Deepak Vishwakarma @ Sanam Vs State of Chhattisgarh

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2025:CGHC:59867

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Digitally signed by ALOK ALOK SHARMA SHARMA Date:2025.12.09 18:40:14 +0530

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HIGH COURT OF CHHATTISGARH AT BILASPUR Jugment Reserved on : 28/10/2025 Judgment Delivered on: 09/12//2025

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NAFR

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CRA No. 1560 of 2025

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1 - Deepak Vishwakarma @ Sanam S/o Rajaram Vishwakarma Aged About 20 Years R/o Ward No. 2, Behind Sub Area Office Pouradhar, Police Station Ramnagar, District Anuppur, M.P.

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2 - Dharamsai Chouhan S/o Sawan Chouhan Aged About 20 Years R/o Ward No. 2, Behind Sub Area Office Pouradhar, Police Station Ramnagar, District Anuppur, M.P.

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3 - Shani Vishwakarma S/o Krishna Vishwakarma Aged About 18 Years R/o Ward No. 2, Behind Sub Area Office Pouradhar, Police Station Ramnagar, District Anuppur, M.P.

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4 - Ajay Chouhan S/o Awadhesh Chouhan Aged About 28 Years R/o Ward No. 2, Behind Sub Area Office Pouradhar, Police Station Ramnagar, District Anuppur, M.P.

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... Appellant(s)

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versus

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1 - State of Chhattisgarh Through The Officer-In-Charge Jhagarakhand, District : Manendragarh-Chirmiri-Bharatpur, Chhattisgarh

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... Respondent(s)

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For Appellant(s) : Mr. Hemant Kumar Agrawal, Advocate. For Respondent(s) : Ms. Laxmeen Kashyap, Panel Lawyer.

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Hon'ble Shri Justice Ravindra Kumar Agrawal, J. CAV Judgment

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1 . The present criminal appeal has been filed by the appellants against the impugned judgment of conviction and sentence dated 14.07.2025 passed by learned Second Additional Sessions Judge, Manendragarh, District Korea in Sessions Case No. 79 of 2022, whereby the appellants have been convicted for the offence under Section 397 of IPC and sentenced for RI for 07 years with fine of Rs. 1,000/-, in default of payment of fine, further RI for 06 months.

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2 . The brief facts of the case are that on 02.07.2022 at about 11:30 p.m, when the complainant Akash Diwan PW-1 returning to his house after his duty from Beharabandh Colliery to Bijuri and going through village Ledari forest, 3 – 4 unknown persons standing on the road having danda in their hands and they assaulted the complainant by danda by which the complainant fell down on the road. Thereafter, they dragged him inside the jungle and looted his mobile phone, golden finger ring, silver chain, smart watch and purse in which the aadhar card, pan card and driving licence of the complainant was there. By the assault made by the accused persons, the complainant received injuries on his chest, left leg and shoulder. On 05.07.2022 the complainant lodged report to the police on which the FIR (Ex.P/1) for the offence under Section 394 of IPC has been registered against the unknown persons. The complainant was sent for his medical examination to Community Health Centre, Manendragarh, where PW-4 Dr. Archana Kumhare medically examined him and gave her report Ex.P/19. While examining the complainant the doctor has noticed immobility at left shoulder joint and brasses elbow support present at left ribs region.

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3 . The spot map Ex.P/2 was prepared by the police and Ex.P/5 was prepared by the Patwari. The police has seized the bills of smart watch, golden finger ring, silver chain and mobile phone from the complainant vide seizure memo Ex.P/4. During the course of investigation the accused persons were taken into custody on 06.07.2022 and the memorandum statement of the accused Deepak Vishwakarma @ Sanam (Ex.P/21), Dharamsai Chouhan (Ex.P/22) were recorded and based on their memorandum statement one mobile phone and one wooden danda has been seized from the accused Deepak Vishwakarma @ Sanam vide seizure memo Ex.P/11, from the accused Surajdas one pair of silver anklet has been seized vide seizure memo Ex.P/7, from the accused Saifuddin Sheikh one golden ring has been seized vide seizure memo Ex.P/8, from the accused Dharamsai Chouhan one smart

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watch has been seized vide seizure memo Ex.P/9, from the accused Ajay Chouhan one silver chain has been seized vide seizure memo Ex.P/10, from the accused Shani Vishwakarma RC book of motorcycle No. CG 16CE9913, aadhar card, pan card and driving licence of the complainant has been seized vide seizure memo Ex.P/12. The accused persons were put to test identification parade on 06.07.2022 which was conducted by the police inspector P. Tiwari in which the complainant had identified the present appellants and a test identification memo Ex.P/3 was prepared. Statement of the witnesses have been recorded and after completion of usual investigation charge-sheet has been filed before the learned Judicial Magistrate First Class, Manendragarh under Section 394, 412, 34 of IPC against the 06 accused persons including the present appellants.

