Dheeraj And Sandeep vs State Of Madhya Pradesh

The appellants have preferred this appeal against judgment and order dated 12.01.2018 passed by Vth Additional Session Judge, Indore in Sessions

Trial No.430/2015, whereby the learned trial Court has held the appellants guilty for the offence under section 394 of the IPC and awarded 4 years RI

and fine of Rs.500/- each and in default; further to undergo RI for two months.

Background facts sans unnecessary details are that on 01.03.2015 the complainant Aijazuddin Qureshi was going to buy some grocery articles from

the shop situated at Kabutar Khana. On his way, as he reached near bridge of Chandrabhaga river near CP Nagar corner, one out of four miscreants

standing near parked auto-rickshaw suddenly snatched his wallet containing a currency note of Rs.1,000/-, his passport size photo, voter ID and few

other papers, from pocket of his shirt. On his resistance, they all assaulted on him and beat him. As he made clamour, passerbys gathered, they fled

from the spot by the same auto-rickshaw. He went home, revealed the incident to his neighbours, who suggested him to lodge a report first. Then he

went to the police station Pandri Nath, Indore with Munnabhai and lodged FIR Ex.P/03. The police registered crime no.37/2015.

The police investigated the case, prepared spot map Ex.P/4, apprehended the appellants, interrogated them, recovered autorickshaw (Ex.P/10) on

pointing out of appellant Sandeep and wallet Ex.P/12 containing photograph of the complainant, his voter ID, a currency note of Rs.1,000/- along with

some papers from appellant Dheeraj. The police put them as well as the wallet before the complainant for identification, who identified them correctly

(Ex.P/5 & P/14). The police also recorded statements of the witnesses and after completing the investigation filed charge-sheet.

The Police also arrested co-accused Sunny and Krishna, who were found juvenile, therefore, charge-sheet was filed against them before the

Juvenile Court.

The appellants were charged under Section 394 IPC. They pleaded 'not guilty' and claimed for trial. They were tried and convicted as stated in para

1 above.

The appellants have preferred this appeal on the grounds that the judgment of the learned trial Court is contrary to the law and the facts available

on record. Independent witnesses have not supported the case of the prosecution. Independent witnesses of seizure of wallet have not been

examined. The appellants so also the wallet was shown to the complainant prior to their alleged identification. Such identification cannot be relied

upon. There are material contradictions in the statements of the witnesses. The learned trial Court has committed error in appreciating the evidence of

the prosecution and in relying upon the statements of interested witnesses and in discarding the defense version; therefore, the appellants are entitled

for acquittal.

The learned Public Prosecutor has opposed the prayer.

I have considered contentions of the rival parties and have gone through the record of the Trial Court.

In the case of robbery or dacoity, the conviction mainly depends on the recovery and identification of stolen property and identification of accused.

In the present case, we will first take the identification of the accused.

The prosecution has come forward with the case that after arrest; the appellants were put before the complainant for identification. Tehsildar, an

executive magistrate, had conducted the identification parade in the jail and there the complainant correctly identified the appellants. But in the very

first para of his cross-examination, the complainant has candidly admitted that immediately after the arrest, he had seen the appellants at the Police

Station. The police were asking their names, therefore, he also came to know their names. This admission completely demolishes probative value of

the identification parade conducted by the Tehsildar and also the conviction recorded by the learned trial Court on the basis of such identification.

What would be the impact of subsequent identification in the identification parade or in the Court when the suspects were already shown to the

complainant before conducting the identification parade in the jail or identification in the Court, this question has been considered by the Hon’ble

Supreme Court time and again. In the judgement delivered in Kanan Vs State of Kerala 1979 SCC (Cri) 621 Hon'ble the Supreme Court held 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

courtâ€​

Referring several judgments of the Hon'ble Supreme Court, in Mangaliya alias Mangal Singh Vs State of M.P 2005(1) MPHT 469 the co-ordinate

bench of this Court has held:

“10. In the light of the aforesaid evidence, the sole question in this case is what is the value of the aforesaid evidence and whether the test

identification parade is legal and admissible and the conviction can be based thereon.

