.(1). IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.647 OF 2006 1. Manish @ Baban Sakharam Kadam, ] Aged 23 years, residing at ] Room No.348, Jijamata Nagar, ] Dabholkar Adda, Kalachowki, ] Mumbai-400 033. ] 2. Tukaram Dhondu Kadam, ] Aged: 24 years, residing at ] Room No.257, Jijamata Nagar, ] Dabholkar Adda, Kalachowki, ] Mumbai-400 033. ] (At present lodged at Nashik ] Road Central Prison, Nashik. ] ..APPELLANTS. Versus State of Maharashtra. ] ..RESPONDENT. .... Mr.Y.M.Choudhary, Adv. for Appellant No.1. Mr.B.R.Patil, Adv. for Appellant No.2. Mr.K.V.Saste, APP, for the State. .... CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. DATED : 23rd June, 2008. DATED : 23rd June, 2008. DATED : 23rd June, 2008. ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : 1. Through this appeal, the appellants-orig.accused Nos.3 & 4 have challenged the judgment and order dated 29th June, 2006 passed by the learned 11th Ad-hoc Additional Sessions Judge, Sewree, Mumbai in Sessions Case No.45 of 1997 along with Sessions Case No.10 of 2002. By the said judgment and order, the learned Sessions Judge convicted the .(2). appellants-orig.accused Nos.3 & 4 for the offences punishable under Sections 392/394 read with 397 and 34 of IPC. For the said offences the appellants were sentenced to suffer RI for ten years and fine of Rs.500/- in default RI for fifteen days. 2. The prosecution case, briefly stated, is as under :- . The complainant PW-1 Girishkumar Kumar had a shop at Abdul Rehman Street, Mumbai. PW-2 Murari Jha and PW-3 Shambhu were working as delivery boys and collection boys at his shop. The cash amount collected by the delivery boys was kept in the drawer of the table in the shop. On the next day, the cash was deposited in the bank. On 14.11.1995 at about 8:00 p.m. four persons entered into the shop of the complainant. Three of them were having choppers with them. They threatened the complainant to give money. Then they took out money kept in the drawer in the table. At that time PW-2 Murari protested hence blow of chopper was given on the head of Murari by one of the appellants. After taking money, all of them ran away. Thereafter, PW-1 lodged his FIR. .(3). During the course of investigation, original accused No.1 came to be arrested on 20.11.1995. Charge-sheet against him came to be filed and the case was numbered as Sessions Case No.45 of 1997. Thereafter on 3rd October, 1997 both the present appellants along with original accused Nos.2 & 5 came to be arrested. Charge-sheets came to be filed against them and the said case was numbered as Sessions Case No.10 of 2002. The case of the prosecution is that all the original five accused came to be identified in the identification parade. 3. Charge came to be framed against the appellants along with original accused Nos.1, 2 & 5 under Section 452 read with 34, under Section 392 read with 34, under Section 394 read with 34 and under Section 397 of IPC. All the accused pleaded not guilty to the said charge and claimed to be tried. The defence of the accused is that of total denial and false implication. After going through the evidence adduced by the prosecution, the learned Sessions Judge has convicted and sentenced the appellants as stated in para-1 above. Hence, this appeal. .(4). 4. I have heard Mr.Choudhary, the learned Counsel for the appellant No.1-orig.accused No.3 and Mr.Patil the learned Counsel for appellant No.2-orig.accused No.4 and the learned APP for the State. I have also perused the impugned judgment and order as well as the record pertaining to the present case. After carefully considering the matter, I am of the opinion that this appeal deserves to be allowed. 5. The prosecution case is founded on the evidence of three eye witnesses i.e. PW-1 GirishKumar Kumar, PW-2 Murari Jha and PW-3 Shambhu. There is no recovery at the instance of the present appellants. Thus, the only material against the appellants is the evidence of these three eye witnesses. Admittedly, none of the witnesses knew any of the accused persons prior to the incident. As the accused persons were unknown to the witnesses, test identification parade came to be held. It is the prosecution case that in the parade these three witnesses have identified the appellants as well as other accused. Thereafter in the Court these witnesses have identified the present appellants as well as three other accused persons as having taken part in the .