Bombay High Court
Rajnish Purushottam Pogade & One vs State Of Maharashtra Thr. P.S.O., P.S. ... on 10 June, 2019
Equivalent citations: AIRONLINE 2019 BOM 403, 2019 (2) ABR(CRI) 824, (2019) 3 BOMCR(CRI) 583, (2019) 6 MH LJ (CRI) 322
Author: Rohit B. Deo
Bench: Rohit B. Deo
1 a786of18&787of18
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL 786 OF 2018
WITH
CRIMINAL APPEAL 787 OF 2018
CRIMINAL APPEAL 786 OF 2018
1 Rajnish Purushottam Pogade,
aged about 33 yrs, Occ. Labour
R/o. Shendurwafa, Tah. Sakoli,
Dist. Bhandara
2 Monu Ramu Bokade,
aged about 31 yrs, Occ. Labour,
r/o. Sakoli, Dist. Bhandara ...APPELLANTS
...V E R S U S...
State of Maharashtra,
through Police Station Officer,
Police Station Sakoli,
District Bhandara ...RESPONDENT
CRIMINAL APPEAL 787 OF 2018
Govind Kishor Sorte,
aged about 33 yrs, occ. Driver,
r/o. Chandrasekhar ward, Gondia
Tah. Dist. Gondia ...APPELLANT
...V E R S U S...
State of Maharashtra,
through Police Station Officer,
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2 a786of18&787of18
Police Station Sakoli,
District Bhandara ...RESPONDENT
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Shri Anil Mardikar, senior counsel assisted by Rishabh Khemuka,
counsel for appellants.
Shri T.A. Mirza, Additional Public Prosecutor for respondent.
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CORAM: ROHIT B. DEO, J.
DATE: 10th JUNE, 2019.
JUDGMENT
These appeals assail the judgment dated 19.11.2018 rendered by the Sessions Judge, Bhandara in Sessions Trial 33 of 2015, by and under which, the accused are convicted for offence punishable under section 394 and 397 of the Indian Penal Code (IPC) and are sentenced to rigorous imprisonment for seven years on each count and to payment of fine of Rs. 5,000/- and in default to suffer rigorous imprisonment for three months. Criminal Appeal 786 of 2018 is preferred by accused 1 - Rajnish Pogade and accused 3 - Monu Bokade and Criminal Appeal 787 of 2018 is preferred by accused 2 - Govind Sorte.
2. The prosecution case:
(i) The incident occurred on 11.4.2015. The driver of Boloro- pickup vehicle one Naresh Shende - who is the informant and conductor Paras kamble were proceeding from Lakhani to ::: Uploaded on - 11/06/2019 ::: Downloaded on - 12/06/2019 01:36:34 :::
3 a786of18&787of18 Bilaspur at 7.45 p.m. or thereabout. The vehicle was forced to stop at Sakoli bus stand by three persons riding on a green motorcycle. One person approached the informant and dragged him out of the Boloro vehicle and other person checked the pockets of the informant to which the informant objected. The person who dragged the informant out of the Boloro then whipped out a knife and inflicted a wound to the right hip of the informant and snatched a mobile phone (Nokia) from the shirt pocket of the informant. The person who checked the pockets of the informant snatched a black coloured leather wallet from the trouser pocket of the informant, which wallet contained one Adhar Card and Driving Licence. The said person also relieved the informant of Rs. 1400/- cash.
(ii) The informant lodged police report at the Sakoli Police Station pursuant to which Crime 49 of 2015 was registered for offence punishable under section 392, 394 read with section 34 of the IPC and the informant was sent to the Rural Hospital, Sakoli for treatment.
(iii) The informant stated in the First Information Report (Exh.49) that he is in a position to identify the culprits. The ::: Uploaded on - 11/06/2019 ::: Downloaded on - 12/06/2019 01:36:34 ::: 4 a786of18&787of18 informant ventured to narrate the description and distinctive features of the culprits, in the First Information Report.
