TMI Blog1995 (5) TMI 278X X X X Extracts X X X X X X X X Extracts X X X X ..... behind the two firing incidents. In response to the telephonic information PW 1 Inspector Deshmukh accompanied by PW 4 Inspector Deshpande PW 6 Inspector Gadre and PSI Chate left the zonal office of the DCB CID in a police jeep for combing operations . The hide out of the gang of Chota Rajan was reported to be at Tilak Nagar/Ghatkopar. After the police party reached near Tilak Nagar, PI Gadre PW 6 received secret information that some members of Chottey Rajan gang were hiding in a room on the ground floor of building No. 93 at Tilak Nagar. Room No. 3323 (stated by the prosecution to be 3334) is situated on the ground floor of building No. 93. At about 8.30 p.m. the members of the raiding party reached in front of room No. 3323 of building No. 93 after joining with them two independent panches PW 2 Ramji and PW 5, Tushar Niar. The door of the room was found closed. PW1 rang the door bell and knocked at the door but there was no response. Some whispers could, however, be heard by members of the raiding party. The police party disclosed their identity to the inmates but the door of the room was still not opened. The door was therefore forcibly broken open by the raiding party and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the police, did not rely upon the evidence of PW 2, but accepting the statements of PW 1, PW 4, PW 5 and PW 6 convicted and sentenced the appellants. 6. Section 100(4) of the Cr.P.C. requires that before making a search, the officer or other person about to make it, shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness, the search and may issue an order in writing to them or any of them so to do. The courts generally look for compliance of the aforesaid provisions, to the extent possible in the facts and circumstances of a given case. Do PW2 and PW5 satisfy the requirements of Section 100(4) supra? Can they be called independent respectable witnesses of the locality? If they did not belong to the locality where the search was conducted, what was the occasion from them to be present near building No. 93 at the crucial time to be joined as panch witnesses? Answer to these and some other questions, to be dealt with later on, would decide whether the convictio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad left for combing operations: in the area of Tilak Nagar on receipt of information regarding the two incidents of firing in that area should meet PW 2 and PW 5 only as the 'respectables' of the 'locality' and request them to join as independent panches . For very cogent reasons. PW 2 has been disbelieved by the Designated Court itself as was found to be a person available and amenable to police. It appears to us that the services of PW 5 were made available to the police by his friend PW 2, who on the finding of the Designated Court was always available to the police and had been joining the police party during various raids. Obviously no serious attempt was made by the raiding party to associate with them two or more independent and respectable inhabitants of the locality in which the room was located, for reasons best known to them before conducting the search. It is not the case of the prosecution that either no independent respectable witness of locality was available or was otherwise willing to join the raid when contacted. The effort of the police party to paint and portray PW 2 and PW 5 as independent witnesses stands exposed by the Designated Court itsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parents. As I was indulging in gambling my parents were not on good terms with me. The parents might have considered me as a bad element. My parents wanted me to give up gambling and they had warned me on that score. My gambling activity was behind the back of my parents and I never informed it to them. My gambling activity came to the notice of my parents through some of my friends. During my gambling activity Ramaji PW 2 was my friend. As a gambling den was nearby Gandhi Market I came in contact with PW 2 Ramaji. PW 2 also used to come to the den for gambling. The gambling den belonged to somebody else and was not my own. I do not know the name of the conductor of the gambling den. I was indulging in the gambling for over 2 to 3 years. I became a friend of PW 2 and started assisting him in his business after my parents threw me out from their house. The gambling den where I was gambling falls within the local jurisdiction of Motunga Police Station . He further admitted that on 2.1.91 I had given my fake address to the police a the instance of PW 2 , After the raid, he had left Bombay and settled at Raipur. He admitted that neither his mother nor any other relative knew his wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sel for the State, however, vehemently argued that there was no reason for the court to disbelieve the official witnesses PW 1, PW 4 and PW 6 who had no reason to falsely implicate any of the appellants. They are independent respectable persons. Indeed, the evidence of the officials (police) witnesses cannot be discarded merely on the ground that they belong to the police force and are, either interested in the investigating or the prosecuting agency but prudence dictates that their evidence needs to be subjected to strict scrutiny and as far as possible corroboration Of their evidence in material particulars should be sought. Their desire to see the success of the case based on their investigation, requires greater care to appreciate their testimony. We cannot loose sight of the fact that these police officials did not join any independent witnesses of the locality and made an attempt to create an impression on the courts that both PW 2 and PW 5 were witnesses of locality and were independent, knowing fully well that PW 2 was a witness who was under their influence and 'available' to them, as he had been joining the raids earlier also and PW 5 was a close associate of PW 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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