(5). incident, even though as per the complainant only four persons have entered into the shop. 6. PW-5 Mr.Vichare is the Special Executive Officer who held the parade. In the present case the incident has occurred on 14th November, 1995 however the Test Identification Parade came to be held on 18th October, 1997. According to PW-5 Mr.Vichare the parade was held in Geeta Gruh building, however, PW-3 Shambhu has clearly stated that the parade was held in L.T.Marg Police Chowky. PW-2 Murari who has participated in the same parade has stated that the parade was held near a temple situated by the side of the crime branch office. He has further stated that seven persons were standing in a row and he had identified one of them. Thereafter four persons were made to stand in a row and he identified three of them. On the other hand PW-3 Shambhu says that 20-25 persons were present and out of them he had identified four persons. PW-1 has stated that he was taken to a hall and in the said hall he identified three persons. However, in the Court he identified four persons stating that he had identified all of them in the parade. From the evidence of these witnesses, it is seen that .(6). there are serious discrepancies regarding where T.I.P. was held. Each witnesses has given a different version regarding where the parade was held and each witness has also stated different number of suspects and other details which are not in consonance with each other. This fact raises doubt in the mind whether T.I.P. was actually held and whether the witnesses had actually identified the appellants in the parade. 7. Moreover, it is seen that police was very much present at the time when the parade was held. This fact is clear from the evidence of PW-1 Girishkumar. PW-1 Girishkumar has stated that in the room where the parade was held except police and the accused none else was present. So also PW-3 Shambhu has stated that at the place where the T.I.P. was held besides the police officers of L.T. Marg Police Station other police were also present. It is pertinent to note that present case pertains to L.T. Marg Police Station. Thus, from the evidence of these witnesses it is seen that the police officers of L.T. Marg Police Station were very much present at the time when the parade was being conducted. .(7). 8. The learned APP contended that the real and substantive evidence is the one given by the witness in the Court and if the witnesses have identified the accused in the Court, the same should be relied upon. In answer to this contention, the learned Counsel for the appellants has placed reliance on the observations in para-8 of a decision of the Supreme Court in the case of Shaikh Umar Ahmed Shaikh and another V. State of Shaikh Umar Ahmed Shaikh and another V. State of Shaikh Umar Ahmed Shaikh and another V. State of Maharashtra Maharashtra Maharashtra reported in 1998 CRI.L.J. 2534 1998 CRI.L.J. 2534 1998 CRI.L.J. 2534. In para-8 the Supreme Court observed as under : "The Designated Court after having rejected the evidence of identification parade on the ground that the suspects were possibly shown to the witnesses, relied upon the evidence of identification of the accused in the Court by the two witnesses and on that evidence recorded conviction against the appellants. No doubt, the evidence of identification parade is not a substantive evidence, but its utility is for purposes of corroboration. In other words, it is utilised for corroboration of the sworn testimony of witnesses in .(8). Court as to the identity of the accused who are strangers to them. The real and substantive evidence of the identity of the accused comes when witnesses give statement in the Court, identifying the accused. It is true that in the present case, PW-2 and PW-11 identified the two accused who are the appellants before us in the Court. But, the question arises; what value could be attached to the evidence of identity of accused by the witnesses in the Court when the accused were possibly shown to the witnesses before the identification parade in the police station. the Designated Court has already recorded a finding that there was strong possibility that the suspects were shown to the witnesses. Under such circumstances, when the accused were already shown to the witnesses, their identification in the Court by the witnesses was meaningless. The statement of witnesses in the Court identifying the accused in the Court lost all its value and could not be made basis for recording conviction against .