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4 . The case was committed to the learned trial Court for its trial. The learned trial Court has framed charge for the offence under Section 397 of IPC against the accused Deepak Vishwakarma @ Sonam, Dharamsai Chouhan, Ajay Chouhan and Shani Vishwakarma whereas the charge against the two other co-accused persons Saifuddin Sheikh and Surajdas has been framed under Section 412 of IPC. The accused persons denied the charge and claimed trial.

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5 . In order to prove the charge against the accused persons, the prosecution has examined as many as 08 witnesses. Statement of the accused persons under Section 313 of Cr.P.C. have also been recorded in which they denied the circumstance that appears against them, pleaded innocence and have submitted that they have been falsely implicated in the offence.

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6 . After appreciation of oral as well as documentary evidence led by the prosecution, the learned trial Court has acquitted the co-accused persons Saifuddin Sheikh and Surajdas from the offence under Section 412 of IPC and has convicted the present appellants for the offence under Section 397

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of IPC and sentenced them as mentioned in the earlier part of this judgment. Hence this appeal.

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7 . Learned counsel for the appellants would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the evidence of prosecution witnesses which cannot be made basis to convict them in the offence in question. There is no eye-witness to the incident and the case of the prosecution is based on test identification parade and recoveries of the articles belonging to the complainant. However, both these grounds would have been established by the prosecution in accordance with law. The test identification parade of the accused persons have been conducted by the investigating officer that too in presence of the police persons, therefore, the test identification cannot be relied upon. The witnesses to the memorandum and seizure have not supported the prosecution case despite the fact that they are friends and near relatives of the complainant. He would further submits that the ingredients of Section 397 of IPC are totally missing in the case as the complainant was not assaulted by any deadly weapon or he has not received any grievous injuries while committing alleged offence by the accused persons. The injuries found on the body of the complainant was simple in nature. He would also submits that the FIR has been lodged after 02 days of the incident and there is no explanation for delay in lodging the report. Therefore, there is no sufficient evidence against the appellants in the case and the appellants are entitled for their acquittal.

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8 . On the other hand, learned counsel for the State opposes the submissions made by learned counsel for the appellants and have submitted that there are sufficient evidence on record against the appellants to convict them for the alleged offence. The appellants have been identified by the complainant in the Court at the time of his evidence and doc identification is a relevant piece of evidence and conviction can also be made on the basis of doc

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identification of the accused persons. There is no explanation from the accused persons with respect to the possession of the articles belonging to the complainant i.e. his aadhar card, pan card, driving licence, RC book of his motorcycle, mobile phone of the complainant. But for minor omissions or contradictions, the evidence of prosecution witnesses are corroborative in nature which pointed out towards guilt of the appellants. The complainant was being assaulted by the accused persons by danda and he received injury which resulted to immobility of his left shoulder joint which are the grievous injury, therefore, the learned trial Court has rightly convicted the appellants for the offence under Section 397 of IPC and there is no merit in their appeal and the same is liable to be dismissed.

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9 . I have heard learned counsel for the parties and perused the record of the learned trial Court and gone through the judgment.

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10. The sum and substance of the prosecution case is that on 02.07.2022 in the night at about 11:30 pm the appellants looted the complainant near Ledari forest and assaulted him by danda and looted the mobile phone, golden ring, silver chain, smart watch seized. During the investigation the accused persons were arrested, they have been identified by the complainant and the articles belonging to the complainant were seized from the accused persons. The case of the prosecution is mainly rests on the test identification parade of the accused persons and articles belonging to the complainant seized from them. In the present case the prosecution relied upon the test identification parade memo Ex.P/3 which was prepared by the investigating officer P. Tiwari PW-7. Before discussing the evidence of PW-7 P. Tiwari, it would be proper to deal with the evidence of the complainant Akash Diwan PW-1, lodger of the FIR Ex.P/1 which has been lodged on 05.07.2022. PW-1 Akash Diwan stated that when he was coming from his duty through the Ledari forest, on the wary 3 – 4 unknown persons standing on the road and they assaulted him by danda and after looted his phone, silver chain, golden

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ring, smart watch and purse they fled away. He also stated about description of the accused persons and said that he would identify if he will see them.

