Page 1

1

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL  NOS. 345-346  OF  2012

STATE OF MAHARASHTRA         APPELLANT(S) :VERSUS:

SYED UMAR SAYED ABBAS & ORS. RESPONDENTS

J U D G M E N T

Pinaki Chandra Ghose, J.

1. These appeals, by special leave, have been directed against  

the  judgment  and order  dated 15.9.2009 passed by the  High  

Court of Judicature at Bombay in Criminal Appeal No.1133 of  

2003 and Criminal Appeal No.1156 of 2003, whereby the High  

Court  allowed  the  criminal  appeals  filed  by  the  respondents  

herein and acquitted them.

2. The brief facts necessary to dispose of  these appeals are  

that on 12.8.1995, at about 3.00 P.M., Rajendra Rajaram Gupta  

(deceased),  who was a social worker belonging to a particular  

political party and had a shop in Mahim area of Mumbai, was  

sitting in Ganesh festival Pandal and was busy talking with one  

Rajaram  Sarfare  (PW6-injured  eye-witness),  who  was  the  

Contractor for decoration of the Ganesh festival Pandal. As per

Page 2

2

the prosecution story, when Rajendra Rajaram Gupta and PW-6  

were talking to each other while sitting on chairs in the Pandal,  

two unknown persons entered the Pandal from Kapad Bazaar  

Road,  opened  fire  on  Rajendra  Rajaram  Gupta  and  pumped  

many bullets in his head, chest and various parts of his body at  

point  blank  range.  Allegedly,  the  said  two  assailants  were  

escorted  by  three  other  persons.  The  firing  noise  created  

commotion in the Pandal and while PW6 tried to run, he was  

also hit by one bullet and he fell down. The assailants managed  

to escape. The deceased Rajendra Rajaram Gupta was taken to  

Hinduja Hospital immediately, where he was declared dead on  

arrival. The FIR came to be immediately lodged at 4:15 P.M. by  

one  eyewitness  Rajesh  Tanaji  Akre  (PW-5),  who  happened  to  

have  seen  the  incident  from  the  first  floor  gallery  of  his  

residential building which was abutting to the said Pandal.

3. After  investigation,  charges  were  framed  against  13  

accused persons (Accused Nos.1 to 13) under Sections 302, 307,  

120B  read  with  Section  34  of  the  Indian  Penal  Code,  1860  

(hereinafter referred to as “IPC”) and Sections 25, 27, and 29 of  

the  Arms Act,  1959.  Accused Nos.2,  5,  6,  8,  10 and 13 had  

either died or were absconding during the trial. Hence, the trial

Page 3

3

proceeded against the remaining accused i.e. Accused Nos.1, 3,  

4, 7, 9, 11 and 12.

4. The  Trial  Court  by  its  judgment  and  order  dated  

23.07.2003 convicted Accused Nos.1, 3, 4, 9 and 12 for offences  

punishable under Sections 302 and 307 read with Section 120-B  

of the IPC. Accused Nos.1, 3, 4 and 12 were also convicted for  

the  offence  punishable  under  Section  27  of  the  Arms  Act,  

whereas  Accused  No.9  was  also  convicted  for  the  offence  

punishable under Section 25 of the Arms Act. Original Accused  

Nos.7 and 11 were acquitted of all the charges. The High Court  

vide the impugned judgment acquitted all the accused of all the  

charges by overturning the judgment of the Trial Court.

5. The State of Maharashtra has filed these appeals against  

the  acquittal  of  Accused  Nos.1,  3,  4,  9  and  12.  Learned  

Additional  Government  Advocate  appearing  for  the  State  of  

Maharashtra has inter alia reiterated that the judgment of the  

Trial  Court is well  reasoned and well  considered. The learned  

counsel for the respondents have rebutted the submissions of  

the appellant by relying upon the judgment of the High Court  

pressing  that  it  had  gone  deeper  into  the  case  that  the  

prosecution could not bring home the charges levelled against

Page 4

4

the accused.

6. The Trial Court convicted the accused respondents on the  

basis  of  the  testimonies  of  five  eye-witnesses  -  Hemant  

Parshuram  Akre  (PW1),  Ganesh  (PW4),  Rajesh  Tanaji  Akre  

(PW5),  Rajaram Sarfare  (PW6)  and Kishor  Maniklal  Damaniya  

(PW7), out of which PW6 was the injured eye-witness. The Trial  

Court found their depositions to be corroborative of each other  

and also in tandem with the testimonies of PW18 and PW21, the  

Special  Executive  Magistrates,  who  conducted  the  Test  

Identification Parade of the accused. The Trial Court held that it  

was conclusively established by the Test Identification Parade  

and eye-witness testimonies that A1 and A12 had fired on the  

deceased.  The recovery of  the weapon along with the ballistic  

report further strengthens the conclusion. The Trial Court found  

that  the  prosecution  has  proved  its  case  beyond  reasonable  

doubt  and  hence  the  accused  were  convicted  of  the  offences  

charged after being found guilty.

