SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Kanha vs The State Of Madhya Pradesh on 6 August, 2018

1. CRA No.102/2017
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
Kanha vs. State of M.P.

HIGH COURT OF MADHYA PRADESH, JABALPUR
BENCH INDORE
( Single Bench )
( Hon’ble Shri Justice Virender Singh )

Criminal Appeal No.102 of 2017

Kanha
VERSUS
State of Madhya Pradesh
*****
Shri S.K.Sharma, learned counsel for the appellant.
Shri Hemant Sharma, learned Public Prosecutor for the
Respondent/State.
*****

JUDGEMENT

( Passed on this 7th day of August, 2018 )

With the consent of both the parties, heard finally.
The appellant has preferred this appeal against
judgement and order dated 14.12.2016 passed in S.T.
No.843/15 by 2nd ASJ, Mhow, District, Indore whereby
the learned trial Court has convicted the appellant under
Sections 394 and 342 of IPC and sentenced him for 7
years and 1 year R.I. with fine of Rs.10,000/- with default
stipulation.

2. Prosecution case in brief is that on 14.06.2015,
when the complainant Sanidhya Goswami, Parth

2. CRA No.102/2017
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
Kanha vs. State of M.P.

Goswami, Ishan Goswami and Thomson Josef had gone
for a picnic at Kajligarh, four unknown scoundrel armed
with daranta, gofan and sticks attacked on them. They
threatened them to hand over their valuables. The person
having gofan, struck it on right cheek of Sanidhya
Goswami. The person having daranta snatched mobile
and purse containing Rs.2000/- from him and also
snatched I-phone 6 worth of Rs.71,500/- and Rs.900/-
cash from Sanidhya Puri, bag of LP company and
Rs.250/- cash from Arpan, one Nokia Mobile and Cash of
Rs.2,000/- from Parth Puri and purse containing Rs.100/-
from Ishan Goswami and one steel Kada, one HTC
mobile, Rs.500/- cash, two ATM Cards, Driving License,
Aadhar Card and Registration Card of motorcycle from
Thomson Josef by putting them in fear of death. They
also detained them for an hour near a nullah and asked
them to go back with threat that if they do not follow the
orders, they will kill them. After the incident, Sanidhya
Puri lodged report with the police Station-Simrol which
was registered at crime No.224/2015 under Section 342,
292 and 394 of IPC. During investigation, the police
apprehended the appellant alongwith the co-accused
persons Sanjay and Shriram and interrogated them. on the
information given by the appellant, the police recovered
four currency notes of Rs.500/- denomination, in total
Rs.2,000/- cash, one gray colour Samsung mobile and a

3. CRA No.102/2017
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
Kanha vs. State of M.P.

bamboo stick from his possession. Some other recoveries
were also made from the co-accused persons. The
appellant was put for identification and all the
complainants have identified him. After other usual
investigation, the police filed charge-sheet against three
accused persons namely Kanha, Sanjay and Shriram.
Kanha has preferred this appeal.

3. The appellant was charged U/s 394 and 342 of IPC.
He abjured his guilt. After appreciating the evidence, the
learned trial Court held him guilty and punished as stated
in para 1 above.

4. The appellant has preferred the present appeal
mainly on the ground that judgment and order of the trial
Court is contrary to law and facts available on record. The
learned trial Court committed error in not considering the
material contradictions and omissions appeared in the
statements of prosecution witnesses and also in discarding
defence version. It is also submitted by the learned
counsel for the appellant that the articles recovered from
his possession were not identified and no specific stolen
property is recovered from his possession. Nothing
incriminating was found from him. The cash recovered
from him is belongs to him. Before putting them for
identification in jail, they were shown to the complainant
and other witnesses at the police station itself. Therefore,
he prayed that the impugned judgment and order be set-

4. CRA No.102/2017
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
Kanha vs. State of M.P.

aside and he be acquitted.