In the case of Mohanlal Gangaram Gehani v. State of Maharashtra (AIR 1982 SC 839), the Hon'ble Supreme Court has held that ""as Shetty did

not know the appellant, no test identification parade was held to test his power of identification and he was also shown by the police before he

identified the appellant in the Court, his evidence becomes absolutely valueless on the question of identification. On this ground alone, the appellant is

entitled to be acquitted.

In the case of State of Maharashtra v. Sukhdeo Singh (AIR 1992 SC 2100), it has been held that the test identification parade, if held promptly and

after taking the necessary precautions to ensure its credibility, would lend the required assurance which the Court ordinarily seeks to act on it. In the

absence of such test identification parade it would be extremely risky to place implicit reliance on identification made for the first time in Court after a

long lapse of time and that too of persons who had changed their appearance.

In the case of Kanan v. State of Kerala, 1979 SCC (Cri.) 621 : (AIR 1979 SC 1127), the Hon'ble Supreme Court speaking through Murtaza Fazal

AH, J., observed :-

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.

In the case of Ahmed Bin Salam v. State of Andhra Pradesh (AIR 1999 SC 1617), the Hon'ble Supreme Court has held that ""the so-called

identification is also of a peculiar nature and the witness in his evidence stated that the police asked him whether he could identify the persons who

were on the scooter to which he replied in affirmative and then the two accused persons were shown for the purpose of identification and he identified

them. We fail to understand as to how the so-called identification done in the aforesaid manner will assist the prosecution in any way and this cannot

be held to be a test identification parade"", and the Hon'ble Supreme Court has not relied on such identification and has not

sustained the conviction of the appellant and the conviction was set aside.

In view of the aforesaid decisions, it is clear that the identification would lose its value when the unknown person said to be the culprit had been

seen by the identifying witnesses prior to the identification in the police custody and in view of the admission of P.W. 5 to P.W. 7 that the accused

was shown to them in the police custody at the police station before identification, this is sufficient to discard the whole prosecution case about the

identification of the accused. The identification of the accused in the police custody has no value and cannot be relied upon.

In Prahlad Singh Vs State of M.P 1997(8) SCC 515 also the Hon'ble Supreme Court held that when the accused was shown to the witness

outside the court and that it is admitted that she was tutored by the police, the substantive evidence of the witness in court identifying the accused is

unacceptable.

Hon'ble the Apex Court in Dana Yadav Alias Dahu Vs State of Bihar 2002(7) SCC 295 (AIR 2002 SC 3225) has elaborated upon the importance

of test identification parade in great details. The Hon'ble Court has observed that in case of failure to hold Test Identification Parade, identification of

the accused before court, though is not inadmissible but it should not, ordinarily, form the basis of conviction unless corroborated by previous

identification in TI parade or any other evidence. Para 6 of the judgment reads thus:

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 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).

True, the complainant identified the appellants before the Court during his examination-in-chief and it is settled law that identification before the

Court is substantial evidence and identification during investigation is only a corroborative piece of evidence, but the Hon'ble Supreme Court has also

considered this issue as to what would be the effect of dock identification, when there is no identification during investigation or when there is

identification during investigation but before conducting such identification, the suspects were shown to the complainant at the police station?

Although it is not necessary to consider the effect of dock identification when there is no identification during investigation as in the present case,

on the request of the police, the executive magistrate had conducted the identification parade, but as the learned trial Court has relied on the dock

identification; therefore, I deem it proper to consider this aspect also or also to consider evidentiary value of such identification.

