GIREESAN NAIR & ORS. ETC. versus STATE OF KERALA on 11 November 2022

[2022] 8 S.C.R. 599

GIREESAN NAIR & ORS. ETC.

v.

STATE OF KERALA

(Criminal Appeal Nos. 1864-1865 of 2010)

NOVEMBER 11, 2022

[B. R. GAVAI ANDPAMIDIGHANTAM SRI NARASIMHA, JJ.]

Evidence Act, 1872 : s. 9 – Test Identification Parade(TIP) –Legality and validity of – Prosecution case that accused persons toavenge the police atrocity hatched a conspiracy, abetted acts ofrioting and destruction of public property – A-17 and A-19 allegedto have caused the death of a bus conductor – Accused convictedand sentenced for hatching conspiracy, murder of the bus conductorand destruction of roadways buses and other public properties –Findings of trial court and High Court on issue of conspiracy andmurder attained finality – As regards, issue of destruction ofproperty, the trial court rejected all the objections to the legalityand credibility of TIP, and convicted the accused Nos. 1-7, 9-12,14, 16 and 18 u/ss. 143, 147, 148 IPC, and s. 3(2)(e) of 1984 Act r/w s. 149 IPC and sentenced to four years of rigorous imprisonment– High Court upheld the same – On appeal, held: Witnesses had theopportunity of seeing the accused before the conduct of TIP – Evenone of the accused deposed to the said effect – There existed nouseful purpose behind conducting the TIP – TIP was a mereformality, and no value could be attached to it – Delay in holdingthe TIP coupled with other circumstances cast a serious doubt onthe credibility of the TIP witnesses – Conduct of the TIP, coupledwith the hovering presence of the police during the conduct of theTIP vitiated the entire process – Trial court as well as the HighCourt erred in relying on the evidence of the TIP witnesses –Discrepancies in the manner in which both the TIPs were conducted,the prosecution could not establish its case beyond reasonable doubt– Apart from the TIPs, no other evidence put forth by the prosecutionto prove the guilt of the accused – When the TIP is vitiated, theconviction cannot be upheld – Appellants acquitted of all thecharges – Code of Criminal Procedure, 1973 – s. 386 – Penal Code,

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A1860 – ss. 143, 147, 148, 149 – Prevention of Damages to PublicProperty Act, 1984 – s. 3(2)(e).

s. 9 – Test Identification Parade – Conduct of – Object ofconducting TIP – Evidentiary value of TIP – Explained.

Allowing the appeals, the CourtB

HELD: 1.1 The eyewitnesses questioned by theprosecution did not give out the names or identities of the accusedparticipating in the riot and involved in the destruction of publicproperty. Therefore, the IO (PW-84) had to necessarily conducta Test Identification Parade (TIP). The object of conducting aCTIP is threefold. First, to enable the witnesses to satisfythemselves that the accused whom they suspect is really the onewho was seen by them in connection with the crime. Second, tosatisfy the investigating authorities that the suspect is the realperson whom the witnesses had seen in connection with the saidoccurrence. Third, to test the witnesses’ memory based on firstDimpression and enable the prosecution to decide whether all orany of them could be cited as eyewitnesses to the crime. [Para25][615-E-G]

1.2 TIPs belong to the stage of investigation by the police.It assures that investigation is proceeding in the right direction.EIt is a rule of prudence which is required to be followed in caseswhere the accused is not known to the witness or the complainant.The evidence of a TIP is admissible under Section 9 of theEvidence Act. However, it is not a substantive piece of evidence.Instead, it is used to corroborate the evidence given by witnessesFbefore a court of law at the time of trial. Therefore, TIPs, even ifheld, cannot be considered in all the cases as trustworthy evidenceon which the conviction of an accused can be sustained. [Para26][615-G-H; 616-A-B]

1.3 It is a matter of great importance both for theinvestigating agency and for the accused and a fortiori for theGproper administration of justice that a TIP is held withoutavoidable and unreasonable delay after the arrest of the accused.This becomes necessary to eliminate the possibility of the accusedbeing shown to the witnesses before the test identification parade.This is a very common plea of the accused, and therefore, theHprosecution has to be cautious to ensure that there is no scope for making such an allegation. If, however, circumstances arebeyond control and there is some delay, it cannot be said to befatal to the prosecution. But reasons should be given as to whythere was a delay. [Para 27][616-C-D]

