STATE OF MAHARASHTRA versus SYED UMAR SAYED ABBAS & ORS.

Citation: [2016] 2 S.C.R. 583 · Decided: 12-02-2016 · Supreme Court of India · Bench: PINAKI CHANDRA GHOSE · Disposal: Dismissed

Judgment (excerpt)

[2016] 2 S.C.R. 583 
STATE OF MAHARASHTRA 
v. 
SYED UMAR SAYED ABBAS & ORS. 
(Criminal Appeal Nos. 345-346of2012) 
FEBRUARY 12, 2016 
. [PINAKI CHANDRA GHOSE AND R.K. AGRAWAL, JJ.) 
Penal Code,,1860: ss.302 and 307 r!w s.120-B - Murder - · 
Victim-deceased sitting in panda/ with PW-6 -Accused persons caine 
there and opened fire on the victim hitting bullets in his head,' chest 
and various parts of his body at point blank range - When PW-6 
tried to run, he was also hit by one bullet - Victim was taken to 
hospital where he was declared dead - Conviction by trial court on 
the ground that it was conclusively established by TIP and eye 
witness testimonies that Al and Al 2 had fired on the deceased and 
recovery of weapon along with the ballistic report further 
strengthened the prosecution case - High Court set aside the 
conviction granting benefit of doubt - On appeal, held: Evidence 
of eye witnesses was not reliable - The testimonies of the witnesses 
suffered various infir.mities and, contradictions and the TIP was not 
conducted properly and was delayed - High Court rightly granted 
benefit of doubt to the accused as their identiiy was not clearly 
established by prosecution. 
Dismissing the appeals, the Court 
HELD: 1. There were five eye-witnesses, including the 
injnred eye-witness. PWl allegedly recognized two persons, who 
shot at the deceased and the injured PW6, as Al and A12, but his 
evidence suffered 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 was with 
respect to his deposition regarding the Test Identification Parade 
(TIP). He stated that in the TIP held on 30.8.1995, he had 
identified four persons out of 10-12 persons standing in the row. 
According to the prosecution, the TlP 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 
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SUPREME COIJRT REPORTS 
[2016] 2 S.C.R. 
remained that PW21 deposed that he conducted 2 TIPs on that 
day. In the first Parade, he placed Al 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 PWl to identify out of the whole group. This contradiction 
showed that it was not clear as to whether he rightly identified 
the accused. Also, he stated that in another parade held after 
almost a year, he identified Al2. That parade was conducted by 
PW18 (another Special Executive Officer). Al2 was arrested by 
the first week of September, 1996 and thus the TIP was conducted 
on 4.10.1996, but it was too large a gap for PWl to have 
remembered his face. Also, PWl 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 PWt even more vulnerable. [Paras 9, 10] [588-D-
H; 589-A) 
3. 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. Even PW4 heard the noise of bursting of 
some crackers and then he could sec what was happening in the 
Pandal and he recognized Al in the parade conducted by PW21 
on 30.9.1995 and Al2 in the parade conducted by PW18 on 
4.10.1996. PW5 is the first informant who stated that he witnessed 
the incident while he was standing in the first floor gallery of his 
building which was abutting the Panda!. He also deposed that he 
had identified Al and A12 in the TIPs 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. 
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. PW6, the injured eye-witness who 
sustained bullet injuries, deposed that he could not see any of 
the accused and while he wa

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