Bombay High Court
ANAS AFSAR SAYYADversusSTATE OF MAHARASHTRA
- Decided
- Disposal
- Disposed Off
Holding
The court held that the identification of the accused was unreliable due to material contradictions and procedural irregularities in the Test Identification Parade, warranting suspension of the sentence and grant of bail.
Summary
The applicant, convicted of murder under Section 302 IPC and sentenced to life imprisonment, filed an interim application seeking suspension of his sentence and bail. The prosecution’s case relied heavily on the identification of the applicant by two witnesses, including a Test Identification Parade (TIP) conducted in 2018. The defence argued that the identification was unreliable due to contradictions in witness statements, a six‑year gap before an eye‑witness identified the accused, and serious procedural lapses in the TIP memorandum, which was not proved in chief and did not conform to the Criminal Manual or Section 293 Cr.P.C. The court examined these issues, finding the identification to be doubtful and the TIP procedure defective. Consequently, the court suspended the sentence pending appeal and ordered the applicant’s release on bail with conditions.
Issues considered
- Whether the identification of the accused by witnesses, particularly the Test Identification Parade, is reliable and admissible.
- Whether procedural deficiencies in the conduct and documentation of the Test Identification Parade violate the Criminal Manual and Section 293 of the Cr.P.C.
- Whether the sentence imposed should be suspended pending appeal and bail granted on the basis of the identified procedural lapses.
Legislation cited
- Bombay Police Act, 1951 — s. 35, 37(1)(a)
- Code of Criminal Procedure, 1973 — s. 293
- Indian Penal Code — s. 143, 144, 147, 148, 149, 302, 323, 324, 504, 506
Subjects
- bail
- suspension of sentence
- identification evidence
- Test Identification Parade
- procedural lapse
- murder conviction
- IPC
- Criminal Appeal
Judgment
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Rohit Ghuge
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 2215 OF 2026
IN
ROHIT
Digitally signed
by ROHIT
RAMDAS
CRIMINAL APPEAL NO. 377 OF 2026
RAMDAS GHUGE
Date:
GHUGE 2026.09.30
10:53:02 +0530
Anas Afsar Sayyad …Applicant
Versus
The State of Maharashtra …Respondent
_______________________________________________________________
Mr. Ravi Dwivedi a/w Ms. Aishwarya Pandit, Ms. Sakshi Singh, Mr.
Sainath Baji and Mr. Satish Shukla, Advocates for the Applicant.
Ms. Sangeeta Shinde, APP for the Respondent No.1-State.
_______________________________________________________________
CORAM: BHARATI DANGRE &
ASHISH S CHAVAN, JJ.
DATE : 24th SEPTEMBER 2026.
PC.
1. The Applicant who is arraigned as Accused No. 1 in the
proceedings before the Trial Court has approached this Court seeking
suspension of sentence imposed on him vide order and judgment dated
17.09.2025 convicting him for offense punishable under Section 302 of
the Indian Penal Code (“IPC”). The Applicant was sentenced to suffer
imprisonment for life and to pay a fine of Rs. 25,000/-, and in default to
suffer simple imprisonment for a period of one year for offence
punishable u/s 302 of IPC. The Applicant was sentenced to suffer
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rigorous imprisonment for a period of six months and to pay a fine of Rs.
5,000/- and in default to suffer simple imprisonment for a period of three
months for offence punishable u/s 37 (1) (a) r/w 135 of the Bombay
Police Act, 1951.
2. Heard, Mr. Dwivedi, for the Applicant and Ms. Shinde, APP for
Respondent-State, perused the Application and Appeal.
3. The case of the prosecution in a nutshell is that the informant [PW
No. 12], one Mr. Bhavesh, Mr. Rajesh [PW No. 13], Mr. Sumit and one
Devji Kaka were working together at a pay and park contractor. While
working, they noticed that some persons belonging to the Ghodapdev
area would rashly drive motorcycles, and abruptly cross the informant
and other employees, attempting to knock them and then flee away with
speed.