1.4 In cases where the witnesses have had ampleopportunity to see the accused before the identification paradeis held, it may adversely affect the trial. It is the duty of theprosecution to establish before the court that right from the dayof arrest, the accused was kept “baparda” to rule out thepossibility of their face being seen while in police custody. If thewitnesses 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 notadmissible as a valid piece of evidence. [Para 28][616-E-F]

1.5 If identification in the TIP has taken place after theaccused is shown to the witnesses, then not only is the evidenceof TIP inadmissible, even an identification in a court during trialis meaningless. Even a TIP conducted in the presence of a policeofficer is inadmissible in light of Section 162 of the Code ofCriminal Procedure, 1973. [Para 29][617-A-B]

1.6 It is significant to maintain a healthy ratio betweensuspects and non-suspects during a TIP. If rules to that effectare provided in Prison Manuals or if an appropriate authority hasissued guidelines regarding the ratio to be maintained, then suchrules/guidelines shall be followed. The officer conducting the TIPis under a compelling obligation to mandatorily maintain theprescribed ratio. While conducting a TIP, it is a sine-qua-nonthat the non-suspects should be of the same age-group and shouldalso have similar physical features (size, weight, color, beard,scars, marks, bodily injuries etc.) to that of the suspects. Theconcerned officer overseeing the TIP should also record suchphysical features before commencing the TIP proceeding. Thisgives credibility to the TIP and ensures that the TIP is not justan empty formality. It is for the prosecution to prove that a TIPwas conducted in a fair manner and that all necessary measuresand precautions were taken before conducting the TIP. Thus,the burden is not on the defence. Instead, it is on the prosecution.[Para 30, 31][617-C-F]

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A2.1 Having considered the evidence of crucialeye-witnesses and the material indicating the conduct of the TIP,the witnesses had the opportunity of seeing the accused beforethe conduct of the TIP. Not only have the witnesses deposedthat they had seen the suspects before the TIP, even accusedNo. 2, at the end of the 1st TIP, had raised a grievance that theBsuspects were all photographed, video-graphed and were shownto the witnesses from the cabin of the IO (PW84). At the end ofthe 2nd TIP, he had also stated that when accused Nos. 1-19were taken to court for the purpose of remand, and the presenceof all the witnesses was arranged in the court by the police. InCfact, all the accused collectively stated that they were wearingthe very same dress, straight from their arrest, till the date ofthe TIP to indicate that the TIP did not serve its purpose. Thereis no reason to disbelieve the truthfulness of the statement ofthe accused because they had raised this contention right fromthe beginning and have maintained it all along. In view thereof,Dthere existed no useful purpose behind conducting the TIP. TheTIP was a mere formality, and no value could be attached to it. Asthe only evidence for convicting the appellants is the evidence ofthe eyewitnesses in the TIP, and when the TIP is vitiated, theconviction cannot be upheld. [Para 44, 45][622-A-D]E2.2 Undue delay in conducting a TIP has a serious bearingon the credibility of the identification process. Though there isno fixed timeline within which the TIP must be conducted andthe consequence of the delay would depend upon the facts andcircumstances of the case, it is imperative to hold the TIP at theFearliest. The possibility of the TIP witnesses seeing the accusedis sufficient to cast doubt about their credibility. [Para 46][622-E-F]

2.3 Accused Nos. 1-16 were arrested on 13.07.2000. Insteadof filing an application for conducting a TIP at the earliest, the IO(PW-84) filed a remand application, pursuant to which the accusedGwere remanded to police custody. There is strong evidence thatthe accused were shown to the witnesses during their policecustody period. The fact that an application for conducting a TIPwas filed on 23.07.2000, i.e., the very next day after the policecustody period ended, leads to the inevitable conclusion that theHaccused were taken into police custody to facilitate their easy identification during the TIP. Otherwise, this Court sees noreason why an application for conducting a TIP was not filedimmediately after the arrest of the accused. In suchcircumstances, the delay in holding the TIP coupled with othercircumstances casts a serious doubt on the credibility of the TIPwitnesses. [Para 48][623-F-G;]