7. However, the High Court pointed out serious lacunae in the  

above  said evidences  and hence  the  conviction order  was set  

aside and the benefit  of doubt was given to the accused. The

Page 5

5

High  Court  is  of  the  view  that  the  Trial  Court  had  placed  

unwarranted  reliance  on  the  Test  Identification  Parades  in  

arriving  at  the  guilt  of  the  accused  when  the  same  suffered  

major  discrepancies  along  with  the  inconsistencies  of  the  

depositions of the eyewitnesses to that of the injured eyewitness’  

testimony.

8. We have perused the documentary and oral evidences on  

record and gone through the submissions of both - the appellant  

State as well as the respondents. We shall now examine each  

and every contention in light of the arguments adduced before  

us in the Court. In our considered view, the main issue in the  

case  is  whether  the  identity  of  the  accused  was  properly  

established with the aid of the testimonies of the eyewitnesses  

and  whether  the  Test  Identification  Parades  were  conducted  

properly. All the other evidences are secondary and need to be  

examined only  if  the  accused can be  linked to  the  crime.  To  

decide  the  same we shall  analyse the depositions  of  the  eye-

witnesses.

9. There  are  five  eye-witnesses,  including  the  injured  eye-

witness.  We  shall  peruse  their  statements  one  by  one.  PW1  

allegedly recognized two persons, who shot at the deceased and

Page 6

6

the injured PW6, as A1 and A12, but his evidence suffers few  

infirmities. He stated that he first heard some shots and then  

some noise like bursting of  firecrackers and saw the accused  

firing at PW6 when he was running towards the Police Chowky  

nearby. The major inconsistency is with respect to his deposition  

regarding the Test Identification Parade. He stated that in the  

Test  Identification Parade held  on 30.8.1995,  at  Arthur  Road  

Prison,  he  had  identified  four  persons  out  of  10-12  persons  

standing  in  the  row.  According  to  the  prosecution,  the  Test  

Identification Parade was conducted by PW21 (Special Executive  

Officer) on 30.9.1995. Even if it is presumed that the date was  

stated to be incorrect by mistake, the fact remains that PW21  

deposed that he conducted 2 Test Identification Parades on that  

day. In the first Parade, he placed A1 and one more accused who  

died  later  and  in  the  second,  he  placed  A3  and  A4  for  

identification. At no point of time, 4 accused were put together  

for identification for PW1 to identify out of the whole group. This  

contradiction shows that it is not clear as to whether he rightly  

identified the accused. Also, he stated that in another parade  

held  after  almost  a  year,  he  identified  A12.  That  parade was  

conducted by PW18 (another Special Executive Officer). We are

Page 7

7

aware that  A12 was arrested by the first  week of  September,  

1996 and thus the Test Identification Parade was conducted on  

4.10.1996, but it is too large a gap for PW1 to have remembered  

his face.  

10. Also,  PW1  had  stated  that  he  had  seen  the  deceased  

receiving a bullet injury on his forehead but as per the post-

mortem  report,  there  was  no  injury  on  the  forehead  of  the  

deceased as he had been attacked from behind. This makes the  

testimony of PW1 even more vulnerable.

11. We now proceed to  peruse  the  evidence of  PW4 another  

eye-witness, who was the son of the deceased and was sitting in  

his grocery shop at the time of  the incident and was making  

payment  to  one  Bhatia  who  was  not  examined  by  the  

prosecution.  Even  PW4  heard  the  noise  of  bursting  of  some  

crackers  and  then  he  could  see  what  was  happening  in  the  

Pandal and he recognized A1 in the parade conducted by PW21  

on 30.9.1995 and A12 in the  parade conducted by  PW18 on  

4.10.1996.

12. PW5 is the first informant who stated that he witnessed the  

incident while he was standing in the first floor gallery of his

Page 8

8

building which was abutting the Pandal. He also deposed that he  

had  identified  A1  and  A12  in  the  Test  Identification  Parades  

conducted by PW21 and PW18, respectively. But it is not clear  

whether he could have witnessed the incident from the first floor  

as the setting up of the Pandal was completed and the work of  

putting  tarpaulin  over  the  Pandal  was  done  and  only  the  

decoration of the frill was going on. It is also pertinent to note  

that PW5 deposed before the Court that he does not remember  

the physical appearance of both the suspects seen by him on the  

date  of  incident.  It  is  doubtful  whether  PW5  could  have  

witnessed the incident in the state of commotion when everyone  

was running for shelter due to firing.