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11. PW-1, have stated in his evidence that he identify all the four accused persons from the time of the incident. During the investigation, the accused persons to whom the complainant identify, have disclosed their names who are the appellants. He stated that when he was returning from his duty on 02.07.2022 from SECL to South Jhagrakhand at New Ledari by his motorcycle, on the way before his village Ledari, all the four accused persons were standing on the road having danda in their hands. As and when he reached there by his motorcycle, they started assaulting him by danda. Due to their assault, his motorcycle got unbalanced and he fell down on the road. The accused persons gagged his mouth and dragged him inside the jungle. By the assault made by the accused persons, he received fracture on his left shoulder. He identify the accused Deepak Vishwakarma who gagged his mouth. The accused Shani Vishwakarma looted his golden ring, Dharamsai Chouhan looted him mobile phone and leather purse and silver chain. He was having aadhar card, pan card, ATM card, credit card and driving licence in his purse. One person amongst Ajay Chouhan and Shani Vishwakarma, looted his Realme wrist watch. The person who wore yellow t-shirt, assaulted him by danda and threatened that if he disclosed the incident to anyone they would come in his resident and again would assaulted him because they have his address in the documents available in the purse. They also threatened that if he would lodge the report, they would kill him. Somehow he took his motorcycle and came back to his house. He informed his mother and elder brother about the incident and since he was having severe pain in his left shoulder and afraid of with the incident and also in view of that the accused persons again came to their house because they are having his address in the documents, he refused to go to lodge report in the night. On 03.07.2022 he had gone to Police Station along with his friends and lodge

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the report which is Ex.P/1. On 05.07.2022 the police called him at Police Station Jhagrakhand and when they reached to the Police Station it has been informed that all the accused persons have been arrested. He identified Shani Vishwakarma and Deepak Vishwakarma as the accused persons. Thereafter, the police took his friend Rohit and accused Deepak Vishwakarma to the house of co-accused Saifuddin Sheikh and seized his golden ring from him, thereafter, they came back to their house.

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On 06.07.2022, the police again called them and again put the four accused persons for their identification and he identified all the four accused persons who involved in commission of the offence. The test identification panchnama Ex.P/3 was prepared. He has taken treatment of his injuries on 03.07.2022 at Central Hospital Amakherwa, Manendragarh, and the doctor has opined that he is having bone fracture in his left shoulder. He produced bills of all the articles looted from him and the police has seized the same vide seizure memo Ex.P/4.

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In cross-examination he stated that on 03.07.2022 itself the police has registered the offence. On 05.07.2022 he came to know that his golden ring was being sold to accused Saifuddin Sheikh. On 06.07.2022 when he had gone to Police Station, he saw the accused Saifuddin Sheikh there. He admitted that he has not disclosed about the fracture on his shoulder in the FIR as well as in police statement. He also admitted that he did not disclosed in the FIR about threatening given by the accused persons with dire consequence. He further admitted that he has not produced x-ray report to the police. He also not produced before the police the bills of finger ring and anklet. In further cross-examination he admitted that he was not acquainted with the accused persons prior to the incident. He denied that he has not disclosed in his police statement about the fact that he received injuries by the assault made by the accused persons.

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12. With respect to test identification parade memo Ex.P/3, he stated that on 05.07.2022 he identify only two accused persons at Police Station when they have been called by the police and in the next morning i.e. on 06.07.2022, he identify all the four accused persons at Police Station Jhagrakhand who prepared the memo Ex.P/3.

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13. PW-2 Rohit Singh and PW-3 Sanjay Kumar Diwan are the witnesses to the TIP memo Ex.P/3.