2.4 Having considered the statement of the JMFC (PW-47)and the evidence of the IO (PW-84) together, the presence ofthe Investigating Officer at the time of the TIP cannot be ruledout. The Investigating Officer stated that he has not taken anysteps to ensure that the accused and the witnesses do not seeeach other. It is rather surprising to note that Investigating Officerthinks that such a measure is not necessary. The first and secondTIP report made by the JMFC (PW-47) is taken note of. TheMagistrate recorded that the Accused had raised concerns overthe manner in which the TIP was conducted. In view of theevidence available on record, this Court is of the opinion that theconduct of the TIP, coupled with the hovering presence of thepolice during the conduct of the TIP vitiated the entire process.The Trial court as well as the High Court has committed a seriouserror in relying on the evidence of the TIP witnesses for convictingand sentencing the appellants. This Court is of the opinion thatthe conviction and sentencing are not sustainable. In view of theselapses on the part of the prosecution, it is not necessary for thisCourt to consider various other grounds raised by the appellants.[Paras 53 and 56][625-B-C; 626-C-D]

2.5 Having considered the matter in detail and having notedthe various discrepancies in the manner in which both the TIPswere conducted, the prosecution has not established its casebeyond reasonable doubt. Apart from the TIPs, there is no otherevidence put forth by the prosecution to prove the guilt of theaccused for offences under Sections 143, 147, 148 IPC and s.3(2)(e) of PDPP Act r/w 149 IPC. The conviction and sentence ofthe appellants by the High Court and trial court u/ss. 143, 147,148 IPC and s. 3(2)(e) of 1984 Act rw s. 149 IPC is set aside.[Para 57, 58][626-E-H]

Chunthuram v. State of Chhattisgarh (2020) 10 SCC733 : [2020] 8 SCR 1071; Lal Singh and Ors. v. State AB

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[2022] 8 S.C.R.

of UP (2003) 12 SCC 554; Mulla and Anr. v. State ofU.P. (2010) 3 SCC 508:[2010] 2 SCR 633; Matru aliasGirish Chandra v. State of U.P. (1971) 2 SCC 75 :[1971] 3 SCR 914; C. Muniappan and Ors. v. State ofTamil Nadu (2010) 9 SCC 567 : [2010] 10 SCR 262;State of H.P. v. Lekh Raj and Anr. (2000) 1 SCC 247 :[1999] 4 Suppl. SCR 286; Suryamoorthi and Anr. v.Govindaswamy and Ors. (1989) 3 SCC 24; RamkishanMithanlal Sharma v. State of Bombay (1955) 1 SCR903; Rajesh Govind Jagesha v. State of Maharashtra(1999) 8 SCC 428 : [1999] 4 Suppl. SCR 277; Budhsenand Anr. v. State of UP (1970) 2 SCC 128 : [1971] 1SCR 564; Maya Kaur Baldevsingh Sardar and Anr. v.State of Maharashtra (2007) 12 SCC 654 : [2007] 10SCR 752; Subash and Shiv Shankar v. State of U.P.(1987) 3 SCC 331 : [1987] 2 SCR 962; State of A.P. v.Dr M.V. Ramana Reddy and Ors. (1991) 4 SCC 536 :[1991] 3 SCR 600; Sohan and Anr. v. State of Haryanaand Anr. (2001) 3 SCC 620 : [2001] (2) SCR 309; Stateof Rajasthan v. Hanuman (2001) 1 SCC 337; Badriand Ors. v. State of Rajasthan (2000) 10 SCC 246;Acharaparambath Pradeepan and Anr. v. State of Kerala(2006) 13 SCC 643 : [2006] 10 Suppl. SCR 1101;Shaikh Umar Ahmed Shaikh and Anr. v. State ofMaharashtra (1998) 5 SCC 103 : [1998] 2 SCR 1209;Lalli alias Jagdeep Singh v. State of Rajasthan (2003)12 SCC 666; Ravi alias Ravichandran v. Staterepresented by Inspector of Police (2007) 15 SCC 372: [2007] 5 SCR 766; Suresh Chandra Bahri v. State ofBihar (1995) Supp 1 SCC 80 : [1994] 1 Suppl. SCR483; Munna Kumar Upadhyay v. State of AndhraPradesh (2012) 6 SCC 174 : [2012] 6 SCR 611;Pradeepan v. State of Kerala (2005) 3 KLT 1075;Capitol Art House (P) Ltd v. Neha Datta (2022) SCCOnLine Del 1746; Mohanan Nair v. State of Kerala(1989) Cr.L.J. 2106 (Ker) – referred to.