(iv) The Sakoli police arrested accused 1 Rajnish and accused 2 Govind on 12.4.2015 and accused 3 Monu on 15.4.2015. Perusal of the remand papers would reveal that the arrests were effected on suspicion.
(v) The Investigating Officer PSI Shri Ganesh Khandare seized currency of Rs. 1400/- from accused 1 - Rajnish and the clothes allegedly worn by the said accused on the date of the incident. The Investigating Officer seized knife from the residence of accused 3. The motorcycle was also seized. The Investigating Officer requested the Naib Tahsildar to conduct the Test Identification Parade (TIP) of the accused. Statements of witnesses were recorded and upon culmination of the investigation, charge sheet was filed in the Court of Judicial Magistrate First Class, Sakoli.
(vi) The Judicial Magistrate First Class, Sakoli committed the proceedings to the Court of Sessions which framed charge under section 394 and 397 read with section 34 of the IPC ::: Uploaded on - 11/06/2019 ::: Downloaded on - 12/06/2019 01:36:34 ::: 5 a786of18&787of18 (Exh. 26). The accused abjured guilt and claimed to be tried in accordance with law. The defence of the accused, as is discernible from the text and tenor of the cross-examination and the statement recorded under section 313 of the Code of Criminal Procedure, is of total denial and false implication. The defence of false implication is predicated on the assertion that there was previous enmity between the accused and the informant on the issue of carrying passengers in the vehicle.
3. The prosecution examined as many as eleven witnesses. PW 1 Naresh Shende is the informant. PW 2 - Dr Rupesh Badwaik examined the informant. PW 3 - Vinayak Mungmode is the witness to the spot panchanama and the seizure of clothes of the informant. PW 4 - Arvind Nimbekar is the panch witness to the seizure of currency of 1400/- and clothes from accused 1. PW 5 - Ramesh Ramteke is the witness to the seizure of clothes of accused 3 - Monu and the knife allegedly used in the commission of the offence. PW 6 Ravindra Kapgate is the panch to the TIP. PW 7 - Paras Kamble is the conductor who is examined as an eye witness to the incident. PW 8 Dr. Chandrashekhar Meshram is examined since his opinion was sought as regards the knife seized and the tear in the clothes worn ::: Uploaded on - 11/06/2019 ::: Downloaded on - 12/06/2019 01:36:34 ::: 6 a786of18&787of18 by the informant. PW 9 - Shri Dinkar Khot is the Naib Tahsildar who conducted the TIP. PW 10 - Balram Warkade carried the seized articles to the Chemical Analyzer and PW 11 Shri Ganesh Khandare is the Investigating Officer.
4. I have heard the learned senior counsel Shri Anil Mardikar with Shri Rishabh Khemuka for the accused and the learned Additional Public Prosecutor Shri T.A. Mirza for the respondent / State and with their able assistance, I have scrutinized the evidence on record and the reasons recorded by the trial Court.
5. Shri Anil Mardikar, the learned senior counsel would submit that the edifice of the conviction rests on the identification of the accused in the TIP and in the Court by the PW 1 Naresh- the Informant. Shri Anil Mardikar would submit that the conductor Paras - PW 7 did not support the prosecution and that there is no incriminating material or circumstance which is proved by the prosecution to conclusively link the accused to the crime. The knife which was recovered and not discovered pursuant to statement under section 27 of the Indian Evidence Act, from the house of accused 3 - Monu did not have any bloodstain and can ::: Uploaded on - 11/06/2019 ::: Downloaded on - 12/06/2019 01:36:34 ::: 7 a786of18&787of18 not be linked with the crime. The currency notes allegedly seized were not produced before the trial Court. The seizure of motorcycle is not proved, as is rightly held by the trial Court. Shri Anil Mardikar would submit that the trial Court gravely erred in basing the conviction on the identification of the accused in the TIP and then in the Court by PW 1 - Naresh. Contours and sweep of the submission of the learned senior counsel touching the aspects on identification in the Court and in the TIP shall be considered in some detail at a later stage in the judgment.