5. Learned Public Prosecutor has opposed the prayer.
Inviting my attention towards para no.15 and 18 of the
impugned judgement, learned public prosecutor has
submitted that stolen property was recovered from
possession of the appellant and he was very well
identified by the witnesses during identification parade
and more important, before the trial Court during the trial.
He supported the judgment and order by submitting that
there is clear evidence against the appellant, therefore,
according to him, appeal deserve to be dismissed.

6. I have considered rival contentions of the parties and
have perused the record.

7. The appellant has not challenged the incident,
therefore, no need to discuss the same in detail.

8. As per the prosecution case, on the pointing of
appellant, one Samsung phone, Rs.2,000/- and a bamboo
stick have been recovered from his possession. The
prosecution has proved his memorandum statements
Ex.P/8 and seizure of articles Ex.P/11, but no other
evidence is produced by the prosecution to establish that
the articles recovered from possession of the appellant
were stolen property.

9. In para no.4 of his cross-examination, the
complainant Sanidhya Puri (PW-2) has admitted that

5. CRA No.102/2017
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
Kanha vs. State of M.P.

news regarding arrest of the appellant was published in
the news papers on the next date of the incident and after
reading that news, he went to the police station and had
seen all the scoundrel at the police station. Ishan
Goswamin PW-9 has also admitted in para no.7 of his
cross-examination that before identification in the jail, the
police officers had shown the appellant to him and his
companions and have got them identified. Similar is the
admission of Parthpuri PW-10 in para no.6 of his cross-
examination. Though Vijayndra Puri PW-3 has not stated
such facts, but looking to the statements of Sanidhya,
Ishan and Parth, there are certain reasons to doubt the
sanctity of the identification parade conducted for
Vijayendra Goswami also.

10. It is true that before the Court, the complainants and
other witnesses have identified the appellant and this is
substantial evidence, but looking to the status of
identification of the accused persons, which appeared in
the statements of witnesses as discussed above, this
identification loses it’s probative value and can not be
made basis for conviction of the appellant.

11. In this regard, law is well settled. It is held in the
case of C. Muniappan and Ors Vs. State of T. N/ D. K.
Rajendran and Ors. etc. Vs. State of T. N. AIR 2010 SC
3718 that test identification parade is not substantial
evidence. It has only corroborative value. Para 36 of the

6. CRA No.102/2017
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
Kanha vs. State of M.P.

judgement reads thus:

“36. Thus, it is evident from the above, that the
Test Identification Parade is a part of the
investigation and is very useful in a case where
the accused are not known before-hand to the
witnesses. It is used only to corroborate the
evidence recorded in the court. Therefore, it is not
substantive evidence. The actual evidence is what
is given by the witnesses in the court. The Test
Identification Parade provides for an assurance
that the investigation is proceeding in the right
direction and it enables the witnesses to satisfy
themselves that the accused whom they suspect is
really one who was seen by them at the time of
commission of offence. The accused should not
be shown to any of the witnesses after arrest, and
before holding the Test Identification Parade, he
is required to be kept “baparda”.

12. In Kanan Vs State of Kerala 1979 SCC (Cri) 621:-
the hon’ble Apex Court has stated that :

“It is well settled that where a witness identifies
an accused who is not known to him in the court
for the first time, his evidence is absolutely
valueless unless there has been a previous T.I
parade to test his powers of observations. The
idea of holding T.I parade under section 9 of the
Evidence act is to test the veracity of the witness
on the question of his capability to identify an
unknown person whom the witness may have
seen only once. If no T.I parade is held then it
will be wholly unsafe to rely on his testimony
regarding the identification of an accused for the
first time in court”

13. Similar view is taken in Mangaliya alias Mangal
Singh Vs State of M.P 2005(1) MPHT 469, where it is
held that in case of rare committed by an unknown
person, when the accused was in custody at police station,

7. CRA No.102/2017
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
Kanha vs. State of M.P.

prosecutrix was called there and accused was shown to
her before the test identification parade arranged in jail
after a month, this is sufficient to discard the whole
prosecution case about the identification of the accused.
Identification of the accused in police custody has no
value and cannot be relied upon.