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Case Law Reference

[2001] 2 SCR 309H

referred to

Para 19

GIREESAN NAIR & ORS. ETC. v. STATE OF KERALA

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNos.1864-1865 of 2010.

From the Judgment and Order dated 14.01.2010 of the High Courtof Kerala at Ernakulam in Criminal Appeal Nos.384 and 385 of 2006.

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Ms. Sonia Mathur, Vinay Navare, Sr. Advs., Ms. Bina Madhavan,Lakshay Saini, Nachiketa Joshi, Ms. Ankita Chaudhary, Santosh Kumar,Praneet Pranav, Ms. Archana Pathak, Suyash Pande, Kiran S.Bhattathru, Ms. Prerna Dhall, Ms. Khusboo Aggarwal, Amit Sharma, H

ASimarjeet Singh Saluja, for M/s. Lawyer S Knit & Co., Advs. for theAppellants.Harshad V. Hameed, Dileep Poolakkot, Mrs. Ashly Harshad,Advs. for the Respondent.

The Judgment of the Court was delivered byB

PAMIDIGHANTAM SRI NARASIMHA, J.

1. These appealsaredirected against the judgment of the HighCourt of Kerala upholding the conviction of Accused Nos. 1-7, 9-12, 14,16 and 18 under Sections 143, 147, 148 of the Indian Penal Code, 1860[1],Cand Sections 3(2)(e) of Prevention of Damages to Public Property Act,1984[2], read with Section 149 of the IPC. A sentence of four years ofrigorous imprisonment and a fine of Rs. 10,000, as imposed by the TrialCourt[3],was also upheld by the High Court.

2. Facts : The facts of the present case can be traced back to theDyear 2000 when the State of Kerala decided to delink pre-degree coursesfrom colleges and start plus-two courses at the school level. There wereprotests against the implementation of the said policy. During one of theprotests on 12.07.2000, it is alleged that the police officialswere harsh,and several protesters, including girl students, were injured.To avengethe police atrocity, it is alleged that Accused Nos. 1-2 and 25-33hatchedEa conspiracy to launch a protest the next day to create fear and terror inthe city.

3. In furtherance of the alleged conspiracy, on 13.07.2000, about1500 protestors armed with weapons proceeded towards the GovernmentSecretariat. When the group was met with resistance from the policeFforce, they became violent and caused damage to as many as 81 busesbelonging to the Kerala State Road Transport Corporation[4].A fewprotestors even went inside the garage of KSRTC, and when the KSRTCworkers repelled them, the protestors turned even more violent, leadingto the death ofone Mr.Rajesh, a bus conductor with KSRTC.

G4. In the aftermath of this event, based on the statement given byRajesh, an FIR was registered by PW-72 (head constable) under Sections 1 hereinafter referred to as ‘the IPC’.

2 hereinafter referred to as ‘the PDPP Act’.

3 Additional District and Sessions Judge (Fast Track-1), Thiruvananthapuram in CaseNos. 302 of 2001, 1786 of 2001 and 1313 of 2002 dated 15.02.2006.H4 hereinafter referred to as ‘the KSRTC’.

143, 147, 148, 307, 149 of the IPC, Section 3(2)(e) of the PDPP Act andSections 3 and 5 of the Explosive Substances Act, 1908.As per the FIR,Accused Nos. 1-2 and 25-33 hatched a conspiracy and abetted acts ofrioting. The Appellants herein and Accused Nos. 17 and 19 being part ofthe mob, formed an unlawful assembly which resulted in riots and wide-scale destruction of public property. Further, Accused Nos. 17 and 19were also alleged to have caused the death of Rajesh.