On 01.07.2018, the informant, the deceased and another
employee reported for duty at 08.00 a.m. and started their work. On that
day, in the afternoon, the bike riders came driving in a rash manner,
attempting to dash the informant and others. They again came at about
05.00 p.m. on their motorbikes, proceeding in speed. The informant,
therefore, tried to stop the riders from driving rashly . In an attempt to
do so, he caught hold of a pillion rider’s hand, however, he escaped by
giving a jerk, threatening them with dire consequences.
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In about 5-10 minutes after this, the informant saw that 6 to 7
persons rushed at him and his co-workers. Those persons attacked the
informant, the deceased and Rajesh [PW No. 13] with leather belts, fists
and kicks. The informant and other injured persons tried to go towards
the deceased to help him, but the assailants threatened them, therefore,
they made a run for their respective homes. As a crowd gathered there,
the assailants left the spot. Due to deadly blows, the deceased had
become unconscious. The informant along with his friends shifted the
deceased to Masina Hospital where the deceased succumbed to his
injuries. The statement of PW No. 12 was recorded based on which FIR
vide CR No. 146 of 2018 came to be lodged for offences punishable u/s
302, 324, 323, 143, 144, 147, 148, 149, 504 and 506 of the IPC and
Sections 37 (1) (a) r/w 35 of the Maharashtra Police Act, 1951.
4. During the course of investigation, various panchnamas were
drawn, the dead body was forwarded for post mortem, injury certificate
of PW No. 13 was obtained, Test Identification Parade was conducted,
recovery memorandum panchnama was drawn. The Applicant was
arrested on 03.07.2018. Investigation was concluded, chargesheet was
filed. Case was committed to the Sessions Court. The Applicant pleaded
not guilty and claimed to be tried. The prosecution examined 18
witnesses. No defence witnesses were examined by the Applicant. The
defence of the Applicant was that of total denial and false implication.
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5. On behalf of the Applicant it was contended that there were
several material contradictions in the evidence of PW No.3, the spot
panch witness, according to whose testimony the incident occurred
between 1.00 pm and 2.00 pm which is in contradiction with the case of
the prosecution according to which the incident occurred at about 5.00
pm. It was also argued that PW No. 3 and PW No. 4 [the panch witness
to the recovery panchnama of the Applicant] are not independent
witnesses as they are well acquainted with both the deceased and the
informant. The Ld. Counsel for the Applicant contended that the Test
Identification Parade suffers from patent illegalities and procedural
infirmities. It was also submitted that the CCTV footage does not reveal
the presence of the Applicant or any other witnesses alleged to have seen
the incident. It was therefore submitted that the case of the prosecution
suffers from serious lapses and irregularities and hence, the sentence of
the Applicant deserves to be suspended pending Appeal and the
Applicant deserves to be admitted to bail.
6. Learned APP Ms. Shinde, countered the aforesaid submissions by
arguing that both, in the Test Identification Parade as well as in the
Court, PW No. 12 has identified the Applicant. The death has been
proved to be homicidal in nature and injured eye witness PW No. 13 has
in court identified the Applicant as the person who has assaulted the
deceased with the knife.
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7. Although, the prosecution has relied heavily on the identification
of the Applicant as the assailant who had assaulted the deceased with
knife, the basis of the case against the Applicant i.e. his identification
appears to be unreliable. Although PW No. 13, who is the injured eye
witness claims to have identified the Applicant at the time of assault, he
was not put up as the identifying witness in the Test Identification Parade.
The incident happened in the year 2018 and PW No. 13 has identified
the Applicant in Court for the first time in the year 2024 i.e. after a lapse
of almost six years. It is a settled position of law that dock identification
of an accused who is not known to the witness, especially after
considerable lapse of time cannot be considered reliable. In so far as the
identification of PW No. 12, informant, is concerned he was put up has
an identifying witness in the Test Identification Parade conducted at
Central Jail Arthur Road Mumbai on 03.08.2018. In his oral evidence he
claims to have been called at Arthur Road Jail where he had identified
the Applicant. However, the evidence of PW No. 6, Tahsildar who
conducted the TIP reveals a sorry state of affairs of the manner in which
the TIP was conducted and reduced to writing by way of a
memorandum.