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14. PW-2, Rohit Singh has stated in his evidence that he identify the accused persons Deepak Vishwakarma, Shani Vishwakarma, Ajay Chouhan and Dharamsai Chouhan by their faces but he could not know their names. He identify the accused Saifuddin and he was having a jewellery shop at Manendragarh, he has not identify the accused Surajdas. On 03.07.2022 at about 11:00 am the complainant Akash Diwan came to him and informed about the incident that on 02.07.2022 when he was returning to his house from his duty in the night, all the four accused persons assaulted him by danda on the road and when he fell down from the motorcycle, they dragged him inside the jungle and looted his mobile phone, silver chain, golden ring, smart watch and purse and threatened them that if he will disclosed the incident to anyone he would be killed, thereafter, they had gone to Police Station and lodge the report. On 04.07.2022 the police inspector Praduman Tiwari called him to Police Station and when they had gone to Police Station, they shown a video clipping and asked the complainant Akash Diwan to identify the accused who had committed the offence with him, but Akash Diwan was not sure that they have committed the offence with him. The appearance was shown in the said video clipping on 05.07.2022 at about 11:30 in the night, the police again called them and stated that they have arrested the accused persons who has committed the offence. When they had gone to Police Station the police took them near Khan Nurshing Home and arrested another accused Saifuddin Sheikh and came back to Police

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Station Jhagrakhand. On 06.07.2022 the police again called them and when they reached to the Police Station all the four accused persons were present but have not conducted any test identification parade in his presence, however, his signature is there in the Ex.P/3. He further stated that on 06.07.2022 they again had gone to Police Station at about 08:30 in the night. Out of numerous articles lying there, they asked the complainant Akash Diwan to took up his articles, then the complainant Akash Diwan took his mobile phone, silver chain, golden ring, and smart watch. The police has not inquired from the accused persons in his presence and have not seized anything from them. He denied the recording of the memorandum statements and seizure made from the accused persons. At this stage, this witness has been declared hostile and not supported the memorandum and seizure from the accused persons. In cross-examination he admitted that the complainant Akash Diwan informed him that he could not identify the accused persons at the time of incident due to the darkness.

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15. The other witness Sanjay Kumar Diwan PW-3 had not supported the prosecution case and turned hostile. He also did not identify the accused persons nor he supported memorandum and seizure from the accused persons.

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16. PW-7, Praduman Tiwari is the Investigating officer. He stated in his evidence that on 05.07.2022, the complainant Akash Diwan lodged a report against unknown person on which he registered the FIR and sent him for his medical examination. On 06.07.2022 he recorded the memorandum statement of the accused Deepak Vishwakarma who was also an accused in the offence of Crime No. 142/2022 registered at Police Station Jhagrakhand in which he disclosed about commission of the present offence along with his other friends. He also disclosed the other offence which he along with other accused persons have committed at different point of time. On 06.07.2022 he recorded memorandum statement of Dharamsai Chouhan who was also

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accused in Crime No. 142/2022 who too have disclosed about the present incident along with other offences which they have committed. He also recorded the memorandum of Surajdas who was the brother-in-law of Deepak Vishwakarma who also disclosed that on 03.07.2022, Deepak Vishwakarma came to his house and asked him to accompany him to sell the golden ring and then they sold the golden ring to Vardhman Jewellers, Manendragarh which was sold for the consideration of Rs. 13,000/- out of which he took 7,000/- cash and one pair of silver anklet worth Rs. 6,000/-. From the accused persons they seized the articles. He further stated that from the accused Deepak Vishwakarma one mobile phone and wooden danda have been seized, from the accused Dharamsai Chouhan one old smart watch has been seized, from the accused Surajdas one silver anklet, one silver bracelet has been seized, from the accused Saifuddin Sheikh one golden ring has been seized, from the accused Ajay Chouhan one silver chain has been seized and from the accused Shani Vishwakarama RC book of the motorcycle No. CG 16 CE 9913 which was in the name of complainant Akash Diwan, his aadhar card, pan card and driving licence have been seized. He also seized the bills of the seized articles which was in the name of the complainant Akash Diwan. In cross-examination he stated that after two days of the incident the complainant had lodged the report. The motorcycle bearing No. CG 16 EC 9913 have not been seized in the case. He also admitted that with respect to the injury of the complainant he has not seized any document from the hospital from where he was treated. He also have not get any query report from the doctor about the nature of the injuries. He further stated that on the basis of memorandum statement of Surajdas and Deepak Vishwakarma, the accused Saifuddin Sheikh was being called for interrogation and then the golden ring has been seized from him. He further stated that on the basis of report made by the complainant he registered the offence of loot. He also stated that he conducted the test

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identification parade of the accused persons on 06.07.2022 at Community Centre Jhagrakhand and prepared TIP memo Ex.P/3. Indubitably the TIP of the accused persons was conducted by the investigating officer on 06.07.2022 on the date when they were arrested, but from the evidence of PW-1 complainant Akash Diwan, he identify two accused persons Deepak Vishwakarama and Shani Vishwakarama on 05.07.2022 and all the four accused persons on 06.07.2022.