5. Investigation : Pursuant to the lodging of the FIR, PW-78,Circle-inspector, Fort P.S.,as the investigating officer, arrested AccusedNos. 1-16 on 13.07.2000. Two days later, the investigation washandedover to PW-76.After taking over the baton, PW-76 was informed thatRajesh had succumbed to the injuries. Immediately upon receiving thatinformation, PW-76 proceeded to the hospital to conduct an inquest.Afterconcluding that the death was homicidal, he approached theconcerned court, which had taken cognizance of the matter to alter thecharge under Section 307 to that of Section 302 of the IPC.Consideringthe gravity of the subject and wide-scale repercussions, the DirectorGeneral of Police constituted a Special Investigation Team headed byPW-84, the then Dy. S.P., Narcotic and Economic Offences Cell, CBCID,Thiruvananthapuram. After taking charge of the investigation, PW-84arrested Accused Nos. 17-18 on 01.08.2000 and Accused Nos. 19 on04.08.2000. It is PW-84 who completed the investigation and filed acharge sheet before the Trial Court. However, before getting into thedetails of the charges levelled and the consequent decision of the SessionsCourt, it is essential to mention the twoTest Identification Paradesconducted by PW-47, Judicial Magistrate First Class –IV,Thiruvananthapuram, which have a direct bearing on the final decisionin this matter.

6. 1[st] Test Identification Parade:Conducting a Test IdentificationParade[5]was crucial for the prosecution as there were more than 1500people who were part of the mob, and only a handful of them werearrested and charge-sheeted.It is for this reason that the IO (PW-84)submitted a report before theChief Judicial Magistrate[6] and sought theconsent of the CJM for conducting a TIP. The CJM accepted this requestand,by his order dated 24.07.2000, directed PW-47 (JMFC-IV,Thiruvananthapuram) to conduct a TIP. Accordingly, PW-47 decided to 5 hereinafter referred to as ‘TIP’.

6 hereinafter referred to as ‘CJM’.

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Aconduct the TIP on 31.07.2000 for the identification of Accused Nos. 1-16.

7. To protect the sanctity of the TIP, the Judicial Magistrate (PW-47) is said to have instructed the IO (PW-84) to ensure that the witnesses(who were later examined as PWs 1, 3, 4, 5, 6 and 7) earmarked for theBTIP do not get any opportunity to see the Accused before the TIP. Forconducting the TIP, the Judicial Magistrate (PW-47) directed the IO(PW-84) to arrange fortycivilians as non-suspects.The IO (PW-84) could,however, arrange only for thirty non-suspects being twenty police officersand ten civilians. In addition to thesethirty non-suspects, the JudicialMagistrate (PW-47)is said to have shortlisted twenty-one undertrials toCparticipate in the TIP. However, PW-47 decided to go ahead with onlytwenty-one undertrials andten civilians. It is his version that he made aneffort to fetch more undertrials for the TIP, but to no avail. Ultimately,he conducted the TIP by mixing the sixteen accused with the thirty-onenon-suspects.D8. The TIP began with the Judicial Magistrate (PW-47) takingnote of the name, address, and other details of the non-suspects. Afterthat, the suspects and non-suspects were mixed, and witnesses wereasked to identify the Accused.

9. After the conclusion of the identification process for AccusedENos. 1-16, the non-suspects were asked to leave, and when the suspectswere alone, they were asked if they hadany complaints abouthow theTIP was conducted. It is alleged that all of them replied in the negative.However, when questioned if they had anything else to say, AccusedNo. 2, on behalf of all the accused, stated that,when the suspects wereFin police custody from 20.07.2000 to 22.07.2000, they were allphotographed and video-graphed and were also shown to all the sixwitnesses from the cabin of the IO (PW-84). All this is evident from the“Report of the Identification Parade of the 16 Accused Personsdated 31.07.2000”.G10.1 2[nd ]Test Identification Parade : In the previous TIP, sixwitnesses identified accused 1-16. But as mentioned earlier, AccusedNos. 17-19 were arrested after the completion of the 1[st] TIP. In thatview of the matter, permission to conduct the 2[nd] TIP was sought fromthe CJMbythe IO (PW-84)to facilitate the identification of the Accusedin three phases – (i) In the 1[st] Phase to identify Accused Nos. 17-19 byHthose very witnesses who identified Accused Nos. 1-16 in the 1[st] TIP

(PWs 1, 3, 4, 5, 6 and 7); (ii) In the 2[nd] Phase to identify Accused Nos.1-16 by PW’s 10, 11, 12 and 15; and (iii) In the 3[rd] Phase toidentifyAccused Nos. 1-19 by PW’s 8, 9 and 33.After receiving therequest from the IO (PW-84), the CJM granted permission and directedthe Judicial Magistrate (PW-47) to conduct the 2[nd] TIP. Accordingly,PW-47 decided to conduct the 2[nd] TIP on 26.08.2000. The conduct ofthe TIP in each of the phases is as under.

