Shri Chandra Sudhakar Shetty vs The State Of Maharashtra
2010 Latest Caselaw 191 Bom

                                 1
                                                  (Cri appeal 34 of 2001)

         IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                 
               CRIMINAL APPELLATE JURISDICTION




                                         
                CRIMINAL APPEAL NO. 34 OF 2001

     Shri Chandra Sudhakar Shetty)
     Age 25 years, Residing at R.C.F.,   )




                                        
     Colony, Type -2 Building No.l2,     )
     Room No. 258, Chembur               )
     Mumbai                              )..Appellant
                                         (Org. Accused No.2)




                              
               Versus
                   
     The State of Maharashtra
     (At the instance of Kalamboli
                                         )
                                         )
     Police Station, Dist. Raigad        )..Respondent
                  
                            WITH
               CRIMINAL APPEAL NO. 333 OF 2001
      


     Haresh Ramesh Patel @ Gaunda        )
     Indian Inhabitant, Aged 25 years,   )
   



     Residing at RCF Colony, Type-2,     )
     Building No.12, Room No.258,        )
     Chembur, Mumbai.                    )..Appellant
                                         (Org.Accused No.1)





               Versus

     The State of Maharashtra                  )
     (At the instance of Senior Inspector      )





     of Police, KalamboIi Police Station) )..Respondent




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                                                   (Cri appeal 34 of 2001)

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Mr.Ganesh Gole for Appellants Mrs. M.R. Tidake-APP for the State

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CORAM: V.M. KANADE J.

DATED:24TH NOVEMBER, 2010

P.C.

1. Heard the learned counsel appearing on behalf of the Appellants and the learned APP for the State.

2.

The Appellants have been convicted for the offence punishable under section 395 r/w. 397 of the

Indian Penal Code and they were sentenced to suffer R.I. for seven years and to pay fine of Rs.2,000/- each and, in default, to suffer further R.I. for six months.

3. The prosecution case in brief is that the Complainant - PW-1 Maheshkumar Parmeshwarlal

Khedwal was distributing Diwali bonus in his office, at that time, 7 to 8 persons entered the office and took out revolvers and knives and on the point of that, threatened the Complainant and took away the cash

which was to be distributed by him. The Appellants were arrested in connection with another robbery which had taken place and during the investigation and

(Cri appeal 34 of 2001)

interrogation, they confessed that they had also

committed the robbery which had taken place in the

office of the Complainant. The Appellants were arrested on 28.11.1997 by the Domibivali Police. Charge was framed against the Appellants. The

Appellants not pleaded guilty to the said charge. Prosecution examined 9 witnesses, out of which, two witnesses are the eye witnesses to the said incident

viz. PW-1 and PW-3. Test identification parade was held

after two months on 28.1.1998. Only PW-1 attended the test identification parade. The other eye witnesses did

not attend the test identification parade. PW-1 identified the Appellants in the test identification parade and also identified them in the Court. PW-3

also identified the Appellants in the Court. There were

recovery of cash amount of Rs.10,000/- from the accused. On the basis of the statements of PW-1 and

PW-3 and on account of the identification of the Appellants in the test identification parade, the Trial Court held that the prosecution has proved its case beyond reasonable doubt and, therefore, convicted the

accused under section 395 r/w. 397 of the Indian Penal Code and they were sentenced to suffer R.I. for seven years and to pay fine of Rs.2,000/- each and, in default,

(Cri appeal 34 of 2001)

to suffer further R.I. for six months.

4. Shri Gole, the learned counsel appearing on behalf of the Appellants submitted that no reliance could be placed in the test identification parade. Firstly

because, there is a gross delay in holding the test identification parade. Secondly, there was no reason given for the delay caused in holding test identification

parade. Thirdly, it was submitted that the guidelines

laid down under the Manual for holding the test identification parade were not followed by the

Executive Magistrate, who held the test identification parade. It was then submitted that the Investigating Officer had shown the photographs of the accused-

Appellants therein before the test identification parade

was held and, therefore, no reliance could be placed on the said test identification parade report. He invited my

attention to the cross examination of PW-9, Mr. Suresh Babu Talbhandar, the Investigating Officer who had investigated in the said case. He submitted that the Investigating Officer had admitted that he had shown

the photographs of the offenders to the complainant. He submitted that the specific ground to that effect was also taken in the appeal memo.

(Cri appeal 34 of 2001)

5. After having heard both the learned counsel at

length and after going through the evidence on record and impugned judgment and order of the Trial Court, I am of the view that the prosecution has failed to

establish its case against the Appellants. In the present case, there are two eye witnesses examined by the prosecution viz. PW-1 and PW-3. The test identification

parade of the accused was held on 28.1.1998 and there

is much substance in the submission made by the learned counsel for the Appellants that reliance could

not be placed on the test identification parade report in view of the admission given by the Investigating Officer. It is a settled position in law that the purpose

of holding a test identification parade is to ensure that

the eye witness identifies the assailant who is not known to him in a test identification parade, which is

held by an independent person. If the accused is either shown to the witness or his photographs are shown, then the very purpose of holding such test identification parade is defeated. The PW-9, in his

statement has categorically admitted in cross examination that he had shown him the photographs of the offenders. He had also shown the computer

(Cri appeal 34 of 2001)

sketches to him. He has also admitted that the

accused were in his custody since 1997. In view of the

clear admission given by the I.O., therefore, the test identification parade which was held after the photographs were shown to the witnesses looses its

creditability and, therefore, no reliance could be placed on the said test identification parade. In the present case, once the evidence of test identification is

disbelieved, the ig only material on record is the statement of the eye witnesses of PW-1 and PW-3 and their identification of the accused in the Court. The eye

witnesses viz. PW-1 and PW-3 identified the accused in the Court after three years i.e. in the year 2000 when their evidence was taken. Apart from that, the

photographs of the accused were already shown to

them by the I.O., therefore, even the identification by the witnesses in the Court, cannot be accepted. There

is a recovery of Rs.10,000/- from the accused. However, the said recovery by itself cannot connect the accused to the commission of offence. The Trial Court has not considered this aspect at all and has on the basis of the

evidence of PW-1 and PW-3 and the test identification parade which was held, convicted the accused.

(Cri appeal 34 of 2001)

6. In my view, therefore, the prosecution has not

established its case beyond reasonable doubt. There

has been no recovery of revolvers or knives at the instance of the accused. The judgment and order passed by the Trial Court, therefore, will have to be set

aside and quashed.

7. The Appeal, therefore, is allowed. The order of

conviction and sentence awarded to the accused is set

aside. The Appellants are acquitted for the offences with which they are charged. The Appellants be

released forthwith unless they are required in any other cases.

Criminal Appeals are, accordingly, allowed and

disposed of.

(V.M. KANADE J.)