Considering  many  earlier  judgements  in Mahabir v. State of Delhi AIR 2008 SC 2343, the Hon’ble Supreme Court

summed-up the legal position in the following words:

It is trite to say that the substantive evidence is the evidence of identification in Court. Apart from the clear provisions of Section 9 of the Evidence

Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are

relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in Court. The evidence

of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of prior

test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly 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, in the form

of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the Court is impressed by a particular

witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and

there is no provision in the Code which obliges the investigating agency to hold or confers a right upon the accused to claim, a test identification

parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code. Failure to hold a test

identification parade would not make inadmissible the evidence of identification in Court. The weight to be attached to such identification should be a

matter for the Courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration. (See Kanta

Prashad v. Delhi Administration (AIR 1958 SC 350); Vaikuntam Chandrappa and others v. State of Andhra Pradesh (AIR 1960 SC 1340); Budhsen

and another v. State of U.P. (AIR 1970 SC 1321) and Rameshwar Singh v. State of Jammu and Kashmir (AIR 1972 SC 102).

The learned trial Court has relied on the dock identification but missed to assign any reason for doing so, while it was expected to do so. Perusal of

record of the trial also could not satisfy my anxiety to find out any reason to base the conviction on such identification. In absence of any such cogent

reason, I think that the conviction is recorded on wrong perception of law.

No incriminating article/stolen property was recovered from possession of the appellant Sandeep except one Bajaj auto-rickshaw which allegedly

was used in commission of the crime. Nothing is mentioned in FIR Ex.P/3, except that at the time of the incident one auto-rickshaw was standing

there and that after commission of the crime all the accused persons fled away from the spot by the same auto-rickshaw, that this particular or seized

auto-rickshaw was used in commission of the alleged crime. Neither any registration number nor any other particulars have been mentioned in the

FIR. No identification of auto-rickshaw was conducted during the investigation. Photographs of the seized auto-rickshaw are affixed on

acknowledgment of receipt of release of auto-rickshaw, which though shows that this is one out of thousands of common auto-rickshaws

manufactured by ‘Bajaj Auto’. On the contrary one thing is noticeable that on the front face of the seized auto-rickshaw, its registration number

is very prominently visible, but surprisingly, the complainant, who mentioned minute particulars of the offenders in the FIR did not mention this

registration number, which creates doubts. The police have tried to connect this auto-rickshaw with the crime on the basis of statement of owner of

the auto-rickshaw Shailendra PW/01, who has stated that due to illness (calculus) he had rented out this auto-rickshaw to the appellant Sandeep for

plying the same at the rate of Rs.150 per day, but neither any such agreement nor any document regarding illness of the registered owner are

produced by the prosecution before the trial Court, therefore his statement does not inspire confidence. There is no other evidence to assume that this

was the same auto-rickshaw which was used in commission of the crime and without any corroborative evidence it does not appear safe to hold the

appellant Sandeep guilty for the alleged offence only on the basis of recovery of such type of common auto-rickshaw.

At the time of the incident, a wallet was snatched from the complainant. The prosecution has alleged that this wallet was recovered from the

appellant Dheeraj. To prove this fact, the prosecution had conducted identification during the trial. As per the prosecution case, councillor Abhay

Verma PW/5 got that wallet identified from the complainant Aijazuddin Qureshi, but Abhay Verma PW/5 has stated in his Court statement that he

never conducted such identification (of wallet). He has stated that some police personnel contacted him and got his signatures on some papers stating

that those are related to some incident of theft. The witness has been declared hostile by the prosecution but nothing could be abstracted from his

cross-examination done by the learned Public Prosecutor. Complainant Aijazuddin Qureshi himself has admitted that he never went to any councillor

to identify his wallet. In his examination-in-chief itself; he has admitted that after recovery (of wallet); the police called him at the police station and

showed him the wallet. On this point, he was also declared hostile; but the cross examination done by the learned Public Prosecutor could not yield the

results as the witness remained intact in the cross-examination. Thus, it cannot be assumed that the ‘stolen property’ was recovered from the

possession of the appellant Dheeraj.

