V.V. Vaze, J.
1. A wooden partition with an upper-half of glass would be the least expected fixture in small shack looking like a godown. Gala No. 9 on the ground floor of Tardeo Mansion, Tulsiwadi Road, Tardeo was no doubt a godown but its original tenant P.W. 6 Kulwantsingh Chopra alias Mohan Punjabi ('Minoo') had let out the same to P.W. 14 Minoo Meherjibhow Mistry ('Minoo'). As this Gala had no electricity, Minoo approached a neighbour for supplying electrical connection. P.W. 15 Pandurang Raigude ('Pandurang'), the friendly neighbour obliged on payment of Rs. 25/- per month and gave a temporary connection. The modus operandi of the makeshift arrangement was that everyday Pandurang would carry a connecting wire from his power supply up to the rear side of Gala No. 9, provide light from 6.30 P.M. 10.00 P.M. or sometimes till midnight, and then disconnect and coil back the wire every night after use.
2. The elaborate lighting arrangements for the shack were necessitated by the fact that it was to be used by Minoo as a Matka-den one of the many which have sprung up like mushrooms in this metropolis to satiate the gambling instincts of its proletariat. Minoo had entered into a partnership with P.W. 2 Hiralal Shrigopal Gupta ('Hiralal') under the terms of which Hiralal was managing the day-to-day affairs of the Matka business because Minoo was more concerned with the management of another gambling den euphemistically called 'Nava Bharat Social Club.' It appears that the den was frequented by various punters. They used to collect cash as soon as the lucky number was drawn from the Matka in the evening.
3. P.W. 7 Pritamsingh Surjansing ('Pritamsing') plies a taxi belonging to his brother Nazarsingh during the night only. On 7-11-1977 when Pritamsing was in search of customers, he was beckoned by an acquaintance Dnyansingh (Kaka) who asked him to give a lift to Suhas @ Baban Rajaram Sawant (Accused No. 2) who wanted to go to Tardeo. Pritamsing agreed but inquired from Baban (A/2) as to whether he would have any objection if he would give a lift to Kaka and on being assured that there was none, asked Kaka to sit along with A/2 in the taxi. From Batra Petrol Pump the taxi proceeded into a lane where three friends of Baban, Dashrath Laxman Satam (Accused No. 3), Baliram Kashiram Surve (Accused No. 4) and Kiritsingh Pratapsingh Nepali @ Danny (Accused No. 5) also joined Baban who asked Pritamsingh to proceed to Apsara Talkies which is ahead of Bombay Central. There Baban and his three friends got down, had a word with another waiting person who also joined the group. The taxi proceeded to the air-conditioned market at Tardeo where all of them except Kaka got down. Pritamsingh and Kaka had sugarcane juice whereafter Baban and his friends came back to the taxi. A/2 was having a sword in his hand, A/1 a dagger and the taxi proceeded towards Worli as directed by Baban. From Worli the taxi again came back to Apsara Talkies where all persons except Kaka got down, Pritamsingh waited for about 10 to 15 minutes whereafter another person with a beard and three others boarded the taxi which was driven to Saki Naka. The passengers got down at Saki Naka and when Pritamsingh demanded the fare of Rs. 72/-, he was given Rs. 30/- and a wrist watch.
4. Hiralal along with Dadu and Ashok were attending to Matka business as usual at 8.30 p.m. on 7-11-1977. One woman Rozy, one plumber and one Bhayya had come to lay bets. At that time two persons, A/2 and A/3, with swords in hand entered the den and threatened them not to move. They were followed by two more persons, A/1 Kundanlal and A/5 Danny, out of whom A/1 had a dagger in hand and A/5 started giving threats to the inmates that they would be killed if they attempted to move. A third pair followed suit and they were A/4 Baliram and A/6 Anil Dinanath Nedavdekar. A/6 took out the cash from the pockets of one Dadu and emptied the cash box. A/3 robbed a servant Ashok and A/4 snatched the wrist watch of Bhayya. The Bhayya tried to pull back the wrist watch when A/1 stabbed him with the dagger near the neck and collar bone. Dadu tried to apprehend A/1 and was stabbed on the neck near collar bone. A/5 snatched the gold chain of P.W. 4 Rozy Enaz Rodrigues (Rosy) and the operation being over all the members of the gang bolted away through the rear door. Hiralal went out to report the matter to his partner Minoo who came back to the den by which time the injured persons had been removed to hospital. The partners went to Nair hospital only to find that the injured were declared dead. The partners gave their statements to Inspector Sawant.
