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 2 (Cri appeal 34 of 2001) ----- Mr.Ganesh Gole for Appellants Mrs. M.R. Tidake-APP for the State ----- 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 3 (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, 4 (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. 5 (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 6 (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 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. 7 (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.)