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17. PW-2 Rohit Singh, have stated that on 04.07.2022 the police called them and shown them the video clipping and asked to identify the accused persons but the complainant Akash Diwan was unable to identify them.

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18. On 05.07.2022 again he was called by police and on 06.07.2022 again when they were called by the police, all the accused persons were there in the Police Station, however, no TIP was conducted by the police.

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19. PW-2 has not supported the test identification parade or memorandum or seizure.

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20. PW-3, who is the another witness to the TIP and memorandum and seizure have also not supported the prosecution case.

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21. The another witness PW-6 Vijendra Dewangan he also one of the witness to the test identification parade have also not supported the prosecution case and have turned hostile. He specifically stated that the police has not conducted any test identification parade in his presence and his signature is not there in Ex.P/3. From the aforesaid evidence it is quite vivid that although the witness to the TIP Ex.P/3 have not supported the prosecution case and even there is various discrepancies on the date the TIP was alleged to have been conducted by the police, however, the fact remains that the TIP was conducted by the investigating officer on 06.07.2022. From the evidence of the complainant and PW-2, he had seen the accused persons at Police Station when they have been called by the police.

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22. The test identification parade at the stage of investigation by the police assures that the investigation is proceeding in the right direction. It is rule of prudence which is required to be followed in the cases where the accused not known to the witness or the complainant. The evidence of TIP is admissible under Section 9 of the Evidence Act, however, it is not a substantive piece of evidence. Instead, it is used to corroborate the evidence given by the witnesses before the Court. The conduction of the fair test identification parade would become necessary to eliminate the possibility of the accused being shown to the witnesses before the TIP.

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23. In the matter of Gireesan Nair and Others vs. State of Kerala 2023(1) SCC 180, the Hon’ble Supreme Court has held in Para 31, 32, 33, 34, 44, 45, 48, 49 and 55 as under:

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31. In cases where the witnesses have had ample opportunity to see the accused before the identification parade is held, it may adversely affect the trial. It is the duty of the prosecution to establish before the court that right from the day of arrest, the accused was kept "baparda" to rule out the possibility of their face being seen while in police custody. If the witnesses had the opportunity to see the accused before the TIP, be it in any form.i.e. physically, through photographs or via media (newspapers, television, etc.), the evidence of the TIP is not admissible as a valid piece of evidence (Lal Singh v. State of U.P.6 and Suryamoorthi v. Govindaswamy 18).

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32. If identification in the TIP has taken place after the accused is shown to the witnesses, then not only is the evidence of TIP inadmissible, even an identification in a court during trial is meaningless (Sk. Umar Ahmed Shaikh v. g State of Maharashtra). Even a TIP conducted in the presence of a police officer is inadmissible in light of Section 162 of the Code of Criminal Procedure, 1973 (Chunthuram v. State of Chhattisgarh 19 and Ramkishan Mithanlal Sharma State of Bombay 20).

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33. It is significant to maintain a healthy ratio between suspects and nonsuspects during a TIP. If rules to that effect are provided in Prison Manuals or if an appropriate authority has issued guidelines regarding the ratio to be maintained, then such rules/guidelines shall be followed. The officer conducting the TIP is under a compelling obligation to mandatorily maintain the prescribed ratio. While conducting a TIP, it is a sine qua non that the non-E suspects should be of the same age-group and should also have similar physical features (size, weight, colour, beard, scars, marks, bodily injuries, etc. to that of the suspects. The officer concerned overseeing the TIP should also record such physical features before commencing the TIP proceeding. This gives credibility to the TIP and ensures that the TIP is not just an empty, formality (Rajesh Govind Jagesha v. State of Maharashtra and Ravi V Statelo).

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34. It is for the prosecution to prove that a TIP was conducted in a fair manner and that all necessary measures and precautions were taken before conducting the TIP. Thus, the burden is not on the defence.