5. On the basis of this evidence the accused were put up for trial before the learned Additional Sessions Judge for Greater Bombay, who convicted A/1 under sections 302, 396, 143 and 454 of the Indian Penal Code and imposed various sentences on him, the one under section 302 Indian Penal Code being imprisonment for life. A/3, A/4 and A/5 were convicted for offence under section 396 of the Indian Penal Code and sentenced to suffer R.I. for a period of 10 years as well as fine. They were also convicted under sections 143 and 454 of the Indian Penal Code but the substantive sentences were to run concurrently. It is against this judgment that A/1 has filed Appeal No. 1314 of 1979, A/3 has filed Appeal No. 1234 of 1979, A/4 and A/5 have filed Appeal No. 1298 of 1979. Revision Applications Nos. 712 of 1979 and 713 of 1979 deal with the question of enhancement of sentences imposed on A/3, A/4 and A/5. All these matters were heard together and are being disposed of by this judgment.
6. The sheet anchor of the arguments addressed at the Bar on behalf of the appellants was that considering the fact that the den in question was a dilapidated structure, the ceiling of which was supported by no less than nine props and had a single electrical bulb of doubtful luminosity to illuminate it, it is in the highest degree improbable that the witnesses who claim to have identified the accused as being members of the raiding party could really have done so. The prosecution has examined P.W. 2 Hiralal, a partner of the den and P.W. 3 Ashok Baburao Kadam ('Ashok') who was working on daily wages of Rs. 6/- in the den as eye-witnesses to the incident. They have more or less given an identical story about the mechanics of the raid and identified all the accused persons. P.W. 4 Rosy is a woman in her early fifties who works as an Ayah and had also visited the den for laying bet. She also narrates the story of the members of the gang approaching the den in twos but identifies only A/5 as the person who snatched the chain from her neck. P.W. 6 Kulawantsingh was not present in the den at the time the raid took place but was working in a nearby gala No. 11, the one which he had converted into his office, till about 9.30 p.m. He closed the office where he worked by the light of a petromax and came to gala No. 9 with the lighted petromax when he saw 5 or 6 persons coming out of gala No. 9 on that day. He identified A/1 and A/3 amongst the persons who were leaving gala No. 9 on that day. He also identified them in the identification parade which was held on a later date by the Special Executive Magistrate, P.W. 36 Dr. Anna Dada Narda.
7. From the Panchanama of the scene of offence, Exhibit No. 60, it appears that in the den which is about 12 ft. by 13.8 ft. there are in fact nine wooden props to support the roof. Out of these, three are near the eastern wall, three in the centre and the remaining three are near the western wall. The den is sparsely furnished with one wooden bench, a wooden desk and a small shelf in the corner. The panchas also noticed a temporary electrical connection with a bulb in the front portion of the den.
8. Undoubtedly, the den did have nine wooden props but to suggest that the props would throw long and dark shadows so as to make identification of the persons occupying the den impossible or difficult would be an argument difficult to accept. As it appears from the panchanama six of the props are nearly abutting the walls with the result that none of them would obstruct a clear vision. As regards the remaining three props, they would hardly serve as an obstruction considering their diameter which though not mentioned in the panchanama would ordinarily not exceed 4' to 5'. With a lone central bulb serving as illumination there will be hardly any shadow or a criss-cross light and shadow effect making identification difficult.
9. As regards the identification parade held by Dr. Narda, it has been argued at the bar that it was obligatory upon Dr. Narda to select such dummies who have a facial similarity with the accused more so when accused No. 5 Kiritsingh @ Danny being from Nepal has strikingly mongoloid features. It is argued that as the evidence does not show that some Nepali's were selected as dummies, the identification of a Nepali in a parade of non-Nepali's would become a mockery.