10.2 In the 1[st] Phase of this TIP, Accused Nos. 17-19,who wereto be identified, were mixed with sixteen under-trial non-suspects. Afterthe identification process culminated, Accused No.19, for himself andthe other two accused, stated that while they were in police custody,theywere shown to the six witnesses, PWs 1, 3, 4, 5, 6 and 7.Further, healso stated that they were all photographed and video-graphed and thatthey were allowed to be seen by all the witnesses when they were takento court for extending their remand.

10.3 In the 2[nd] Phase of the TIP, Accused Nos. 1-16 who were tobe identified were mixed with 45 non-suspects, with thirty-one of thembeing under-trials and the remaining being civilians. Thereafter, PWs 10,11, 12 and 15 proceeded with the identification.

10.4 In the 3[rd] Phase of the TIP, Accused Nos. 1-19 were to beidentified by PWs 8, 9 and 33. For identification, the Accused weremixed with the pre-existing 45 non-suspects. After the end of theidentification process,Accused No. 2, on behalf of others, stated thatwhen Accused Nos. 1-19 were taken to court for remand,and thepresence of all the witnesses was arranged in the court by the police.He reiteratedthat while they were in police custody,they werephotographed and video-graphed and were also made to be seen by allthe witnesses from the chamber/cabin of the IO (PW-84). All the Accusedcollectively stated that they were wearing the very same dress, straightfrom their arrest, till the date of the TIP. All this is evident from the“Report of the Identification Parade of the 19 Accused Personsdated 26.08.2000”.

11. Thus, it can be seen that from the very beginning, the Accusedhad objected tohow the TIP was conducted and the events preceding it,which inter-alia included – (i) the Accused being shown to the witnessesfrom the cabin of the IO (PW-84); (ii) the Accused being photographedand video-graphed while they were in police custody; (iii) securing thepresence of the witnesses in court while the accused were produced for AB

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Aextension of their remand; and (iv) the Accused wearing the same dressstraight from their arrest till the date of the TIP.

12. Upon completion of the investigation, including the TIP asindicated above, charge sheet was filed on 23.09.2000, and the casewas committed to the Court of Additional District and Sessions JudgeB(Fast-track Court – I), Thiruvananthapuram, on 27.10.2000.

13. Sessions Court and High Court:On 26.05.2005, the SessionsCourt framed charges under Sections 120B, 143, 147, 148, 324, 427,506, 302, 109 and 111 r/w 149 of the IPC and Sections 3(2)(e) of thePDPP Act against Accused Nos. 1-33. The prosecution examined 85Cwitnesses and marked 134 documents as exhibits. Thereafter, the defenceexamined 3 witnesses and marked 24documents as exhibits. After hearingthe matter in detail, the Sessions Court framed 12 points for consideration,which can be broadly classified into three issues(i) conspiracy hatchedby Accused Nos. 1-2 and 25-33; (ii) the murder of Rajesh; and (iii) thedestruction of KSRTC buses and other public properties.D

14. Re: Conspiracy hatched by Accused No. 1-2 and 25-33:To establish a conspiracy case against Accused Nos. 1-2 and 25-33,the prosecution examined PW-68 and PW-85. PW-68,who deposedbefore the court that he had overheard the conversation between theAccused hatching the conspiracy. PW-85, on the other hand, turnedEhostile. Therefore, based on the deposition of PW-68, the Sessions Courtconvicted Accused Nos. 1-2 and 25-33 under Sections 120B of the IPCr/w Section 3(2)(e) of the PDPP Act, Sections 109 and 111 of the IPC,and sentenced them to four years of imprisonment.In appeal, the HighCourtdisbelieved PW-68 and consequently set aside the conviction ofFAccused Nos. 1-2 and 25-33 under the abovementioned provisions. Thedecision of the High Court on the issue of conspiracy against AccusedNos. 1-2 and 25-33 has attained finality as the State has not preferredan appeal.

