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BOMBAY HIGH COURT
JAHAGIRDAR AND KANTHARIA, JJ.
Ganesh Bhagwati Pandian, Appellant
Versus
State of Maharashtra, Respondent
Criminal Appeal No.266 of 1983
Decided on : 13-7-1984.
CRIMINAL APPEAL - IDENTIFICATION PARADE - IDENTIFICATION OF ACCUSED - IDENTIFICATION PARADE CONDUCTED IN VIOLATION OF GUIDELINES - IDENTIFICATION EVIDENCE UNRELIABLE - CONVICTION SET ASIDE.
Fact of the Case:
The appellant was convicted of robbery by the Additional Sessions Judge of Bombay. The prosecution case was that the appellant had robbed a trader of Rs. 22,000/- at knifepoint. The only evidence against the appellant was the identification evidence of two witnesses who had identified him in an identification parade.
Finding of the Court:
The court found that the identification parade was conducted in violation of the guidelines issued by the Bombay High Court. The court held that the identification evidence was unreliable and set aside the conviction.
Issues: 1. Whether the identification parade was conducted in accordance with the guidelines issued by the Bombay High Court? 2. Whether the identification evidence was reliable?
Ratio Decidendi: 1. The court held that the identification parade was not conducted in accordance with the guidelines issued by the Bombay High Court. The court noted that the appellant was the only person in the parade with a clean-shaven head and a tuft of hair, which made him stand out from the other participants. The court also noted that the officer who conducted the parade had failed to record in the memorandum that one of the suspects had his head shaved. 2. The court held that the identification evidence was unreliable. The court noted that the witnesses had been given an opportunity to identify the appellant before the parade, which could have influenced their identification. The court also noted that the witnesses had been given a long time to identify the appellant in the parade, which could have increased the chances of a mistaken identification.
Final Decision: The court allowed the appeal and set aside the conviction.
JAHAGIRDAR, J. :- One Keshavji Ranshi Chheda, a trader in edible oils and having his business on Swami Vivekanand Road in the Irla area of Vile Parle, was going to the Sangli Bank on 28th May 1980 at about 10 a.m. to deposit an amount of Rs. 37,200/- in the said Bank. He was carrying the said amount in a rexin bag and naturally he had also with him a pay-in-slip on which apparently the details of the amount which he was going to deposit had been mentioned. When he reached the gate of the Bank, the present appellant before us, who was accused No.2 in the Court below, suddenly appeared on the scene with a sword in his hand and assaulted the said Keshavji Ranshi. This naturally resulted in the dropping of the bag by Keshavji Ranshi. Accused No.2 ran away with the bag containing the amount Members of the public are alleged to have chased accused No.2 and ultimately the bag was returned to Keshavji Ranshi. When he opened the same, he found that the bag contained about Rs. 15,000/- less than what he had when he had proceeded to the Bank earlier. It is in evidence, and there is no reason to suspect the same, that Keshavji Ranshi was in fact hospitalised in a nursing home nearby and some surgical treatment had also to be given to him. It had been mentioned that he was in the nursing home for nearly 7 days. In the meantime, one Shaikh Mohommed Hanif, who was nearby, chased accused No.2 and was able to apprehend him. Claiming to have some sense of public duty, the said Shaikh Mohommed took accused No.2 in a taxi to the police station. However, two other members of the public got into the taxi telling Shaikh Mohommed that they would assist him in taking the apprehended robber to the police station. However, before they reached the police station, Shaikh Mohommed was persuaded to get out of the taxi so that the other two persons alone could take the robber to the police station. It has been claimed by the prosecution that another person, one Nandkumar Yadav Pardeshi, was also able to identify accused No.2 when he was running away from the scene of offence.
2. During the course of the investigation, a sword brought before the Court as article 4 was recovered allegedly pursuant to a statement made by accused No.2 under S.27 of the Indian Evidence Act. This was done at about 12-30 p.m. on 28th May 1980. Accused No.2 himself was arrested on the night of 27th May 1980. The date of the arrest of accused No.2 ought to be borne carefully in the mind because this affects the acceptability of the testimony of one key witness in this case.
3. Before we proceed to consider the case of the appellant-accused No.2 before us, for the purpose of the record it may be stated that originally 3 accused were put up for trial in Sessions Case No.26 of 1981. After that trial proceeded for some time, on 11th October 1982 accused No.2, who had been released earlier on bail remained absent. Thereafter it has been mentioned to us that apprehending that he might be punished for remaining absent accused No.2 actually absconded. As a result his case was separated from the case of the other two accused. Accused No.2 was subsequently arrested on 29th November 1982 and thereafter his trial proceeded as Sessions Case No.166 of 1981.
4. The facts which we have mentioned about the prosecution case above are only few and in reality they are the only facts to be considered in this case. Admittedly accused No.2 was unknown to every prosecution witness examined in this case. This necessarily means that the involvement of accused No.2 in the robbery that took place on 26th May 1980 can be held to be proved only on the basis of the correct acceptable identification madeby the prosecution witnesses.
Keshavji Ranshi has been examined as P.W. 1. After describing the incident that took place in which he lost a sum of Rs. 22,000/-, Keshavji Ranshi in his examination-in-chief itself has mentioned as follows : -
"On 28-5-80, the police brought one boy with a sword in his hand to the
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