The appellate court upheld the acquittal due to serious flaws in the Test Identification Parade, emphasizing the presumption of innocence and the need for clear evidence of guilt.

Headnote:(A) Indian Penal Code - Section 395 r/w Section 114 - Appeal against acquittal - The trial court acquitted the accused due to serious flaws in the Test Identification Parade, which lacked the element of surprise and was improperly conducted - The appellate court upheld the acquittal, emphasizing the presumption of innocence and the necessity for clear evidence of guilt. (Paras 3.4, 4, 5, 8)

(B) Acquittal - The appellate court must be slow to disturb a trial court's acquittal unless it is perverse or unsustainable in law - The presumption of innocence is reinforced by an acquittal, and if two reasonable conclusions are possible, the appellate court should not interfere. (Paras 4, 6, 8)

Facts of the case:
The appeal was filed by the State against the acquittal of the accused charged with robbery on a train, where the prosecution's identification process was flawed.

Findings of Court:
The appellate court found no error in the trial court's judgment, confirming the acquittal.

Issues: The main issues were the validity of the Test Identification Parade and the standard for overturning an acquittal.

Ratio Decidendi: The court ruled that the Test Identification Parade was fundamentally flawed, and the presumption of innocence must prevail unless clear evidence of guilt is established.

Result: Appeal dismissed.

JUDGMENT :

BIREN VAISHNAV, J.

1. This appeal has been filed by the State challenging the judgment and order of the learned Additional Sessions Judge, Court No. 8, Ahmedabad City, which was passed on 07.01.2012. By the aforesaid judgment, the learned Judge acquitted the accused who were charged for the offences punishable under Sec.395 r/w. Sec.114 of the Indian Penal Code.

2. The case of the prosecution in short was that on 23.08.2009, at about 20:55 hours, the respondents-accused in connivance with the absconding accused, boarded in the general compartment of the Sabarmati Express Train, closed the gates of the compartment from both the sides, administer threats by pointing out sharp edged knife to the passengers and thereby committed a loot of Rs.53,300/-

2.1 A complaint in this regard was given by one Devendrasinh Tundeprasad Rajput, at Vadodara Railway Station to the railway Head-Constable, which was registered as I-CR No. 75/2009.

2.2 During the investigation, Police-Sub-Inspector, Shri Rabari, arrested the accused A.Hamid Sheikh and Mahmmad Harun Ansari on 19.09.2009. On remand, these accused named two others, namely, Javed Babushah and Saddam Hussain Sheikh. Thereafter, one other accused Sameer Bengali was arrested by the Head- Constable from the Ahmedabad railway station itself. Identification Parade was carried out before the Executive Magistrate, necessary panchnamas were drawn, charge sheet was prepared and submitted to the Metropolitan Magistrate, Ahmedabad. Since the case was sessions triable, it was registered as Sessions Case No. 129 of 2010. To prove its case, the prosecution examined 13 witnesses and produced 11 documents.

3. Essentially, for our discussion, in light of the judgment of acquittal by the Trial Court is the deposition of the complainant Devendrasinh Tundeprasad at Exh.53 and that of the Executive Magistrate Zala Indraveersinh Vajubha at Exh.45, who carried out the Test Identification Parade. Essentially, perusal of the judgment of the Trial Court would indicate that having found serious flaws in the Test Identification Parade, the learned Sessions Judge acquitted the accused. We, therefore, have independently gone through the evidence of the Executive Magistrate at Exh.45 and that of the complainant at Exh.53 respectively. Executive Magistrate Zala Indraveersinh Vajubha in his Examination-in-Chief states that he received a yadi on 29.09.2009 to carry out an Identification Parade at 5:00 p.m. The letter so received was produced at mark 36/7. He further testifies that the accused were produced for Test Identification Parade at 5:00 p.m at which point they had their faces covered. When they were taken to the Court room, neither the complainant nor the other witnesses were present. That he instructed his Peon that for preparing panchnama, five dummy persons who had the same physique as the accused, be called for. The pancha recorded the name of these dummy persons before coming to the Court room.

3.1 In the Cross-Examination, it has come on record from the testimony of this witness that the schedule for Test Identification Parade was kept ready. The Test Identification Parade was to be carried out at the first floor of the Court house. That he had instructed his Peon that he may call two individuals as panch witnesses which he sent at 5:10 p.m. Panchas arrived at around 5:20 p.m. That he had filled in the panchnama before these panchas had come and left the other details for the panchas to fill in.

3.2 Devendrasinh Tundeprasad Chauhan, the complainant is examined at Exh.53 as Prosecution Witness 7. In his Examination-in-Chief, he would submit that there were five unknown persons who had accosted them and carried out the theft of cash after showing them a sharp object. One of the accused identified to be between the age of 16 to 17 years. He further testifies that on 29.12.2009, he was called by the Police for being taken to the Court. The Police Officer concerned was named Mr.Patil. Shri Patil, informed him