1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.617 OF 1999 Gaya @ Gajanan Dhondu Shinde ) Age 31 years, residing at ) 48 – 49, Kolyachi Chawl, ) Dr. Borges Road, Parel, ) Mumbai – 400 012 ) .....Appellant. (Original Accused No.2) V/s The State of Maharashtra ) (at the instance of D.N. Nagar ) Police Station Vide C.R. No.588/94) C.C. No.631/P/95 Sessions Case ) No.945/95 with S.C. No1331/95 ) .....Respondent. ----- Mrs. V.R. Raje for the appellant. Mr. D.P. Adsule, APP for the State. ----- CORAM: V.M. KANADE, J. DATE: 7th October, 2008 ORAL JUDGMENT: 1 Heard the learned Counsel appearing on behalf of the appellant and the learned APP for the State. 2 The appellant has been convicted by the Trial Court under 2 sections 395, 394 read with section 34 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for seven years and to pay fine of Rs 1000/- and, in default of payment of fine, to suffer rigorous imprisonment for further six months. He is also convicted under section 397 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for seven years. 3 Counsel appearing on behalf of the appellant pointed out that the appellant has already undergone the sentence and has been released by the Police. However, she submits that she would like to argue the matter on merits. She submitted that the incident in question took place on 26/11/1994. Prosecution case is that, on that day, the complainant Thokersey Premji Shah was on his way to Canara Bank to deposit the money . He was carrying a bag, containing Rs 2,21,000/-. It is the case of prosecution that one person caught hold of his hand and the other person showed a knife to him and the third person inflicted a blow on his hand with an iron rod and ran away with the bag. A complaint was immediately lodged and an identification parade was held on 13/12/1994. The police had arrested in all 11 accused. The Trial Court acquitted the other accused except the present appellant. Accused No.1 was absconding at the time of trial. 4 Counsel for the appellant invited my attention to the statement of P.W 1 and statement of P.W 4. - the Special Executive Magistrate who conducted the identification parade. She submitted that no recovery has been made at the instance of the present appellant. She submitted that the test identification parade was not held in accordance with the guidelines laid down under the criminal manual. 3 She submitted that, therefore, no reliance could be placed on the test identification parade. She submitted that, apart from the statement of P.W. 1, there is no other eye witness and, therefore, the appellant was liable to be acquitted. 5 Counsel for the State, however, vehemently urged that P.W. 1 had clearly stated in his evidence that accused No.2 had shown a knife and that he had identified accused No.2 in the test identification parade. He also invited my attention to the evidence of other witnesses. He submitted that the panch witness had clearly indicated that some currency notes were found on the ground where the panchanama was held. The learned APP has taken me through the evidence of other witnesses on record in support of his contentions. 6 In my view, from the evidence which is on record, it cannot be said that the prosecution has proved its case beyond reasonable doubt. The entire incident had taken place in less than five minutes. The accused No.2 - present appellant, had allegedly shown knife to the complainant. It has to be noted here that, under these circumstances, the test identification parade assumes importance because i.e. the only way in which involvement of the present appellant can be established beyond reasonable doubt. It is an admitted position that neither recovery of knife which was allegedly used in the said offence was made nor money which was stolen by the accused was recovered at the instance of the present appellant. There is much substance in the submissions made by the learned Counsel appearing on behalf of the appellant that the test identification parade has not been held in accordance with the guidelines which are laid down in the criminal manual and, therefore, 4 the entire evidence of holding of the test identification parade has to be discarded. From the evidence of the Special Executive Magistrate, it can be seen that the accused was not given any choice of standing between the dummies. The Special Executive Magistrate had asked the accused to stand between the persons of his choice. Apart from this discrepancy and breach of guidelines laid down under the criminal manual, the Special Executive Magistrate has noted in his evidence that, initially, the complainant had identified only accused No.1 and he went out of the room and while he was going out, the Special Executive Magistrate asked him whether there was any other person who could be identified as an accused and only, thereafter, the complainant went back and identified the present appellant who was standing between the persons directed by the Special Executive Magistrate. The panchanama also records this incident. There is, therefore, a clear lacuna in holding of the test identification parade by the Special Executive Magistrate. The Apex Court as also this Court have, from time to time, held that the test identification parade has to be held in accordance with the guidelines laid down in the criminal manual and any deviation in following the said guidelines would result in the said evidence of the test identification parade being discarded by the Court. There is a clear infraction of the guidelines by the Special Executive Magistrate and, therefore, holding of the test identification parade becomes very doubtful. There is no other option, therefore, but to discard the said evidence since it is in clear violation of the guidelines issued in the criminal manual. Once the evidence of identification of the appellant is discarded, there is no other witness who corroborates the testimony of P.W. 1 and none of the other witnesses has said anything about the present appellant. In the result, the finding recorded by the Trial Court against the present appellant – 5 original accused No.2 will have to be set aside. The appellant has already undergone the sentence and has been released by the concerned jail authorities which is evident from the letter which is sent by the Superintendent, Yerawada Central Prison, Pune-6. The said letter is taken on record and marked as “A”. 7. For the aforesaid reasons, the following order is passed:- O R D E R The judgment and Order passed by the Trial Court is set aside. The appellant/accused is acquitted of the offence with which he is charged. The appellant has already undergone the sentence and has been released from the jail which is evident from the letter which is sent by the Superintendent, Yerawada Central Prison, Pune-6. It is clarified, however, that if the appellant has not been released in connection with this case, he may be released forthwith, if he is not wanted in any other case. Appeal is allowed in the aforesaid terms. (V.M. KANADE, J.)