Shri T.A. Mirza, the learned Additional Public Prosecutor, in all fairness, agrees that the conviction is in essence based on the evidence of PW 1 - Naresh, who according to the prosecution identified the accused in the TIP and then in the Court. In response to the submission of the learned senior counsel Shri Anil Mardikar that the TIP conducted is farcical, Shri T.A. Mirza, the learned Additional Public Prosecutor would submit relying on the decision of the Hon'ble Supreme Court in Pramod Mandal v. State of Bihar, (2004)13 SCC 150 that the infirmities and lacunae in the TIP on which the defence is emphasizing were not put either to the Investigating Officer or the Magistrate who conducted the TIP and were, therefore, of no assistance to the defence.
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6. In the context of the rival submissions, it may be noted that the TIP in which PW 7 - Paras identified the accused was conducted on 29.4.2015 and the TIP in which the informant PW 1 - Naresh identified accused was conducted on 5.5.2015. It is not clear from record, and the prosecution has made no attempt to explain, why the informant PW 1 - Naresh was not introduced in the TIP conducted on 29.4.2015. The probative value of the TIP conducted on 29.4.2015 in which PW 7 - Paras identified the accused, even as a corroborative piece of evidence, is nullified since PW 7 - Paras refused to support the prosecution. The TIP in which the informant PW 1 identified the accused was conducted on 5.5.2015. The time gap between two TIP's could have been avoided. The two witnesses concerned were very much available on 29.4.2015 on which date the first TIP was conducted. The less the time gap between TIP's the more the assurance to the Court that the two witnesses have not interacted and the identification of the accused by the subsequent witness is not influenced or compromised by the inter se interaction.
7. The object of TIP, which is conducted during the course of investigation, is to enable the witness to identify the offender previously unknown to the witness. It is well settled, and ::: Uploaded on - 11/06/2019 ::: Downloaded on - 12/06/2019 01:36:34 ::: 9 a786of18&787of18 reference to the plethora of authorities holding the field is not really necessary, that the evidence of TIP is not substantive evidence and can only corroborate the substantive evidence of identification adduced in the Court. Identification of an accused is relevant under section 9 of the Evidence Act. The substantive evidence is the identification of the accused in the Court. However, the evidence of identification of the accused at the trial for the first time is inherently of a weak character and it is invariably found prudent to seek corroboration in the form of earlier identification, which corroboration strengthens the trustworthiness of the identification in the Court. Seeking corroboration is however, only a rule of prudence and the Court is not precluded by any established principle from believing and accepting the identification in the Court even in the absence of prior identification if the testimony of the witness is of a sterling quality. However, generally the Courts would seek corroboration if the accused are not known to the witness prior to the incident and the offence is of robbery or dacoit or akin thereto in which the incidence by its very nature is likely to be of short duration and the possibility and probability of the witness committing an error in the first time identification in the Court due to the limitations of the human memory and the capacity to recall and recount the ::: Uploaded on - 11/06/2019 ::: Downloaded on - 12/06/2019 01:36:34 ::: 10 a786of18&787of18 features of the offenders, is real.
8. Before considering the evidence on TIP, it would be apposite to consider the evidence of PW 1 - Naresh to ascertain whether PW 1 has identified accused in the Court, which identification would be the substantive evidence to which the evidence of TIP would lend corroborative assurance. The only statement in the evidence of PW 1 Naresh which touches the identification of the accused is "the accused to whom I identified in TIP are present in the Court".
