HONOURABLE SRI JUSTICE RAJA. ELANGO CRIMINAL REVISION CASE No. 19 OF 2006 DATED 18TH JUNE, 2010. BETWEEN Nobin Kumar Mohanty @ Pintu …..Petitioner/Accused No.3 And State of AP Rep. by Public Prosecutor, High Court of AP. ….Respondent/Complainant HONOURABLE SRI JUSTICE RAJA. ELANGO CRIMINAL REVISION CASE No. 19 OF 2006 ORDER: This Criminal Revision Case under Sections 397 and 401 Cr.P.C. arises out of the judgment dated 07.10.2005 passed in Criminal Appeal No. 117 of 2004 whereby the learned I Additional District & Sessions Judge, Srikakulam, conﬁrmed the conviction and sentence imposed by the learned Assistant Sessions Judge, Sompet, against the petitioner/accused No.3 in the order dated 4.8.2004 passed in C.C.No. 50 of 2002 for the oﬀence punishable under Section 395 IPC. Brief facts of the case are as follows: P.W.3 is the owner of Ambassador car bearing No. AP.30T.1458 and is managing it as a taxi at Taxi Stand, Amadalavalasa. P.W.1 is the driver and P.W.2 is the cleaner of the said taxi. On 12.8.1987 at about 6.00 p.m. ﬁve persons came to Amadalavalasa taxi stand and engaged the taxi of P.W.3 for hire of Rs.500/- for dropping at Palasa. Accordingly ﬁve persons and P.Ws. 1 and 2 started at about 6.00 pm and when they reached Bandi gate, the accused asked P.W.1 to take the vehicle to Pundi on the pretext that they have to meet a person at Pundi. When the car reached Kaviti Agraharam area, one of the persons who sat in rear seat put a rope around the neck of P.W.1 and the other pushed him and A.1 drove the car and while the car was proceeding towards Vajrapukotturu area, P.W.1 was tried and was pushed out from the car, later after the car proceeded further. P.W.2 the cleaner was also pushed out and ﬁve persons out of whom P.Ws. 1 and 2 have identiﬁed the accused A1 and A3 and another A.4 drove away with the car. P.W.1 after untying himself went to Kasibugga police Station at about 10.00 p.m. and presented a report to P.W.9 Sub Inspector of Police, Vajrapukotturu Police Station who was the circle oﬃcer, Kasibugga, registered a case as a case in Crime No. 63 of 1997 and sent P.W.1 for medical examination due to the injuries on his neck. P.W.13 Dr. R.Ramanaidu examined P.W. 1 and found ligature marks over the neck of P.W.1 and abrasions over fore arm and opined that the injuries are simple in nature and issued Ex.P.10 wound certificate. P.W.11 the Inspector of Police, Kasibugga circle took investigation and examined P.Ws. 1 and 2 on 13.8.1997 and recorded their statements. While the matter stood thus, the Inspector of Police, Lingaraj Police Station seized the car and on receiving the information, P.W.11 Inspector of Police went to Gopalapur Police Station and after following the formalities, seized the car and produced before the JMFC, Palasa. In the bank robbery case, P.W.5 and P.W.10, Inspectors of Police, Chatrapur arrested A.3 and A.1 respectively on 15.1.1998 and the same was informed to their counter part P.W.11, the Inspector of Police, Kasibugga, who ﬁled a memo before the Chief Judicial Magistrate, Berhampur, for police custody for interrogation, but the Chief Judicial Magistrate, Berhampur directed P.W.11 to interrogate A.1 to A.5 in the jail itself. After interrogation, P.W.1 ﬁled a memo before the Chief Judicial Magistrate, Srikakulam, with a request to nominate a Magistrate for conducting test identiﬁcation parade, but as the accused were in Berhampur jail, the police were directed to ﬁle a memo for conducting test identiﬁcation parade at Berhampur. Accordingly, P.W.11 ﬁled a memo before the Chief Judicial Magistrate, Berhampur, who had nominated P.W.12 to conduct test identiﬁcation parade, wherein P.Ws. 1 and 2 have identiﬁed A.1, A.3 and A.4. Therefore, charge sheet was laid. Based on the appreciation of the evidence on record and on hearing both sides, the trial Court found the accused guilty of the oﬀence punishable under Section 395 IPC and accordingly they were convicted and sentenced to R.I. for six years and to pay a ﬁne of Rs.2,000/- each. On appeals preferred by A1 and A3, the lower appellate Court conﬁrmed the same. Aggrieved by the same, A.3 preferred present revision. The learned Counsel for the petitioner submitted that the entire conviction by the trial Court and the lower Appellate Court was based on the identiﬁcation of the petitioner herein in the test identiﬁcation parade. There was no recovery from the petitioner herein and it is also evident that the test identiﬁcation parade was conducted long after the incident and that prior to the identiﬁcation parade, photograph of the petitioner was shown to the witnesses concerned. After hearing the arguments on both sides and perusing the entire record, it is evident that except the identiﬁcation parade in which the witnesses identiﬁed the accused, no clinching evidence was produced by the prosecution to prove against the accused. It is well settled law that merely the persons identiﬁed the accused in the test identiﬁcation parade cannot be a ground to convict a person unless and otherwise some positive evidence is adduced by the prosecution to prove the guilt of the accused concerned. Further in Ex.P.1, it is not stated by the witnesses regarding the features of the accused persons involved in the crime. Even during the time of examination of the witnesses by the investigating oﬃcer also, the witnesses have not stated regarding the features of the persons involved in the crime. In such circumstances the identiﬁcation of the accused in the test identiﬁcation parade, that too, after seeing the photograph shown by the Investigating Oﬃcer prior to the investigation, this Court is of the view that both the Courts below committed error in accepting the evidence adduced by the prosecution. Considering the above said facts, this Court thought it ﬁt that the conviction and sentence imposed by the Trial Court and conﬁrmed by the lower appellate Court against the petitioner herein is liable to be set aside and accordingly the same is hereby set aside. The Criminal Revision Case is accordingly allowed. Fine amount, if any, paid by the petitioner is directed to be returned to him. ------------------------------------ JUSTICE RAJA ELANGO DATED 18TH JUNE, 2010. Msnr.