10. The evidence of Dr. Narda shows that he had selected about 35 persons as dummies out of 65 persons who were called for the purpose. There is nothing in the cross-examination to indicate that the persons selected did not bear any resemblance with the accused. Rather Dr. Narda took the precaution to ask the suspects as to whether they would like to change their bush shirts with those of their dummies and also allowed them a free hand in occupying any position which they liked in the parade. After the panch left the parade to fetch the next witness, Dr. Narda permitted the suspects to change their position as well as dresses so that a witness who has left the room where the parade is on should not pass on information regarding the positioning of the suspects in the parade. Suggestions of Dr. Narda were accepted by Kiritsingh who removed his spectacles during the interval between the exit of one witness and the entry of another.
11. Identification of A/1 has been challenged at the bar on the ground that the description of a bearded person given by the witnesses could not be referable to A/1 because A/1 being a young lad of 18 could hardly sport a beard as described by the witnesses. Prosecution has examined P.W. 10 Piruddin Nazimuddin who runs a barbar's shop-light of Maharashtra- at Lamington Road which is visited by A/1 who was serving as a waiter on the railway dining car in the Delhi Bombay Janata Express train. Piruddin remembers that on 11-11-1977 when he was about to pull down the shutters of his saloon at night, A/1 came to him with a 1-inch long beard and asked him to give a shave as he had to go on duty in the dining car next morning. He remembers the date 11-11-1977 precisely because on that day there was some Maramari in the locality where in soda water bottles were freely used by inmates of Calcutta wala building and Zariwala building. P.W. 11 Vijaypratap Bhirgunath Gupta serves as a clerk in the Company which works as Caterers on Delhi Bombay Janta Express train. He identified A/1 as the person who was working as Assistant Manager in the dining car in November 1977. The Caterers maintain a record of the trips and from the record Vijaypratap deposed that Delhi/Bombay Janta Express Train in the dining car of which A/1 worked, reached Bombay Central on 6-11-1977 and the next day, i.e. 7-11-1977 was a rest day for A/1. P.W. 12 Mewalal Mahadeo Sharma also confirms the evidence of Vijaypratap about the movements of A/1 and remembers that he saw A/1 with a beard for 2 or 3 months. The deposition of these witnesses rules out the possibility that the bearded person referred to by Hiralal and Ashok, as being a member of the raiding party could as well be someone other than A/1.
12. From amongst the eye-witnesses, P.W. 7 Pritamsingh (taxi driver) and P.W. 8 Kaka had moved with the accused persons for a considerable time having driven them to and for from the Saki Naka to the scene of offence and back. These two naturally had the maximum opportunity to notice the facial characteristics of the accused persons and could be regarded as truthful witnesses for identification compared with P.W. 2 and P.W. 3 who had seen the accused persons for a few fleeting moments during the night. Appreciating that the evidence of these witnesses is likely to command greater probative value on that count, defense Counsel has gone hammer and tongs at their deposition on the ground that they being accomplices, their evidence should be treated with suspicion. Right from the beginning, the overtures of the accused towards Pritamsingh and Kaka were such that it would be reasonable to presume that they had knowledge about the plot which was hatched by the accused regarding the raid of the Matka den. Counsel point out that Kaka was approached by A/2 with a request that the latter should fetch a taxi as A/2 wanted to go to Tardeo. There was no reason why A/2 should have requested someone else for a taxi when a taxi could be hired in Bombay merely by show of hand. As regards Pritamsingh so the argument proceeds- his conduct in asking the other accused persons to permit Kaka to sit in the taxi is also suspicious. Pritamsingh should have smelt a rat when three persons, two armed with swords and one with a dagger, were taken by him as passengers and that after the incident, six persons came running to his taxi. Lastly, Counsel argues, the movements of the accused were suspicious inasmuch as instead of going to Tardeo directly, the accused persons went further ahead to Apsara Talkies and then came back to Tardeo. The willingness of Pritamsingh and Kaka to have as many as six passengers in the taxi at a time is also indicative, so the argument proceeds, of their complicity in the plot.
