Bombay High Court Overturns Dacoity Conviction Citing Lapses In Arrangement Of Test Identification Parade By The Police

The Bombay High Court overturned conviction of four accused in a dacoity case observing that the prosecution's evidence was unreliable due to irregularities in arranging the test identification parade.

Justice Sarang V. Kotwal acquitted the appellants in a criminal appeal against their conviction.

"In this particular case in view of these infirmities, benefit of doubt must go to the accused. There are no other incriminating circumstances against the appellants", the court held.

The appellants had been convicted under Section 395 of the IPC (Punishment for Dacoity) and were sentenced to rigorous imprisonment for ten years and fine of Rs.50,000/- each.

The prosecution's case was that the two victims were carrying amount of Rs. 4 Lakhs and traveling on the highway around midnight. They were intercepted by the appellants who assaulted them with sticks and took the bag of money. The victims then went to one Vilas Bait and informed the incident after which all three went to the police station to register an FIR. During investigation, the appellants were identified in the test identification parade.

The trial court examined 12 witnesses including two victims, the pancha for recovery, the Tahsildar who had conducted the test identification parade and the investigating officers. The court convicted the appellants on the basis of identification parade and the recovery. The appellants approached the High Court in appeal.

Advocate Aashish Satpute for the appellants submitted that identification of the appellants is not proved by the prosecution. There was no light at the spot of incident, hence the victims could not have seen the features of the accused. The test identification parade was not held as per the requirement of the Criminal Manual. Further, no medical evidence was produced to show that the victims suffered any injury.

APP M.R. Tidke for the state submitted that the victims had ample opportunity to see the appellants and, therefore, their identification can be safely relied on. There is sufficient material in this case for conviction.

The court rejected the appellants' argument that the incident has not taken place as there is no reason to show why the victims would concoct a false story. Though there is no medical evidence, that does not mean that the incident has not taken place.

The court stated that the crucial question was about the identity of the accused. The court noted that the description of the accused was not mentioned in the FIR. The victims also didn't clearly answer as to the description of the accused. "The prosecution has failed to prove that the witnesses had sufficient opportunity to observe the features of the accused in sufficient light", the court held.

The court also noted the strong possibility that the prosecution witnesses had an opportunity to see the accused before the test identification parade. The prosecution has to rule out that possibility, which was not done. Further the prosecution didn't prove that the witnesses didn't see the dummies brought by the police for the identification. "If the witnesses had an opportunity to see the dummies before the test identification parade; then it was very easy to identity the accused."

The court observed that sixteen dummies were asked to take part in one single identification parade for four accused. Proper procedure stipulates six dummies per accused and no more than two accused in a single identification parade. The court stated, "identification of the accused is extremely doubtful and, therefore, benefit in that behalf must go to the accused".

The court further observed that the investigating officer's evidence in respect of recoveries of cash amount is vague. No supporting evidence shows that the accused had exclusive access to the places from where the police recovered the cash. Recovery of ornaments from the wives of the accused also falls short of the required degree of proof as the wives weren't examined.

The court concluded that the evidence from the investigating officer was not satisfactory. "He has tried to cover up lapses in arranging the test identification parade by the police and, therefore, it is not safe to rely upon his evidence in respect of recovery of cash amount", the court held.

The court set aside the convictions and directed the release of the appellants.

Case no. – Criminal Appeal No. 1100 of 2018

Case title – Sunil Vishnu Mukane & Ors. v. State of Maharashtra

Coram – Justice Sarang V. Kotwal

Click Here To Read/Download Judgment