The three accused were bound to be present in the Court at the time of recording of evidence. The statement in the evidence that the accused who were identified in the TIP are present in the Court is no identification in the eyes of law. The least which was expected of the witness was to point out the accused and identify him by attributing the role allegedly played in the commission of offence. Unfortunately, the prosecution was neither alert nor was alive to the responsibility of ensuring that the accused are identified in the Court. I am constrained to hold, that there is no substantive evidence of the identification of the accused. I hold so, as PW 1 has not stated in the evidence that the accused present in the Court are the culprits much less by attributing to individual ::: Uploaded on - 11/06/2019 ::: Downloaded on - 12/06/2019 01:36:34 ::: 11 a786of18&787of18 accused the role played in the commission of the crime. In Sheikh Hasib alias Tabarak vs. The State of Bihar reported in (1972)4 SCC 773 the Hon'ble Supreme Court considered the evidence on identification of the accused and noted that in the trial Court the witness did not identify the appellant as one of the dacoits whom he had seen at the time and place of the occurrence. (emphasis supplied) The witness had deposed thus:
"I 'attended' T.I. parade for two days. I 'attended' the (T.I.) parade twice on the first day and once on the second day. On the first day and at the first time I identified this accused (points to accused who gives out his name as 'Akal Jadav'). He had opened fire at the time of occurrence. I identified at the second time this accused (points to accused who gives out his name as Mohammad Hasib alias Tabarak). On the second day I identified this accused (points to one accused who gives out his name as Sheikh Quddus alias Khudwa)".
Be it noted that the witness pointed to the appellant Sheikh Hasib and stated that he had identified the said accused in the TIP. Considering the said evidence the Hon'ble Supreme Court observes thus:
"It is noteworthy that in the trial Court the witness did not identify the appellant as one of the dacoits whom he had seen at the time and place of the occurrence. If that is so then the question arises if the evidence of the test identification parade can form legal basis for the appellant's conviction".::: Uploaded on - 11/06/2019 ::: Downloaded on - 12/06/2019 01:36:34 :::
12 a786of18&787of18 Similar is the evidence of PW 1 who merely states that the accused whom he identified in the TIP are present in the Court.
9. The evidence of TIP is only corroborative and in the absence of substantive evidence, would be of scant assistance to the prosecution, particularly, since there is no identification of the accused in the Court nor is there any other evidence connecting the accused to the crime. However, I have nonetheless considered the evidence of TIP in the light of the painstaking submissions at the bar.
10. It is not seriously disputed that there is delay in conducting the TIP. The delay in conducting TIP is a serious infirmity and suffice it to refer only to few decisions of the Hon'ble Supreme Court which are Subhash & Shivshankar vs. State of Uttar Pradesh, AIR 1987 SC 1222; Mahabir vs. State of Delhi AIR 2008 SC 2343 and Siddanki Ramreddi vs. State of Andhra Pradesh, (2010)7 SCC 697.
11. However, there is some substance in the submission of the learned Additional Public Prosecutor Shri T.A. Mirza that the Investigating Officer is not cross examined on the aspect of delay ::: Uploaded on - 11/06/2019 ::: Downloaded on - 12/06/2019 01:36:34 ::: 13 a786of18&787of18 which inexplicable omission of the defence brings into play the enunciation of the Hon'ble Supreme Court in Bharat Ssingh vs. State of Uttar Pradesh (1973) 3 SCC 896 which is to the effect that if the Investigating Officer is not cross-examined to elicit an explanation for the delay, the defence can not take advantage of the delay in conducting the TIP.
12. The delay in conducting TIP, even conceding to the prosecution, that in the absence of effective cross examination of the Investigating Officer, the delay per se would not be fatal, however brings to the fore the seminal question which is whether the prosecution has established that the witness who identified the accused in the TIP did not have the opportunity to see the accused before the TIP. The sanctity and credibility of the TIP would stand compromised if the chances and opportunities of the witness seeing the accused prior to the TIP are not eliminated and contrary to the assertion of the learned Additional Public Prosecutor, the burden to proof that the witness did not have such opportunity, would undoubtedly rest on the prosecution. This aspect assumes significance in the teeth of the irrefutable material that the accused were produced in the court on three occasions to secure remand and that no evidence is led by the prosecution to the effect ::: Uploaded on - 11/06/2019 ::: Downloaded on - 12/06/2019 01:36:34 ::: 14 a786of18&787of18 that right from the time of arrest till the judicial custody, the faces of the accused were kept masked and veiled and the witness did not have any opportunity to see the accused.