At the outset memorandum of TIP has been exhibited as
substantive evidence without being proved by way of examination in
chief. PW No. 6 has not been shown the memorandum nor any questions
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have been asked to him about the contents of the said memorandum or
the truth or such contents. He has not identified his signature on the
memorandum. This procedure is not in consonance with the guidelines
set out in the Criminal Manual issued by this Court and directions given
therein from time to time on the manner of conducting Test
Identification Parade. The memorandum of the Test Identification Parade
is also not covered by Section 293 of Cr.P.C. which permits the reports of
certain government scientific experts who are specifically enumerated
therein, as substantive evidence. Thus, the learned Trial Court ought to
have examined PW No. 6 Tehsildar and proved the TIP memorandum
through him, in consonance with the Evidence Act. This, in our view is a
serious procedural lapse in the manner in which the memorandum is
proved before the Trial Court. Even otherwise, documents purporting to
the memorandum of TIP are pre-printed formats which are filled up with
details in handwriting. The Criminal Manual issued by this Court in
Chapter-1 has set out exhaustive guidelines for holding Test
Identification Parade followed by an illustrative draft of memorandum of
Test Identification Parade.
A perusal of the Test Identification Parade memorandum in the
present facts reveals that, the pre-printed format is not in consonance
with the requirements of carrying out Test Identification Parade as set out
in the Criminal Manual. Pertinently, in the entire format there is no
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column or mention of the fact as to whether the identifying witness has
actually identified the accused or not. The learned counsel for the
Applicant has invited our attention to the deposition of PW No. 6 who
admits that he has not read the guidelines about how to conduct Test
Identification Parade as provided by the Criminal Manual. He also
admits that he has no knowledge about the illustrative drafts provided for
in the Criminal Manual, and that, he has not written whether the witness
had identified the Applicant or not. This is another serious procedural
lapse which undermines the identification of the Applicant in the Test
Identification Parade. We can only wonder why the exercise of preparing
some pre-printed formats was necessary to be done when the Criminal
Manual itself provides for an instructive draft memorandum which can
be used by the investigating agency. We can only hope and trust that, at
least, in the future such procedural lapses are not committed by the
investigating agency and the prosecuting machinery.
In the wake of the aforesaid discussion, it is evident that the
identification of the Applicant by the PW No. 12 (first informant) suffers
from material discrepancies. Although, there is alleged recovery of knife
at the instance of the Applicant, the unreliability of identification of the
Applicant is a circumstance which prompts us to suspend the sentence
against the accused and admit him to bail on certain conditions. Hence,
the following order.
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:ORDER:
i) The sentence imposed by the learned Additional Sessions Judge,
vide his judgment and order dated 17.09.2025, in Sessions Case No.
100617 of 2018 is suspended during the pendency of the Appeal.
ii) The Applicant be released on bail on executing PR bond in the sum
of Rs.10,000/- (Ten Thousand only) with one local surety in the like
amount to the satisfaction of the learned Trial Court.
iii) The Applicant shall not leave the State of Maharashtra without
prior permission of this Court.
iv) The Applicant shall inform the Trial Court of his contact details
and residential address alongwith changes therein, if any.
v) The Applicant shall attend the Trial Court on such of the dates as
directed by it to mark his presence. He shall first mark his presence on
05th October, 2026 and thereafter as per the directions of the Trial Court.
vi) Infraction of any of the aforesaid conditions would entitle the State
to move for cancellation of bail.
Interim Application No. 2215 of 2026 is disposed of in the
aforesaid terms.
ASHISH S. CHAVAN, J. BHARATI DANGRE, J.
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