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Bombay High Court

SAJJU @ BIJU MATHEW PILLEversusTHE STATE OF MAHARASHTRA

Decided
Disposal
Disposed Off

Holding

The trial court erred in relying on the test identification parade, and the convictions under Sections 395, 397, 342 and 34 IPC are set aside.

Summary

The appellants were convicted for a bank dacoity under Sections 395 read with 397 and 342 read with 34 of the IPC, based primarily on a test identification parade. The prosecution alleged that the accused, armed with weapons, robbed a bank on 12 December 1995. The defense argued that the identification parade was conducted two months after arrest and that witnesses had seen photographs of the accused beforehand, undermining the reliability of the identification. The trial court had not inquired whether the accused were shown to witnesses prior to the parade and relied on the identification despite the delay. Citing Supreme Court precedents that pre‑exposure to photographs diminishes the evidentiary value of a test identification, the appellate court held that the conviction was unsafe. Consequently, the appeals were allowed, the convictions quashed, and the appellants acquitted.

Issues considered

  • Whether a conviction based on a test identification parade is valid when the accused were shown photographs to witnesses prior to the parade.
  • Whether the delay of two months between arrest and the test identification parade affects the reliability of the identification evidence.

Legislation cited

Subjects

  • dacoity
  • test identification parade
  • identification evidence
  • delay in identification
  • acquittal
  • IPC sections 395 397 342 34
  • criminal appeal

Judgment

                                                         3-j-apeal-111-99.odt


           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                CRIMINAL APPELLATE JURISDICTION
                 CRIMINAL APPEAL NO. 111 OF 1999

Sajju @ Biju Mathew Pille                           …Appellant
                                              (Org. Accused No.5)
     V/s.
The State of Maharashtra                           ...Respondent.
                                WITH
                   CRIMINAL APPEAL NO. 214 OF 1999

Pradeep Purashan Ijava                              …Appellant
                                              (Org. Accused No.1)
     V/s.
The State of Maharashtra                           ...Respondent.
                              …………..
Ms Sanika Joshi i/b Mr. Kuldeep Patil for the Appellants.
Mr. V.N. Sagare, APP for the Respondent/State.
                              …………..

                             CORAM        :   N.R. BORKAR, J.
                             DATE         :   17.06.2026.

ORAL JUDGMENT :

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                    1/5
                                                          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 12 th 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


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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    (1988) 1 SCC 14
2    2025 Supreme (SC) 1939

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that he did not ask the witnesses as to whether accused were
shown to them prior to the test identification parade.


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:
         “62.        It is trite that where the witnesses have had an
         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.


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                                                                 3-j-apeal-111-99.odt




                                    ORDER
         a]        Criminal Appeals are allowed.
         b]        The   impugned    judgment      and   order   dated        23rd
         December 1998 passed by the Additional Sessions Judge,
         Thane in Sessions Case No.36 of 1997 and Sessions Case
         No.97 of 1998 convicting the appellants for the offences
         punishable under Sections 395 read with 397 and 342 read
         with 34 of the IPC is quashed and set aside and they are
         acquitted of the said offences.
         c]        Their bail bonds shall stand cancelled.
         d]        The fine, if any, paid by the appellants be refunded to
         them.
                                                    [N.R.BORKAR, J.]




Dinesh S. Sherla                           5/5


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