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Shriram vs The State Of Madhya Pradesh on 20 June, 2019

CRA No.3277/2019 1
HIGH COURT OF MADHYA PRADESH, JABALPUR
BENCH INDORE
( Single Bench )
( Hon’ble Shri Justice Virender Singh )

Criminal Appeal No.3277 of 2019
Shriram
VERSUS
State of Madhya Pradesh
*****
Shri Ashish Sharma, learned counsel for the appellant.
Shri R.K. Pathak, learned Public Prosecutor for the
Respondent/State.
With consent of both the parties, heard finally.
*****

JUDGEMENT

( Passed on this 20th day of June, 2019 )

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 Section342 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
complainant Sanidhya Goswami, Parth Goswami, Ishan
Goswami and Thomson Josef picnicking at Kajligarh, four
unknown scoundrels armed with darata, gofan and sticks
attacked them. They threatened them to hand over their
valuables. The person having gofan, struck it on right cheek of
Sanidhya. The person having darata snatched mobile and
CRA No.3277/2019 2
purse containing Rs.2000/- from him and also snatched I-
phone 6 worth of Rs.71,500/- and Rs.900/- cash from
Sanidhya, bag of LP company and Rs.250/- cash from Arpan,
one Nokia Mobile and Cash of Rs.2,000/- from Parth and
wallet containing Rs.100/- from Ishan and one steel Kada, one
HTC mobile, cash Rs.500/-, 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 freed thereafter
asking them to runaway else, they will kill them. After the
incident, Sanidhya lodged FIR No. 224/2015 under Sections
342, Section392 and Section394 of IPC at Police Station Simrol. During
investigation, the police apprehended the appellant alongwith
co-accused Sanjay and Kanha and interrogated them. On the
basis of information given by the appellant, the police
recovered one black coloured Nokia mobile worth Rs.2000/-,
one black coloured wallet having ‘CK’ mark and cash Rs.100/-
and one darata worth Rs.50/- from his possession. Some other
recoveries were also made from the co-accused persons. The
appellant was put for identification and both the witnesses
namely, Vijendra Puri (P.W.3) and Sanidhya Puri (P.W.2)
identified him. After other usual investigation, the police filed
charge-sheet against three accused persons namely Kanha,
Sanjay and Shriram. Shriram has preferred this appeal.

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

CRA No.3277/2019 3

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 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-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 importantly, 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,
CRA No.3277/2019 4
no need to discuss the same in detail.

8. As per the prosecution case, on the pointing of appellant,
one black coloured Nokia mobile worth Rs.2000/-, one black
coloured wallet with ‘CK’ mark and cash Rs.100/- and one
darata worth Rs.50/- from his possession vide memo Ex.P/6
and seizure Ex.P/7, but no evidence is produced by the
prosecution to establish that the articles recovered from
possession of the appellant was ‘stolen property’.

9. In para no.4 of his cross-examination, the complainant
Sanidhya (PW-2) has admitted that news regarding arrest of
the appellant was published in the news papers on the next day
of the incident and after reading that news, he went to the
police station and had seen all the scoundrels there. Ishan PW-
9 has also admitted in para no.7 of his cross-examination that
before identification in the jail, the police officers had shown
him the appellant and his companions and got them identified.
Similar is the admission of Parth PW-10 in para no.6 of his
cross-examination. Though Vijendra 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 Vijendra Goswami also.

10. It is true that before the Court, the complainants and
other witnesses have identified the appellant and this is the
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.

CRA No.3277/2019 5

11. In this regard, the 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 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
Sectionsection 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, prosecutrix was
called there and accused was shown to her before the test
CRA No.3277/2019 6
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 SectionDahu 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 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
CRA No.3277/2019 7
SC 1321), SectionKanan 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), SectionState of
Maharashtra v. Sukhdev Singh (AIR 1992 SC 2100),
SectionJaspal Singh v. State of Punjab (AIR 1997 SC 332),
SectionRaju v. State of Maharashtra (AIR 1998 SC 275),
Ronny (AIR 1998 SC 1251), SectionGeorge v. State of Kerala
(AIR 1998 SC 1376), Rajesh Govind Jagesha (AIR
2000 SC 160), SectionState of H.P. v. Lekh Raj (AIR 1999 SC
3916) and SectionRamanbhai 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 SectionState 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 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
CRA No.3277/2019 8
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 SectionState 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 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
CRA No.3277/2019 9
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 or the fact that the articles recovered
from possession of the appellant was ‘stolen property’.
Therefore, both the grounds of conviction observed by the
learned trial Court are not sustainable. The prosecution failed
to produce any cogent and convincing evidence to establish
beyond reasonable doubt that the appellant had committed the
alleged crime. The appellant is entitled for benefit of doubt
and extending the same, he is acquitted from the charges under
Sections 394 and Section342 of IPC. Fine amount, if deposited, be
refunded to him. He be set at liberty forthwith, if not required
in any other case.

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

18. With the aforesaid, the appeal of Shriram is allowed.

19. Consequently, I.A. No.2907/2019 an application for
suspension of sentence stands closed.

(Virender Singh)
Judge
soumya
Digitally signed by Soumya

Soumya Ranjan Dalai
DN: cIN, oHigh Court of
Madhya Pradesh Bench
Indore, postalCode452001,

Ranjan stMadhya Pradesh,
2.5.4.20f4d2118683e84322
bb5797cf28ee60671538b73

Dalai
7cf52962d84d7b527897e53
ac, cnSoumya Ranjan Dalai
Date: 2019.06.25 17:51:06
+05’30’

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