SANJU ALIAS SANJAY Vs. STATE OF M P

JUDGEMENT

(1.) Appellants Sanju alias Sanjay and Rajesh have been convicted under Section 394 I.P.C. and sentenced to rigorous imprisonment for five years and to a fine of Rs. 1.000/each. It appears that one more accused Aisu alias Raju was also convicted and sentenced but it is not known whether he has filed any appeal or not.

(2.) After hearing the learned counsel for both the sides and after careful consideration of the evidence on record this Court is of the opinion that the conviction of appellants Sanju and Rajesh under Section 394 I.P.C. is not sustainable. Prosecution case was that appellants Sanju and Rajesh were also with accused Aisu when Badri Prasad (P.W. 1) was robbed of a golden chain Article A and an amount of Rs. 870/ - kept in a purse in his trouser. The incident is said to have taken place at 11 P.M. on 115-1999 near Apsara Talkies. F.I.R. Ex. P 1 was lodged without any delay. It is beyond dispute that the incident of robbery did take place. The only question is whether appellants Sanju and Rajesh were the persons who participated in this robbery. The prosecution case was based on identification of these two persons by Badri Prasad (P. W. 1) and his son Bijendra (P.W. 2). A careful scrutiny of the evidence on record reveals that the evidence relating to test identification is meaningless. Brijesh (P.W. 4) has stated in cross-examination that on the next date of the incident his statement was recorded at the Police Station. At the same time the statements of Badri Prasad (P.W. 1) and Bijendra (P.W. 2) were also recorded. At that time accused persons were also in the Police Station and he was asked to identify them. This witness is further very firm on this point that Badri Prasad (P.W. 1) and his son Bijendra (P.W. 2) had also seen and identified the accused persons on that date at the police station. It is thus clear that Badri Prasad (P.W. 1) and his son Bijendra (P.W. 2) had an opportunity to see the accused persons at the Police Station before the formal test identification parade in jail on 19-5-1999 as per identification memo Ex. P-3. This is enough to vitiate the identification parade. The evidence of Badri Prasad (P.W. 1) and Bijendra (P.W. 2) in the Court that accused Sanju and Rajesh were the persons who participated in the robbery though legally admissible is not of much probative value. They had seen the accused persons at the police station and on that basis they must have identified them in the test identification parade and in the Court. In Sheikh Umar v. State of Maharashtra, the Supreme Court has held that where there is clear evidence to show that the accused persons were shown to the witnesses, the identification of such accused by the witnesses in the Court was meaningless. Therefore, the identification evidence in the present case to implicate the appellants is to be rejected.

(3.) The appellants have also been sought to be connected with the crime By the seizure of currency notes of Rs. 100/- each from them. A currency note of the denomination of Rs. 100/- is said to have been seized from accused Rajesh on 15-5-1999 by F.S. Randha (P.W. 12), the Police Inspector. The panch witnesses have not supported his evidence. Even if the testimony of the Police Officer is believed on the point that this currency note was seized from accused Rajesh that is not sufficient to connect him with the crime as this currency note was not identifiable. That is also the finding of the trial Court.