13. In Asharfi and another v. The State reported in AIR 1961 Allahabad 153 the Division Bench of the Allahabad High Court observes that of all evidence of fact, the evidence about the identification of a stranger is perhaps the most elusive, and the Courts are generally agreed that the evidence of identification of a stranger based on a personal impression, even if the veracity of the witness is above board, should be approached with considerable caution and a variety of conditions must be fulfilled before evidence based on the impression can become worthy of credence. The Allahabad High Court then framed the following questions which must be answered by this Court to its satisfaction before accepting the evidence.
(1) Did the identifier know the accused from before? (2) Did he see him between the crime and the test identification?
(3) Was there unnecessary delay in the holding of the test?
(4) Did the Magistrate take sufficient precautions to ensure that the test was a fair one?
::: Uploaded on - 11/06/2019 ::: Downloaded on - 12/06/2019 01:36:34 ::: 15 a786of18&787of18 (5) What was the state of the prevailing light? (6) What was the condition of the eye-sight of the identifier?
(7) What was the state of his mind?
(8) What opportunity did he have of seeing the offenders?
(9) What were the errors committed by him?
(10) Was there anything outstanding in the features or conduct of the accused which impressed him? (11) How did the identifier fare at other test identifications held in respect of the same offence? (12) Was the quantum of identification evidence sufficient?
Considering the second question framed, the Allahabad High Court holds, and with respect I am inclined to agree, that it is the duty of the prosecution to show that from the time of the arrest of an accused person to the time of his admission into the jail precautions were taken to ensure that he was not seen by any outsider. It is only when such evidence is led by the prosecution, that the burden shift on the accused to demonstrate the contrary.
14. In Ramcharan Bhudiram Gupta v. State of Maharashtra reported in 1996(1) Bom.C.R. 190 the decision of ::: Uploaded on - 11/06/2019 ::: Downloaded on - 12/06/2019 01:36:34 ::: 16 a786of18&787of18 the Allahabad High Court was cited with approval by the Division Bench of this Court which articulates thus:
15. It is well settled that the evidence of identification can only be relied upon of all the chances of the suspects being shown to the witnesses prior to their test identification are eliminated.
To ensure that firstly, the prosecution has to adduce link evidence to the effect that right from the time of arrest till being lodged in jail, the faces of suspects were kept veiled and no one had the opportunity to see them. This has not been done in the instant case. No link evidence has been adduced by the prosecution to prove this fact. Since the burden of showing that right from arrest till being lodged in jail, the faces of the suspects were throughout kept veiled was on the prosecution and as it has failed to discharge this burden the evidence of identification is rendered worthless in the instant case. We are reinforced in our view by the decision reported in A.I.R. 1961 Allahabad P. 153 (Asharfi and another appellants v. The State Respondent), wherein in paragraph 35, James, J. spoke for the Division Bench, thus "it is the duty of the prosecution to show that from the time of the arrest of an accused person to the time of his admission into the jail, precautions were taken to ensure that he was not seen by any outsider ....."
Secondly, a perusal of the evidence of P.W. 6 Mr. Shetty, the Executive Magistrate who conducted the identification of the appellants, shows that when on 12-11-1986, he visited police station Vakola in connection with conducting the identification parade, he found that the appellants were confined in a lock up room and that the identifying witness, who was a lady, Mrs. Theresa Hill, was already sitting in the police station. In such a situation, there was a reasonable possibility of Mrs. Theresa Hill seeing the appellants prior to the identification ::: Uploaded on - 11/06/2019 ::: Downloaded on - 12/06/2019 01:36:34 ::: 17 a786of18&787of18 parade. In our view, this alone is sufficient to discard the identification evidence against the appellants. In AIR 1961 Allahabad Page 153, Asharfi and another appellants v. The State respondent, supra, the Court observed in paragraph 35 that the plea of shown does not require to be affirmatively established; it is sufficient if the accused can create a reasonable doubt in the mind of the Court. "Direct evidence may not be available but he may discharge his burden by showing, for example that he and the witnesses were present in the police station, at the same time" ..... In our view, the aforesaid observations are tailor made for this case.