Discharging its duty as unwanted and unavoidable burden, as they perceive, the police got the wallet (seized from Dheeraj) identified by the

complainant and have produced and proved identification memo Ex.P/14 (of this wallet). According to this memo, in presence of Naresh and Subhash,

councillor Abhay Verma got this wallet identified from the complainant Aijazuddin Qureshi; but surprisingly, this memo does not bear signatures of any

of the witnesses (Naresh, Subhash) or even of the complainant Aijazuddin Qureshi. Furthermore, Subhash or Naresh were never produced or

examined before the trial Court and as we have already observed, the complainant Aijazuddin Qureshi or Councillor Abhay Verma have completely

denied the alleged identification (of wallet). Ignoring all such facts, how can a Court record a conviction. In my considered view, the learned Trial

Court has committed grave error in convicting the appellants with support of such type of identification memo.

Further, it is also to be noticed that this wallet along with photograph and voter ID of the complainant and other papers found in the wallet was

never produced or marked before the Court during prosecution evidence. Not only the appellants were deprived of their valuable right to cross-

examine the prosecution witnesses in this regard but also the Court itself was deprived from the opportunity to compare them to assure itself and to

reach on a fool proof conclusion beyond all reasonable doubts that this was the same wallet or were the same articles which were snatched from the

complainant. Certainly, this adversely affects the very foundation of the prosecution case and vitiates their conviction.

Besides, recovery of the wallet is also doubtful. Independent witness of this recovery, Ajay Verma has turned hostile and second panch witness

Praveen Tiwari is not examined before the Trial Court for no reasons on record. The learned Trial Court issued process for securing his presence but

later closed the prosecution evidence abruptly on the request of the learned public prosecutor without noticing the fact that statement of Praveen

Tiwari was important in the background that other panch witness Ajay Verma had already turned hostile. This fact also adversely affects the case of

the prosecution as due to this lapse, proof of the facts of interrogation and recovery and their corresponding documents remained dependent only on

the statement of Investigating Officer, sub-inspector Sunil Dubey, whose statements are already doubtful looking to the statements of the complainant

and the Councillor regarding identification of person as well as of articles.

Sunil Dubey PW/7, has stated that he took the appellant Dheeraj in his custody and interrogated him. He revealed about the wallet which was later

recovered on pointing out of the appellant Dheeraj from steel almirah kept in his house. While in memo statement, Dheeraj has stated that the same

was kept in the trunk. In absence of support from independent witnesses, this contradiction raises some doubts.

In the FIR, the complainant had narated that when he was passing through Chandrabaga bridge, four scoundrels were standing near an auto-

rickshaw. Suddenly; one of them snatched wallet from pocket of his shirt, while in his court statement he has stated that at the time of the incident an

auto-rickshaw came from his back. The driver of auto-rickshaw pounced on his mobile and snatched it, thereafter, three persons alighted from the

auto-rickshaw beat him and snatched his wallet. This change of sequence of incident is important in the background of the fact that after the incident

admittedly the complainant had gone to his house, revealed the incident there to his neighbours and on their advice went to the police station and

lodged the report. This raises a doubt regarding genuineness of the incident as revealed by the complainant before the police.

Thus, no doubts remained in my mind that in the present case recovery of auto rickshaw is of no use as no evidence to connect it with the alleged

crime is produced by the prosecution, independent witnesses have not supported the case of the prosecution, Ajay Verma has not supported recovery

of the wallet from the appellant Dheeraj, other witness of this seizure, Praveen Tiwari is not examined by the prosecution, place of recovery of wallet

is different in the statement of the Investigating Officer and in the seizure memo, identification of article as well as of the appellants are not reliable,

the complainant has admitted that he had seen the appellants so also the wallet at the police station itself, independent witnesses of identification of the

stolen property are not examined before the Court, Councillor Abhay Verma has also not supported this identification, stolen property was not

produced or marked before the Court during the trial, genuineness of incident as mentioned in the FIR is itself not beyond doubts, therefore, the

conviction recorded by the learned Trial Court is against the settled principles of law and is not maintainable and the same is hereby set-aside.

The appellants be set at liberty forthwith, if not required in any other case. Fine amount, if deposited, be refunded to them.

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