Kanha vs State Of Madhya Pradesh

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.

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

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.

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-aside and he be acquitted.

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.

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

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

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.

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

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.

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 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"".

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

courtâ€​

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

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.

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.

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:

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).

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.

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 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

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.

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 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.

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.

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

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