15. Ramcharan Bhudiram Gupta v. State of Maharashtra is followed by the Division Bench of this Court in State of Maharashtra and others v. Rajendrasing Bahadursing Tak and others reported in 2019 ALL MR (Cri.) 1464 and it would be apposite to note the observations of the Division Bench in paragraph 21 which reads thus:
21. In Ramcharan B. Gupta v. State of Maharashtra, reported in 1995 (1) ALL MR 122, it is held by this Court in para No.15 that it is well settled that the evidence of identification can only be relied upon if all the chances of the suspects being shown to the witnesses prior to their test identification are eliminated. To ensure that firstly, the prosecution has to adduce link evidence to the effect that right from the time of arrest till being lodged in the jail, the faces of suspects were kept veiled and no one had the opportunity to see them.
In the instant case, although the accused persons were brought to the court thrice there is absolutely ::: Uploaded on - 11/06/2019 ::: Downloaded on - 12/06/2019 01:36:34 ::: 18 a786of18&787of18 no evidence on record to show that they were brought in veiled condition to the court. As regards the identification of the ornaments, it was held about 8 to 9 weeks after the incident. There was no special identification mentioned by the witnesses while identifying the ornaments before the Court.
16. TIP is not substantive evidence. However, the importance of TIP is immense from the perspective of not only the Investigating Agency and the victim but also from the perspective of the accused. TIP lends an assurance to the Investigating Agency that the investigation is proceeding in the right direction. The identification in Court by the witness of an accused who was a stranger is corroborated and the credibility of the identification strengthened if in the earlier identification the witness identifies the accused. Conversely, if the witness is not in a position to identify the accused in TIP, the Courts would ordinarily be loath to accept the evidence of identification in Court, subject however, to judicially recognized exception. The overwhelming judicial opinion appears to be that it is the duty of the prosecution to adduce link evidence to eliminate the possibility of the witness having seen the accused prior to the TIP. The Allahabad High Court and the Division Bench of this Court in Ramcharan Bhudiram Gupta vs. State of Maharashtra and State of Maharashtra and others vs. Rajendrasing Bahadursing Tak and others have taken ::: Uploaded on - 11/06/2019 ::: Downloaded on - 12/06/2019 01:36:34 ::: 19 a786of18&787of18 a view that it is the burden of the prosecution to adduce link evidence and to satisfy the conscious of the Court that the witness did not have the opportunity to see the accused before the TIP. Needless to state that I am respectfully bound by the enunciation of law by the Division Bench of this Court.
17. Shri T.A. Mirza, the learned Additional Public Prosecutor would strenuously submit that since the Investigating Officer is not cross-examined on the possibility or otherwise of the witness having seen the accused prior to the TIP the fact that the prosecution did not adduce any link evidence to show that the accused was masked or veiled when they were produced in the Court, would be of no assistance to the defence. Shri T.A. Mirza, the learned Additional Public Prosecutor would rely on the decision of the Hon'ble Supreme Court in Pramod Mandal v. State of Bihar, which decision quotes with approval the following passage in Bharat Singh v. State of U.P. reported in (1973) 3 SCC 898.