13. One has to appreciate that P.W. 7 Pritamsingh does not own a taxi of his own but plies the taxi of his brother during night time. Such being the position Pritamsingh has no option but to take as a passenger whoever is willing to pay his fare. We would not wish to be thought that we regard that a driver of a motor vehicle who transports a gang of criminals to the place of offence could never be an accomplice simply because he does not visit the scene of offence or take some overt part in the mechanics of the offence. In Director of Public Prosecutions v. Maxwell (1978)3 All.E.R. 1140, the appellant was told by a member of an illegal organization to guide car at night time to a public house in a remote country area. The appellant had an inkling about the terrorist attack which was being planned but did not know what form it would take. Driving his own car he led another car containing 3 or 4 men to the public house. When he arrived there, the appellant drove slowly past and then drove home. The other car stopped opposite the public house and the inmates other than the appellant had not taken any overt part. He was held guilty of aiding and abetting the commission of a criminal offence even though he did not have prior knowledge of the actual crime intended. The House of Lords held that the appellant contemplated the commission of one of a limited number of crimes and intentionally lent his assistance in the commission of such a crime. It was irrelevant that at the time of leading his assistance the accused did not know which of those crimes the other members of the gang intended to do.
14. Counsel for the accused would be right if the evidence pointed out that even though Pritamsingh or Kaka did not take part in the actual raid of the Matka den, they should, in the nature of things, have known that they were hired to transport the accused persons to raid the Matka den and back or, at any rate, must have contemplated that the accused were planning commission of some crime but, nonetheless, intentionally lent their assistance in the commission of such crime. In Lunch v. Director of Public Prosecutions (1975) 1 All.E.R. 913 the accused had driven three armament to a place near where a policeman was stationed and, after those men had shot the policeman, had driven them away again. The accused had not taken part in any shooting and alleged that he had been ordered by men to participate in the events. Discounting the plea of duress and holding the accused guilty as an accomplice, the House of Lords held that a person the subject of duress could reasonably have sought protection or had what has been called a safe avenue of escape. Defense Counsel argues that, according to Pritamsingh he was over-awed by the display of the dagger and the swords and entertained fear when the passengers took their seats and gathered that they had come after doing some 'Lafda'. If Pritamsingh suspected Lafda, so the argument is built up, he could have reported the matter to the Police Station if he was a more innocent transporter as he wishes us to believe. It would be observed that in both the English cases cited above, the accused had prior knowledge of the fact that the passengers whom he is transporting were contemplating the commission of an offence. They did not know the details or the mechanics of their modus operandi. But in the present case, there is not a scintilla of evidence to indicate that either Pritamsingh or Kaka had any knowledge whatsoever about the designs of the accused and hence none of these witnesses could be branded as accomplices.
15. Even if we are wrong in holding that Pritamsingh and Kaka were not accomplices, convincing evidence from the eye- witnesses, P.W. 2 Hiralal and P.W. 3 Ashok who were present at the time of the raid and have identified all the accused persons in the parade cannot be brushed aside. P.W. 4 Rosy could identify only A/5 who snatched her gold chain and being a woman must have been frightened out of her wits at the sight of the raiding party. The prosecution has thus established the complete chain connecting the accused to the offence starting from the time when they hired the taxi of P.W. 7 Pritamsingh at Sake Naka, their movements to Apsara Talkies at Lamington Road, back journey to Tardev, the waiting near Matka-den and return journey. As regards the part played by each of the accused in the Matka den, Hiralal, Ashok and Rosy have given evidence which has not been shaken in cross-examination. Though the cash which was the subject matter of robbery has not been recovered, Rosy has not been able to identify the gold chain which was sold to P.W. 18 Amarchand Haziramal Jain by A/3 who utilised the good offices of P.W. 19 Jangabahaddur Jyotisingh Nepali for purposes of introduction. As accused persons did not have enough money to pay for the taxi fare of Rs. 72/-, a wrist watch (Article 4) was handed over by A/4 to the taxi driver from whom it was recovered.
16. The upshot of the above clearly points out that the learned Sessions Judge was right in finding the accused persons guilty as he did of the various offences. The learned Public Prosecutor argued that chain snatching has become rampant in the city of Bombay. The sentence of A/5 should by enhanced as he was guilty of robbing an old maid servant of her probably only trinket. Though we share the sentiment of the prosecution, we feel that the sentence passed by the learned Sessions Judge need not be disturbed as he has taken into consideration the tender age of A/5. In the result, the appeals are dismissed and the enhancement notices are discharged.