14. In Prahlad Singh Vs State of M.P 1997(8) SCC 515
also the Court held that identification in court by a child
witness whom the accused was shown outside the court in
that case the substantive evidence of the witness in court
identifying the accused is unacceptable.

15. Dana Yadav alias Dahu and Ors. v. State of Bihar
(2002) 7 SCC 295 : (AIR 2002 SC 3225) has elaborated
upon the importance of test identification parade in great
details. The relevant para Nos.6, 7 and 8 read thus:

“6. It is also well settled that failure to hold test
identification parade, which should be held with
reasonable dispatch, does not make the evidence
of identification in court inadmissible, rather the
same is very much admissible in law. Question is,
what is its probative value? Ordinarily,
identification of an accused for the first time in
court by a witness should not be relied upon, the
same being from its very nature, inherently of a
weak character, unless it is corroborated by his
previous identification in the test identification
parade or any other evidence. The purpose of test
identification parade is to test the observation,
grasp, memory, capacity to recapitulate what a
witness has seen earlier, strength or
trustworthiness of the evidence of identification of
an accused and to ascertain if it can be used as
reliable corroborative evidence of the witness

8. CRA No.102/2017
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
Kanha vs. State of M.P.

identifying the accused at his trial in court. If a
witness identifies the accused in court for the first
time, the probative value of such uncorroborated
evidence becomes minimal so much so that it
becomes, as a rule of prudence and not law,
unsafe to rely on such a piece of evidence. We are
fortified in our view by a catena of decisions of
this Court in the cases of Kanta Prashad v. Delhi
Admn., (AIR 1958 SC 350), Vaikuntam
Chandrappa (AIR 1960 SC 1340), Budhsen (AIR
1970 SC 1321), Kanan v. State of Kerala (AIR
1979 SC 1127), Mohanlal Gangaram Gehani v.
State of Maharashtra (AIR 1982 SC 839),
Bollavaram Pedda Narsi Reddy (AIR 1991 SC
1468), State of Maharashtra v. Sukhdev Singh
(AIR 1992 SC 2100), Jaspal Singh v. State of
Punjab (AIR 1997 SC 332), Raju v. State of
Maharashtra (AIR 1998 SC 275), Ronny (AIR
1998 SC 1251), George v. State of Kerala (AIR
1998 SC 1376), Rajesh Govind Jagesha (AIR
2000 SC 160), State of H.P. v. Lekh Raj (AIR
1999 SC 3916) and Ramanbhai Naranbhai Patel v.
State of Gujarat (1999 AIR SCW 4770).

7. Apart from the ordinary rule laid down in the
aforesaid decisions, certain exceptions to the same
have been carved out where identification of an
accused for the first time in court without there
being any corroboration whatsoever can form the
sole basis for his conviction. In the case of
Budhsen it was observed:

“There may, however, be exceptions to this
general rule, when for example, the court is
impressed by a particular witness, on whose
testimony it can safely rely, without such or other
corroboration.”

8. In the case of State of Maharashtra v. Sukhdev
Singh it was laid down that if a witness had any
particular reason to remember about the identity
of an accused, in that event, the case can be
brought under the exception and upon solitary
evidence of identification of an accused in court
for the first time, conviction can be based. In the
case of Ronny it has been laid down that where