6. In Hasib v. The State of Bihar, it was observed by the Court that identification parades belong to the investigation stage and therefore it is desirable to hold them at the earliest opportunity. An early opportunity to identify tends to minimise the chances of the memory of the identifying witnesses fading away due to long lapse of time. Relying on ::: Uploaded on - 11/06/2019 ::: Downloaded on - 12/06/2019 01:36:34 ::: 20 a786of18&787of18 this decision, counsel for the appellant contends that no support can be derived from what transpired at the parade as it was held long after the arrest of the appellant. Now it is true that in the instant case there was a delay of about three months in holding the identification parade but here again, no questions were asked of the investigating officer as to why and how the delay occurred. It is true that the burden of establishing the guilt is on the prosecution but that theory cannot be carried so far as to hold that the prosecution must lead evidence to rebut all possible defences. If the contention was that the identification parade was held in an irregular manner or that there was an undue delay in holding it, the Magistrate who held the parade and the Police Officer who conducted the investigation should have been cross-examined in that behalf. Shri T.A. Mirza, the learned Additional Public Prosecutor would then invite my attention to the decision of the Hon'ble Supreme Court in Subhash Krishnan v. State of Goa, 2012 AIR SCW 4699 and in particular to the following observations:
"18. The appellant was identified by at least two of the witnesses PWs- 14 and 33 in the TIP held on 03.11.2003 at the behest of PW-30 the Special Judicial Magistrate. Though it was contended that the appellants raised an objection to the effect that they were already shown by the police officials to the said witnesses, in order to rule out any hazard on that score, the accused himself suggested that he be permitted to change his shirt which PW-30 allowed and, thereafter, he subjected himself to the TIP in which he was identified by PWs-14 and 33 without any hesitation. As pointed out by learned counsel for the State with regard to the holding of the TIP nothing was elicited in the cross examination in order to hold that the whole of the TIP was not conducted in the manner it was to be held and that the ::: Uploaded on - 11/06/2019 ::: Downloaded on - 12/06/2019 01:36:34 :::
21 a786of18&787of18 identification of the appellant was not proved in the manner known to law. PW-14 also stated in her evidence that she had seen the appellant in the village earlier though she did not know his name. Therefore, when such identification of the appellant was proved to the satisfaction of the Court, there was nothing more to be proved about the manner in which it was held or to find any flaw in the holding of the TIP. At the risk of repetition it will have to be stated that the witnesses were not questioned as to the manner in which they were asked to identify the appellant in the TIP or the alleged defect in the holding of the said parade when the witnesses were examined before the Court. Therefore, it is too late in the day for the appellant to contend that the identification parade was not carried out in the manner known to law. Coupled with the above, the evidence of other eye witnesses, namely, PWs-16, 23, 26, 27 and 34 in having identified him in the Court by making specific reference to the red colour shirt worn by him at the time of the occurrence fully corroborated the version of PWs-14 and 33. It will be appropriate to refer to the decisions of this Court reported in Simon & Ors. v. State of Karnataka -2004 (2) SCC 694 :(AIR 2004 SC 2775): (2004 AIR SCW 859), Dana Yadav alias Dahu & Ors. v. State of Bihar -2002 (7) SCC 295 :(AIR 2002 SC 3325: 2002 AIR SCW 3867) and Daya Singh v. State of Haryana - AIR 2001 SC 1188 :
(2001 AIR SCW 936). The following passages in the above referred to decisions can usefully be referred as under:
Simon & Ors. v. State of Karnataka (supra) "14............mere identification of an accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification is to test and strengthen the trustworthiness of that evidence. Courts generally look for corroboration of the sole testimony of the witnesses in court so as to fix the identity of the accused who are strangers to them in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. It has also to be borne in mind that the aspect of identification parade belongs to the stage of ::: Uploaded on - 11/06/2019 ::: Downloaded on - 12/06/2019 01:36:34 :::
22 a786of18&787of18 investigation, and there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold, or confers a right upon the accused to claim a test identification parade. Mere failure to hold a test identification parade would not make inadmissible the evidence of identification in court. What weight is to be attached to such identification is a matter for the courts of fact to examine. In appropriate cases, it may accept the evidence of identification even without insisting on corroboration.........."
Dana Yadav alias Dahu & Ors. v. State of Bihar (supra) "38. (a) xxx
(b) xxx
(c) xxx
(d) xxx
(e) xxx
(f) In exceptional circumstances only, as discussed above, evidence of identification for the first time in court, without the same being corroborated by previous identification in the test identification parade or any other evidence, can form the basis of conviction.
(g) xxx"
Daya Singh v. State of Haryana (supra) "12.........For this purpose, it is to be borne in mind that purpose of test identification is to have corroboration to the evidence of the eyewitnesses in the form of earlier identification and that substantive evidence of a witness is the evidence in the Court. If that evidence is found to be reliable then absence of corroboration by test identification would not be in any way material. Further, where reasons for gaining an enduring impress of the identity on the mind and memory of the witnesses are brought on record, it is no use to magnify the theoretical possibilities and arrive at conclusion - what in present day social environment infested ::: Uploaded on - 11/06/2019 ::: Downloaded on - 12/06/2019 01:36:34 ::: 23 a786of18&787of18 by terrorism is really unimportant. In such cases, not holding of identification parade is not fatal to the prosecution........"