13. PW6  is  the  injured  eye-witness  who  sustained  bullet  

injuries. He deposed that he could not see any of the accused  

and while he was talking to the deceased, he received a bullet  

injury and fell  unconscious. He stated nothing about the fact  

that he was running to the Police Chowky when he got injured.  

To that extent his testimony does not support the case of the  

prosecution as the other prosecution witnesses stated that they  

saw the accused falling down due to the injury while he was  

running towards the Police Chowky.

Page 9

9

14. The prosecution adduced the testimony of PW7 as an eye-

witness,  but  PW7  did  not  identify  any  of  the  accused/  

respondents  in  the  Test  Identification  Parade  which  can  be  

concluded from the substantive evidence.

15. The recovery of arms need not be discussed by us in detail  

as the same has already been discussed by the High Court to  

arrive  at  the  conclusion  that  it  is  not  trustworthy  and  

incriminating against the respondents.

16. Learned counsel for the accused/respondents has cited the  

decision of  this  Court  in  Siddanki  Ram Reddy v.  State  of  

Andhra Pradesh, [(2010) 7 SCC 697]  wherein it was held:

“When an attack is made on the injured/deceased  

by  a  mob  in  a  crowded  place  and  the   

eyewitnesses had little  time to see the accused,   

the  substantive  evidence  should  be  sufficiently   

corroborated by a test identification parade held   

soon after the occurrence and any delay in holding   

the test  identification parade may be held to be   

fatal to the prosecution case.”

17. It is very clear that in the present case the incident of firing

Page 10

10

occurred  in  the  circumstances  wherein  much  time  was  not  

available  for  the  eye-witnesses  to  clearly  see  the  accused.  In  

such a situation, it was of much more importance that the Test  

Identification Parades were to be conducted without any delay.  

The first Test Identification Parade was held by PW21 after about  

1½   months  of  the  incident.  The  second  Test  Identification  

Parade was conducted by PW18 after more than a year of the  

incident. Even if it is taken into account that A12 was arrested  

after  a  year  and  within  one  month  thereafter  the  test  

Identification Parade was conducted, still  it  is highly doubtful  

whether the eye-witnesses could have remembered the faces of  

the accused after such a long period. Though the incident took  

place in broad daylight,  the time for  which the eye-witnesses  

could see the accused was not sufficient for them to observe the  

distinguishing features of the accused, especially because there  

was  a  commotion  created  after  the  firing  and  everyone  was  

running to shelter themselves from the firing.

18. In view of the discussion in the foregoing paragraphs, we  

are of the considered view that the testimonies of the witnesses  

suffer  various  infirmities  and  contradictions  and  the  Test  

Identification  Parade  was  not  conducted  properly  and  was

Page 11

11

delayed.  The  High  Court  is,  therefore,  correct  in  giving  the  

benefit of doubt to the accused as their identity had not been  

clearly established by the prosecution.

19. Thus,  in  the  light  of  the  above  discussion,  we  find  no  

grounds  to  interfere  with  the  judgment  passed  by  the  High  

Court. The appeals are, accordingly, dismissed.

…......................................J                                                         (Pinaki Chandra Ghose)

….....................................J New Delhi;                                            (R.K. Agrawal) February 12, 2016.

Page 12

12

ITEM NO.1A               COURT NO.10               SECTION IIA (For judgment)                S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS

Criminal Appeal  No(s).  345-346/2012 STATE OF MAHARASHTRA                               Appellant(s)                                 VERSUS SYED UMAR SAYED ABBAS & ORS.                       Respondent(s)

Date : 12/02/2016 These appeals were called on for pronouncement  of judgment today.

 For Appellant(s) Mr. Kunal A. Cheema, Adv.                   Mr. Nishant Ramakantrao Katneshwarkar, AOR

Mr. Yogesh Ahirrao, Adv. Mr. Vilas Giri, Adv.

                     For Respondent(s) Mr. Mushtaq Ahmad, AOR                       

*****                     Hon'ble  Mr.  Justice  Pinaki  Chandra  Ghose  pronounced  the  

reportable  judgment  of  the  Bench  comprising  His  Lordship  and  Hon'ble Mr. Justice R.K. Agrawal.  

The appeals are dismissed in terms of the signed reportable  judgment.

(R.NATARAJAN)          (MADHU NARULA)  Court Master       Court Master

(Signed reportable judgment is placed on the file)