore, the evidence on record is not sufficient to prove the involvement of the accused/ appellant in this crime. The identification of the appellant, being the naxalite involved in the incident, has not been proved. The evidence is not at all believable. The account of the incident narrated vis-à-vis the involvement of the appellant in this crime is totally unbelievable. The police officers, on arrest of the appellant in another crime, have involved her in this case. It is seen that in the report PW-1 has stated the names of 18 naxalites who had fired on the police. There is no basis for mentioning these names. It appears that these names have been stated in the FIR on the basis of the available record with the police with regard to the naxalites operating in the area. Learned Judge, in my view, has failed to properly appreciate the evidence. The evidence is not sufficient to prove the charge against the appellant. The appellant, therefore, deserves to be acquitted.
14. The criminal appeal is allowed.
15. The judgment and order of conviction and sentence of the appellant/accused dated 16.02.2021 passed by learned Additional Sessions Judge, Gadchiroli for the offences punishable under Sections 307, 353, 148 read with Section 149 of the Indian Penal Code is quashed and set aside.
16. The appellant/accused is acquitted of the offences punishable under Sections 307, 353, 148 read with Section 149 of the Indian Penal Code.
17. The appellant, who is in jail, shall be released forthwith, if not required in any other case.
18. The criminal appeal stands disposed of, accordingly. Pending applications, if any, stand disposed of.
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