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Instead, it is on the prosecution (Rajesh Govind Jagesha v. State nd Jagesha v. State of Maharashtra).

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44. This Court in Budhsen v. State of U.P.22, had directed that sufficient precautions have to be taken to ensure that the witnesses who are to participate in the TIP do not have an opportunity to see the accused before the TIP is b conducted. In Lal Singh v. State of U.P.6, this Court had held that a trial would be adversely affected when the witnesses have had ample opportunity to see the accused before the identification parade is held. It was held that the prosecution should take precautions and establish before the court that right from the day of his arrest, the accused was kept "baparda" to rule out the possibility of his face being seen while in police custody. Later, in Lalli v. State of Rajasthan c and Maya Kaur Baldevsingh Sardar v. State of Maharashtra 23, this Court has categorically held that where the accused has been shown to the witness or even his photograph has been shown by the investigating officer prior to a TIP, holding an identification parade in such facts and circumstanees remains inconsequential.

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45. Another crucial decision was rendered by this Court in Sk. Umar Ahmed d Shaikh v. State of Maharashtra, where it was held: (SCC p. 107, para 8)

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"8. ... But, the question arises what value could be attached to the evidence of identity of accused by the witnesses in the Court when the accused were possibly shown to the witnesses before the identification parade in the police station The Designated Court has already recorded a finding that there was strong possibility that the suspects were shown to the witnesses. Under such circumstances, when the accused were already shown to the witnesses, their identification in the Court by the witnesses was meaningless. The statement of witnesses in the Court identifying the accused in the Court lost all its value and could not be made the basis for recording conviction against the accused. The reliance of evidence of identification, of the accused in the Court by PW 2 and PW 11 by the Designated Court, was an erroneous way of dealing with the evidence of identification cation of the accused in the Court by the two eyewitnesses and had caused failure of justice. Since conviction of the appellants have been recorded by the Designated Court on wholly unreliable evidence, the same deserves to be set aside. (emphasis supplied)

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48. Having considered the evidence of crucial eyewitnesses and the material indicating the conduct of the TIP, we are of the opinion that the g witnesses had the opportunity of seeing the accused before the conduct of the TIP. Not only have the witnesses deposed that they had seen the suspects before the TIP, even Accused 2, at the end of the Ist TIP, had raised a grievance that the suspects were all photographed, videographed and were shown to the witnesses from the cabin of the IO (PW 84). At the end of the 2nd TIP, he had also stated that when Accused 1-19 were taken to court for the purpose of remand, and the presence of all the witnesses was arranged in the court by the police. In fact. all the accused collectively stated that they were wearing the very same dress, straight from their arrest, till the date of the TIP to indicate that the TIP did not serve its purpose. We find no reason to disbelieve the truthfulness of the statement of the accused because they had raised this contention right from the beginning and have maintained it all along.

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49. In view of the above, we are of the opinion that there existed no useful purpose behind conducting the TIP. The TIP was a mere formality, and no value could be attached to it. As the only evidence for convicting the appellants b is the evidence of the eyewitnesses in the TIP, and when

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the TIP is vitiated, the conviction cannot be upheld. We will now examine the other lapses while conducting the TIPs.

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55. A three-Judge Bench of this Court in Chunthuram v. State of Chhattisgarh 19, by relying on Ramkishan Mithanlal Sharma v. State of Bombay 20, has held that any identification made by witnesses in a TIP in the presence of a police officer tantamounts to statements made to the police officer f under Section 162 CrPC. The Court held: (Chunthuram case 19, SCC p. 737, para 11)

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“11. The infirmitjes in the conduct of the test identification parade would next bear scrutiny. The major flaw in the exercise here was the presence of the police during the exercise. When the identifications are held in police presence, the resultant communications tantamount to statements made by the identifiers to a police officer in course of investigation and they fall within the ban of Section 162 of the Code."

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24. In the matter of Umesh Chandra and Others vs. State of Uttarakhand

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2021 (17) SCC 616 , the Hon’ble Supreme Court has considered in Para -10 that:

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10. If the prosecution has failed to establish that a TIP was properly held by examining the witnesses to the same, there is nothing for the accused to disprove. In the present case, a Magistrate is stated to have conducted the TIP. The Magistrate has not been examined. No explanation is forthcoming why the Magistrate was not examined. The only evidence available is that of PW 4 the Station House Officer that during the investigation the TIP was held in the District Jail, Nainital and he identifies the proceedings in the court. The identification of the proceedings is irrelevant as obviously he could not have been present during the TIP. The TIP, a part of the h investigation, therefore cannot be said to have been proved much less that it was held in accordance with the law. Secondly there cannot be repeated TIPS till such time that the prosecution is successful in obtaining identification of the accused.”

