Case Note & Summary
The appeal was filed by two convicts against the judgment and order dated 25 April 2022 passed by the Special Judge (Exclusive Special Court constituted for cases under MCOCA/TADA/POTA and other Sessions Cases against accused Rajendra Sadashiv Nikalje @ Chhota Rajan) at Greater Bombay in Sessions Case No.187 of 2011 arising out of CBI RC-3(S)/2016-SCUV/SC-II, New Delhi. The appellants were convicted for offences under Sections 302, 307, 326, 120-B, 34 of the Indian Penal Code, 1860 and Section 27 of the Indian Arms Act, 1959. They were sentenced to life imprisonment for two murders, eight years for attempt to murder, five years for causing grievous hurt, and four years under the Arms Act, all sentences to run concurrently. Three co-accused were acquitted by the same judgment. The prosecution case was that on 13 February 2010, the first informant Mohd. Asif Mohd. Rafiq Khan was sitting with Naushad Qureshi and Mohd. Irfan Qureshi outside a shop at Dharmashi Street, Phool Galli, when four persons arrived and opened fire. The informant sustained a bullet injury on the left side of his chest, while Shakil Ibrahim Modak and Mohd. Irfan Qureshi died from bullet injuries. A bystander, Smt. Gangubai Eknath Sonawane, also sustained a bullet injury. An FIR was registered at Sir JJ Marg Police Station as C.R. No.26 of 2010 against four unknown persons under Sections 307, 34 IPC and Sections 3, 25, 27 of the Arms Act. The investigation was later transferred to DCB CID, Unit 1, Mumbai. The appellants were first arrested on 23 October 2010 in another case by PSI Anil Gangawane. The second appellant gave a disclosure statement leading to the recovery of a weapon and four live cartridges under Section 27 of the Indian Evidence Act, 1872. They were formally arrested in the present crime on 12 November 2010. A Test Identification Parade was conducted on 15 December 2010 at Mumbai Central Prison. After completion of investigation, a charge sheet was filed, and charges were framed on 25 January 2017 under the IPC, Arms Act, and Section 37(1)(a) of the Maharashtra Police Act. The prosecution examined 37 witnesses; the defence led no evidence. The accused denied all charges and claimed false implication. The principal legal issue before the High Court was whether the identification of the appellants by the injured eyewitness PW/1 was reliable and whether the delay in conducting the TIP vitiated the identification. The appellants' counsel argued that the witness was semiconscious at the time of statement, had described only one person, and that the TIP was delayed and hence fatal. The prosecution countered that the delay was reasonable, calculated from the date of arrest, and that the witness had attributed specific roles and identified the appellants in court. The High Court analysed the testimony of PW/1, the injured eyewitness, and found it consistent, cogent, and unshaken in cross-examination. It noted that the witness had clearly identified the appellants in the TIP as well as in court. Regarding the delay in TIP, the court observed that it must be computed from the date of arrest, not the incident. The TIP was conducted within about a month of arrest in the present case, which was not unreasonable. The court also found that the TIP procedure complied with the Criminal Manual, as corroborated by the Executive Magistrate PW/21. The final operative part of the judgment was not provided in the excerpt, but the court's reasoning suggested that the conviction was being upheld based on the reliability of the eyewitness testimony and the validity of the identification parade.
Headnote
A) Evidence - Test Identification Parade - Delay in TIP - Indian Evidence Act, 1872, Section 9 - Delay in conducting TIP must be calculated from the date of arrest of the accused and not from the date of incident; appellants were arrested on 12 November 2010 in the present case and TIP was conducted on 15 December 2010, which is not unreasonable delay; held that delay in TIP is not fatal and does not vitiate identification (Paras 6-7). B) Criminal Trial - Eyewitness Testimony - Injured Witness - Indian Penal Code, 1860; Indian Evidence Act, 1872 - Testimony of injured eyewitness PW/1 was consistent, cogent and withstood cross-examination; no reason to disbelieve; held that evidence of injured eyewitness can form basis for conviction (Paras 4-5). C) Criminal Trial - Identification - TIP Procedure - Criminal Manual - Executive Magistrate PW/21 deposed about procedure; sequence narrated by PW/1 in consonance with prescribed procedure; no procedural violation in conduct of TIP (Para 7).
Issue of Consideration
Whether the conviction of the appellants is sustainable based on the testimony of the injured eyewitness PW/1 and whether the delay in conducting the Test Identification Parade vitiates the identification.
Final Decision
Decision not clearly stated
Law Points
- Legal points not extracted
- Reliability of injured eyewitness testimony
- Delay in test identification parade not fatal if calculated from date of arrest
- Substantive evidence of identification in court
- Compliance with Criminal Manual for TIP procedure
