Delay in TI parade and lack of recovery can undermine the prosecution's case and lead to the quashing of a conviction.

JUDGMENT :

Heard learned counsel for the parties.

2. The instant criminal revision application is directed against the judgment dated 19.11.2005, passed by learned 2nd Additional Sessions Judge, Jamshedpur, whereby the Cr. Appeal No.120 of 2000, preferred by the petitioner has been dismissed and the judgment of conviction and order of sentence both dated 31.07.2000, in G.R. No. 842 of 1999, corresponding to T.R. No. 190 of 2000, passed by the learned Judicial Magistrate 1st Class, Jamshedpur, whereby the petitioner was convicted and sentenced to undergo rigorous imprisonment for three years under Section 392 of the Indian Penal Code, has been affirmed.

3. The prosecution case in brief is based upon the fardbeyan of the informant alleging therein that on 12.05.1999 at about 2.15 P.M., the informant, after withdrawing money from the counter at National Savings Bureau situated in TISCO company building, was standing near the scooter along with her husband when two accused persons accosted them and on pistol point looted away Rs.8,365/-. It is also alleged that two other accused persons were also standing thereon another scooter. The informant had claimed to identify the accused persons. After investigation, police has submitted chargesheet against the petitioner under Section 392/120-B IPC and cognizance has been taken against the petitioner; for which the petitioner pleaded not guilty and claimed to be tried. After trial, the petitioner was found guilty for the offence and he was convicted and his appeal was also rejected by the learned appellate court.

4. Mr. Arun Kumar Pandey, learned counsel appearing for the petitioner assailed the impugned judgment of conviction on two grounds.

(i) There is a delay in TI parade and as per the settled law there should not be any delay in TI parade as it doubt its genuinety.

(ii) No recovery has been made from the petitioner and the law is well settled that merely conviction on the basis of TI parade even assuming to be correct is not sustainable without any corroborative evidence.

5. Mr. Pandey further submits that this is a peculiar case wherein the petitioner has been taken into custody on 15.07.1999 and the TI parade was conducted on 21.08.1999 and thus the prosecution took 37 Days for TI parade. He further submits that the trial court has committed a gross error in convicting this petitioner only on the basis of identification in TI parade and failed to consider that the said TI parade was done after a delay of 37 days and there was no explanation given by the prosecution witness in respect to his contention.

6. Learned counsel relied upon the judgment passed in the case of Hari Nath and another v. State of U.P. reported in (1988) 1 SCC 14 wherein at para 23 the Hon’ble Apex court has held as under :

“23. We are afraid in the present case, there is a serious lapse on the part of the prosecution in putting up the suspected culprits for a test identification after a lapse of four months after their arrest. There is no explanation at all for the delay. There might conceivably be occasions when there could be justification, or acceptable explanation, for the delay. There are cases where the delay was at the instance of the accused persons themselves as they expressed a choice as to the venue for the test parade. There may be other causes, which in the very nature of things cannot be exhaustively enumerated. Cases can only be illustrative.”

7. Learned counsel further submits that there is no recovery in the instant case and the Hon’ble Apex Court in the case of Iqbal and another v. State of Uttar Pradesh reported in (2015) 6 SCC 623 at para 15 has laid down as under :

“15. The evidence of identification of the miscreants in the test identification parade is not a substantive evidence. Conviction cannot be based solely on the identity of the dacoits by the witnesses in the test identification parade. The prosecution has to adduce substantive evidence by establishing incriminating evidence connecting the