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25. From the evidence led by the prosecution the uncontroverted evidence remains that TIP of the accused persons was conducted by the investigating officer and before the test identification parade, the complainant as well as the witnesses have seen the accused persons at Police Station, therefore, this Court is of the opinion that test identification parade Ex.P/3 does not have any bearing with respect to the evidence against the present appellants and the same looses its efficacy.

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26. The learned trial Court has considered in its judgment that even if the accused persons were seen by the complainant in the Police Station or before the test identification parade, they have identified the accused persons before the Court and the doc identification is substantiated by the prosecution which leads to conviction of the appellants. The doc identification

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is a very weak type of evidence when the accused persons were seen by the witnesses before the test identification parade in the Police Station, the doc identification would also does not rescued the prosecution as the witness have already seen the accused persons before they making the statement in the Court. They had an ample opportunity to see them in the Police custody and thus the doc identification, if any, would also looses its efficacy and is not sufficient to hold conviction of the accused persons on that ground.

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27. The another ground of conviction of the appellants that the articles belonging to the complainant i.e. mobile phone, golden ring, golden chain, smart watch and purse having driving licence, aadhar card have been seized from the accused persons. The independent witnesses PW-2 and PW-3 of memorandum and seizure have not supported the prosecution case and they have turned hostile and specifically denied that the accused persons have not interrogated in their presence and no seizure have been made from them.

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28. PW-2, have stated in Para-8 of his evidence that when they had gone to Police Station, various articles lying there and asked the complainant to pick up his articles. From the evidence of the Investigating officer Praduman Tiwari PW-7, it transpires that the accused persons have disclosed various offence which they alleged to have committed and various offence have been registered against them. He also stated that during the commission of various offences, the loot of various articles from various persons have been disclosed by the accused persons, therefore, it is quite possible that after arrest of the accused persons, the police have seized various articles from them and then the complainant was called by the police and asked him to pick up his articles in that situation it cannot be said as to from which accused what articles have been seized. Though the police have come with the strength that from the accused Deepak Vishwakarma mobile phone of the complainant, from Dharamsai Chouhan one smart watch of the

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complainant, from Shani Vishwakarama the RC book of the motorcycle of the complainant, aadhar card, pan card and driving licence of the complainant and from the accused Ajay Chouhan silver chain have been seized, however, the evidence with respect to the memorandum and seizure of the articles from the accused persons are not of that sterling quality which makes the accused persons liable for possession of articles belonging to the complainant which pointed out towards guilt of the accused persons that they have committed the offence of loot with the complainant.

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29. Further there is no medical report with respect to the nature of injuries found on the body of the complainant. From the MLC report Ex.P/19 the doctor has opined immobility at left shoulder joint and brasses elbow support was present.

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30. PW-4, Dr. Archana Kumhare have stated in her evidence that the complainant have not disclosed about any other injuries and he has already been treated before his examination by her. There is no evidence on record with respect to the grievousness of the injury or any x-ray report which proves that the complainant received fracture or grievous injuries on body. There is another aspect that the injury comes from the evidence of the complainant that when the accused persons have assaulted him, he fell down from the running motorcycle and the shoulder injury may have been caused by falling on the road by the motorcycle. Though the injury may be a consequence of the assault made by the accused persons, however, in absence of any specific injury report it cannot be said that the complainant received grievous injuries caused by any dangerous weapons while committing the offence with him.

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31. From the aforesaid consideration this Court does not find any sufficient evidence against the accused persons/appellants to uphold their conviction for the offence under Section 397 of IPC. Accordingly, their appeal is allowed . They have been acquitted from the alleged offence from

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17

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giving them the benefit of doubt. The impugned judgment of conviction and sentence dated 14.07.2025 is set aside .

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32. The appellants are reported to be in jail since 07.07.2022 they be released forthwith if not required in any other case.

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33. The trial Court record along with a copy of this judgment be sent back to the trial Court concerned for compliance and necessary action.

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Sd/-

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(Ravindra Kumar Agrawal) Judge