(9). the accused. .." . The Supreme Court further observed that "The reliance of evidence of identification of the accused in the Court by PW-2 and PW-11 by the Designated Court, was erroneous.... Since conviction of the appellants have been recorded by the Designated Court on wholly unreliable evidence, the same deserves to be set-aside. .." 9. From the evidence of the witnesses, it is seen that the parade was held either in the L.T. Marg police chowky or in some open ground next to a temple. Moreover, police was very much present at the time of parade. Mr.Choudhary submitted that T.I.P. should not be held at the police station. Moreover presence of police, during the parade, would vitiate the identification of the accused. Reliance is placed on the decision of this Court in the case of Akbar Nazir Ahmed & Ors. Akbar Nazir Ahmed & Ors. Akbar Nazir Ahmed & Ors. Vs. State of Maharashtra Vs. State of Maharashtra Vs. State of Maharashtra reported in 2003 ALL MR 2003 ALL MR 2003 ALL MR (Cri) 1828 (Cri) 1828 (Cri) 1828 wherein this Court observed in Para-20 as under : .(10). "It is now well settled that while conducting identification parade it is necessary that such parades are not conducted in the presence of police officers and it should be as far as possible conducted when the accused are in jail custody and not at the police station. The object of the identification parade is to make sure that the ability of the witness to recognise the suspect has been fairly and adequately tested. It should be fair and seem to be fair and every precaution must be taken to exclude any suspicion of unfairness or risk of erroneous identification. The police officers concerned with the case should not take part in conducting the parade. .." . So also reliance is placed on the decision of the Supreme Court in the case of Ramkisan Ramkisan Ramkisan Mithanlal Sharma and others Vs. State of Bombay Mithanlal Sharma and others Vs. State of Bombay Mithanlal Sharma and others Vs. State of Bombay reported in AIR 1955 S.C. 104 (Vol.42, C.N.23) AIR 1955 S.C. 104 (Vol.42, C.N.23) AIR 1955 S.C. 104 (Vol.42, C.N.23). In the said case no reliance was placed on the .(11). identification of the accused as police officers were present during the parade. In the said case, it is observed as under : "This argument would have availed learned Attorney-General if after arranging the test identification parade the police had completely obliterated themselves and the Panch witnesses were left solely in charge of the parade. .... In the case of the identification parades in the present case however the police officers were present all throughout the process of identification and the Panch witnesses appear only to have been brought in there for the purpose of proving that the requirements of law in the matter of holding the identification parades were fully satisfied. .." 10. This Court time and again has stated that the identification parade should be held in accordance with the rules made for holding the .(12). identification parades. The rules of the Criminal Manual reads as under : "16(3)(vi). No person, other than the persons in the parade, and the two respectable persons, should be allowed to remain in the room where the identification proceedings are being held. In particular, all police officers and constables should be asked to withdraw themselves completely from the room. There is no objection to any of them remaining outside the room or otherwise at hand, ready to be called up in case the accused creates trouble, or in case of emergency. They should, however, not be visible from the room or the place where the parade is being held." . The above rule has not been observed in the present case. 11. In view of the facts and admissions stated above, there appears serious doubt whether the T.I.P. was actually held. Even assuming the .(13). T.I.P. was held, it is seen that there are too many lacunae in holding the parade, hence the identification of the appellants cannot be relied upon. As observed earlier, there is no other material which connects the appellants with the offence. Thus, the conviction of the appellants cannot be allowed to stand. 12. In the result, the appeal is allowed. The judgment and order dated 29th June, 2006 passed by the learned 11th Ad-hoc Addl.Sessions Judge, Sewree, Mumbai in Sessions Case No.45 of 1997 @ 10 of 2002 is set aside. The appellants- Manish @ Baban Sakharam Kadam and Tukaram Dhondu Kadam are acquitted of the offences punishable under Sections 392/394, read with Section 397 and 34 of IPC. Appellants are in jail. They be set at liberty forthwith if not required in any other case. (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.)