9. CRA No.102/2017
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
Kanha vs. State of M.P.

the witness had a chance to interact with the
accused or that in a case where the witness had an
opportunity to notice the distinctive features of the
accused which lends assurance to his testimony in
court, the evidence of identification in court for
the first time by such a witness cannot be thrown
away merely because no test identification parade
was held. In that case, the accused concerned had
a talk with the identifying witnesses for about 7/8
minutes. In these circumstances, the conviction of
the accused, on the basis of sworn testimony of
witnesses identifying for the first time in court
without the same being corroborated either by
previous identification in the test identification
parade or any other evidence, was upheld by this
Court. In the case of Rajesh Govind Jagesha it
was laid down that the absence of test
identification parade may not be fatal if the
accused is sufficiently described in the complaint
leaving no doubt in the mind of the court
regarding his involvement or is arrested on the
spot immediately after the occurrence and in
either eventuality, the evidence of witnesses
identifying the accused for the first time in court
can form the basis for conviction without the
same being corroborated by any other evidence
and, accordingly, conviction of the accused was
upheld by this Court. In the case of State of H.P. v.
Lekh Raj it was observed (at SCC p. 253, para 3)
(AIR 1999 SC 3916, Pp. 3917-18 Para 3) that :
“test identification is considered a safe rule of
prudence to generally look for corroboration of
the sworn testimony of witnesses in court as to the
identity of the accused who are strangers to them.
There may, however, be exceptions to this general
rule, when, for example, the court is impressed by
a particular witness on whose testimony it can
safely rely without such or other corroboration”.
In that case, laying down the aforesaid law,
acquittal of one of the accused by the High Court
was converted into conviction by this Court on the
basis of identification by a witness for the first
time in court without the same being corroborated
by any other evidence. In the case of Ramanbhai

10. CRA No.102/2017
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
Kanha vs. State of M.P.

Naranbhai Patel it was observed:

“It, therefore, cannot be held, as tried to be
submitted by learned counsel for the appellants,
that in the absence of a test identification parade,
the evidence of an eyewitness identifying the
accused would become inadmissible or totally
useless; whether the evidence deserves any
credence or not would always depend on the facts
and circumstances of each case.”

The Court further observed:

“the fact remains that these eyewitnesses were
seriously injured and they could have easily seen
the faces of the persons assaulting them and their
appearance and identity would well remain
imprinted in their minds especially when they
were assaulted in broad daylight”.

In these circumstances, conviction of the accused
was upheld on the basis of solitary evidence of
identification by a witness for the first time in
court.”

Another important fact which the High Court has
failed to appreciate is that the prosecution witness
identified the accused-appellants in court for the
first time, during trial, in the year 1997-98 and the
incident occurred in the year 1995. Thus, after
considering some undisputed facts like occurrence
of incident at night, at a place with improper
lighting and all the accused-appellants were not
known to the forest officers, except one present at
the place of incident, there should have been TIP
conducted at the instance of the investigating
officer. Therefore, the identification of the
accused-appellants by the prosecution witness for
the first time after a gap of more than 2 years from
the date of incident is not beyond reasonable
doubt, the same should be seen with suspicion.

16. Nothing is on record to establish credibility of the
TIP conducted in this Case. Therefore, both the grounds
of conviction observed by the learned trial Court are not

11. CRA No.102/2017
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
Kanha vs. State of M.P.

reliable. It can not be said that prosecution could establish
the identification of appellant or recovery of stolen
property from his possession beyond all reasonable
doubts. The prosecution failed to produce any cogent and
convincing evidence to establish beyond reasonable doubt
that the appellant has committed the alleged crime.
Therefore, the learned appellate Court has committed
error in appreciating the evidence and also in holding the
appellant guilty for the alleged crime.

17. In my considered opinion, there are reasons for
doubting both the proceedings conducted by the
prosecution during trial. The appellant is entitled for
benefit of such doubt and extending the benefit of doubt,
the appeal of Kanha is allowed. He is acquitted from the
charges under Sections 394 and 342 of IPC. Fine amount,
if deposited, be refunded to him. He be set at liberty
forthwith, if not required in any other case.

18. Order of the learned trial Court regarding disposal of
property is hereby confirmed.

19. Consequently, I.A. No.1782/2018 an application for
suspension of sentence stands closed.

[ Virender Singh ]
Judge

amit
Digitally signed by Amit
Kumar
Date: 2018.08.07
17:30:37 +05’30’

12. CRA No.102/2017
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
Kanha vs. State of M.P.

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2021 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation