Sajju @ Biju Mathew Pille v. (Org

1] Both these appeals are filed against one and the same judgment and order dated 23rd December 1998 passed by the Additional Sessions Judge, Thane in Sessions Case Nos. 36 of 1997 and Sessions Case No.97 of 1998. Both the appeals are therefore being disposed of by this common judgment. 2] The appellants in both these appeals were tried alongwith other co-accused for the offences punishable under Sections 395 read with 397 and 342 read with 34 of the Indian Penal Code, 1860 (for short “IPC”). Dinesh S. Sherla 3-j-apeal-111-99.odt 3] By the impugned judgment and order, the trial Court has convicted the appellants for the offence punishable under Section 395 read with 397 of the IPC and sentenced them to suffer R.I. for 10 years. The trial court has further convicted them for the offence punishable under Section 342 read with 34 of the IPC and sentenced them to suffer R.I. for 6 months. 4] It is the case of the prosecution that on 12th December 1995 at about 13:30 hours, the present appellants along with other co- accused armed with deadly weapons viz. chopper, revolver etc. barged into the District Central Cooperative Bank at Turbhe and stole the cash of Rs.5,64,216/-. It is alleged that at the time of committing said dacoity, the complainant and other bank staff members were threatened and wrongfully confined.

5] The trial Court has acquitted other co-accused except the present appellants. The trial Court to convict the present appellants has relied upon the evidence in respect of test identification parade. 6] I have heard the learned counsel for the appellants and the learned APP for the respondent/State. 7] Learned counsel for the appellants submits that the test identification parade was conducted after two months of the arrest of the appellants. It is submitted that PW-1 Jaywant Deshmukh, one of the witness to the test identification parade, has admitted Dinesh S. Sherla 3-j-apeal-111-99.odt in his cross-examination that the photographs of the accused were shown to him prior to conducting the test identification parade. It is submitted that the trial Court has thus erred in relying upon such evidence. It is submitted that there is no recovery of incriminating materials from the possession of present appellants.

8] Learned counsel for the appellants in support of her submission that if test identification parade is conducted belatedly then same cannot be relied upon has relied upon the decision of the Hon’ble Supreme Court in Hari Nath and Anr. vs. State of U.P.1. She has further relied upon the decision of the Hon’ble Supreme Court in Raj Kumar @ Bheema vs. State of NCT of Delhi2 in support of the submission that if the witnesses have had any opportunity to see the accused before the test identification parade whether physically or through photographs the credibility and sanctity of the identification proceedings stand seriously compromised. 9] On the other hand, learned APP for the respondent/State supported the impugned judgment and order. It is submitted that witnesses identified the appellants in test identification parade. It is submitted that the trial Court has therefore rightly convicted the present appellants.

10] I have perused the evidence on record. PW-6 Deepak Nalawade, the Special Executive Magistrate, who conducted the test identification parade, has admitted in the cross-examination 1 2 (1988) 1 SCC 14 2025 Supreme (SC) 1939 Dinesh S. Sherla that he did not ask the witnesses as to whether accused were shown to them prior to the test identification parade. 3-j-apeal-111-99.odt 11] PW-1 Jaywant Deshmukh, who has identified the appellants in test identification, has admitted in his cross-examination that during the period from 31st December 1995 to 5th January 1996, the police had visited their bank with photographs of the accused. Admittedly, the test identification parade was thereafter conducted on 28th February 1996. 12] The Hon’ble Supreme Court in Raj Kumar @ Bheema (supra) had held thus: It is trite that where the witnesses have had an “62. opportunity to see the accused prior to the holding of the TIP, the evidentiary worth of such proceedings stands considerably diminished.

It is the duty of the prosecution to establish beyond doubt that right from the time of arrest, the accused was kept baparda to rule out the possibility of his face being seen before the identification proceedings are conducted. If the witnesses have had any opportunity to see the accused before the TIP - whether physically or through photographs - the credibility and sanctity of the identification proceedings would stand seriously compromised.” 13] The trial court has thus erred in relying upon the evidence in respect of test identification parade to connect the appellants with the alleged crime. There is no other incriminating evidence against the appellants. In that view of the matter, the trial Court erred in convicting the appellants. In the result, the following order is passed. Dinesh S. Sherla 3-j-apeal-111-99.odt