It is difficult to appreciate the submission of Shri T.A. Mirza, the learned Additional Public Prosecutor that the decisions of the Hon'ble Supreme Court enunciate that it is not the burden of the prosecution to establish that the conditions fulfillment of which would lend credence to the TIP are fulfilled. In my considered view, the initial burden to prove that the necessary precautions are taken and the conditions fulfilled as would render the evidence acceptable must necessarily rest on the prosecution. Illustratively, if the evidence of the chemical analysis of the articles seized or the samples collected is adduced, it would be expected of the prosecution witnesses to state on oath that the samples collected and forwarded to the Chemical Analyzer were in sealed condition as would eliminate the possibility of tampering. If the prosecution fails to discharge the initial burden of showing that the samples were in sealed condition, the fact that the defence did not cross-examine the I.O. on the aspect of the sealing of samples, and the defence would really not be expected to do so, would not preclude the defence from questioning the probative value of the evidence.
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18. Shri T.A. Mirza, the learned Additional Public Prosecutor has with usual fairness not disputed the submission of the learned Senior Counsel Shri Anil Mardikar that other than the identification of the accused there is no cogent material to connect the accused with the crime. It would therefore, be apt to note the following observations of the Hon'ble Supreme Court in Iqbal and another v. State of Uttar Pradesh reported in (2015) 6 SCC
623.
15. The evidence of identification of the miscreants in the test identification parade is not a substantive evidence. Conviction cannot be based solely on the identity of the dacoits by the witnesses in the test identification parade. The prosecution has to adduce substantive evidence by establishing incriminating evidence connecting the accused with the crime, like recovery of articles which are the subject-matter of dacoity and the alleged weapons used in the commission of the offence.
17. In order to bring home the guilt of the accused persons, it is the duty of the prosecution to prove that the stolen property was in the possession of the accused persons or that the accused had knowledge that the property was a stolen property or the accused persons had converted the stolen property. No such recovery was made to connect the appellants and other non-appealing accused persons with the crime.
19. The courts below based the verdict of conviction solely on the oral testimony of PW1 to PW 3 and the identification of the appellants and other non-appealing accused in the test ::: Uploaded on - 11/06/2019 ::: Downloaded on - 12/06/2019 01:36:34 ::: 25 a786of18&787of18 identification parade. As discussed earlier, in the absence of any other evidence like recovery of stolen jewellery or other articles strengthening the prosecution case, conviction cannot be based solely on the identification of the accused in the test identification parade. Serious doubts arise as regards identification of the accused regarding complicity of the appellants in the commission of dacoity and their identification by the witnesses and the prosecution has failed to prove the guilt of the accused beyond reasonable doubt and in our view, the conviction of the appellants under Section 396 IPC cannot be sustained and is liable to be set aside. I am satisfied that there is no substantive evidence of identification of the accused in Court. The evidence of TIP, which in any event is not substantive evidence is even otherwise unacceptable for reasons recorded supra. Moreover, there is no established incriminating material in the shape of recovery of stolen articles etc. to connect the accused with the crime. The learned Sessions Judge has based the conviction substantively if not entirely on the identification of the accused. I am therefore, not persuaded to uphold the judgment impugned.
19. The judgment dated 19.11.2018 rendered by the Sessions Judge, Bhandara in Sessions Trial 33 of 2015 is set aside. ::: Uploaded on - 11/06/2019 ::: Downloaded on - 12/06/2019 01:36:34 ::: 26 a786of18&787of18
20. Criminal Appeals 786 of 2018 and 787 of 2018 are allowed. The accused be released from custody forthwith unless their custody is required in any other crime.
JUDGE RSB/NSN ::: Uploaded on - 11/06/2019 ::: Downloaded on - 12/06/2019 01:36:34 :::