15. Re: Charge of the murder of Rajesh against Accused 17and 19: In so far as the issue relating to thecharge ofmurderof RajeshGagainst Accused Nos. 17 and 19is concerned; the prosecution reliedupon the evidence of PWs 5, 6 and 8.These witnesses deposed thatwhile Accused No. 17 beat Rajesh with an iron pipe, Accused No. 19beat him with a wooden reaper. Based on the deposition of PWs 5, 6and 8, the Sessions Court convicted Accused Nos. 17 and 19 underHSections 302 r/w 34 of the IPC for life. The High Court, in appeal, set

aside this conviction and instead found them guilty under Section 326 r/w 34 of the IPC and sentenced them to 7 years of rigorous imprisonment.The finding of the High Court on this issue has also attained finality asthe State has not appealed before this Court against the altered convictionand the reduced sentence. In fact, even Accused Nos. 17 and 19 havenot appealed since they had already served a sentence of seven years.

16. Given the findings of the Trial and the High Court on the issueof conspiracy and murder attaining finality, the only question that fallsfor consideration is the issue relating to the destruction of public property.In fact, this is the only question that was raised and argued before us.We will now proceed to examine this aspect in detail.

17. Re: Charge of the destruction of public property againstAccused Nos. 1-7, 9-12,14, 16 and 18 underSections 143, 147,148 of the IPC and Sections 3(2)(e) of the PDPP Act r/w Section149 of the IPC: To establish the charge of destruction of public property,the prosecution relied upon the evidence of PWs 5, 6, 8, 31 and 33, aseye-witnesses to the crime. To prove the presence of these witnesses,the prosecution had to necessarily rely on the TIP proceedings.Thedefence questioned the TIP on various grounds, among other things,thepresence of IO (PW-84) at the time of conducting the TIP, the accusedbeing photographed and video-graphed while they were in police custody,among others.

18. The Sessions Court rejected all the objections to the legalityand credibility of the TIP by holding that (i) the IO (PW-84) was justpresent and did not influence the TIP in any manner; (ii) the imbalancein the ratio between suspects and non-suspects in the TIP is not theJudicial Magistrate’s (PW-47) or the IO’s (PW-84) fault, because theytried their best to fetch more non-suspects; (iii) the IO (PW-84) tooksteps to prevent disclosure of identity of accused to witnesses beforethe TIP by covering the side of the vehicle in which they were broughtto the court for extension of remand, though, he also stated that he didnot put a mask on them; (iv) there is no material to show that photographsor video-graphs of the Accused were taken and shown to the witnessesprior to the TIP; and (v) even though PW-3 and PW-4 admitted in cross-examination before the Court that some of the accused were shown tothem before the TIP, during re-examination, both of them frankly admittedthat after the incident, they had seen the miscreants for the first timeduring the TIP.In view of its conclusions on the TIP, the Trial Courtproceeded to convict Accused Nos. 1-7, 9-12, 14, 16-19 under Sections AB

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A143, 147, 148 IPC and 3(2)(e) of PDPP Act r/w 149 of the IPC andsentenced them to four years of imprisonment.

19. The High Court has, while exercising criminal appellatejurisdiction, failed to consider any of the submissions made by theAppellants on the legality or the integrity of the TIP. The following passageBis the only discussion on this argument:

“43. ….. The Court below has made its finding regarding theoffencepunishable under Ss.143, 147 and 148 IPC andS.3(2)(e) of the PDPP Act,based on the identification of thevarious witnesses in court. The matter hasbeen dealt withelaborately by the Court below. It is idle for theappellants toCsay that there was no proper identification and so,it was notpossible to say, who had caused obstruction to theKSRTCbuses. Moreover, when a group of persons causedamage topublic properties, each one of that illegal group willbe heldliable for the acts of the other members in the groupalso.”DIn view of the above, the High Court upheld the conviction ofAccused Nos. 1-7, 9-12, 14, 16-19 under Sections 143, 147, 148 IPCand 3(2)(e) of PDPP Act r/w 149 of the IPC and also the sentence offour years imprisonment imposed upon them by the Sessions Court.Therefore, the learned counsel for the Appellants were justified incontending that the High Court has not considered the submissions ofEthe Appellants on law and on fact. The High Court, while exercisingcriminal appellate jurisdiction under Section 386 of the Code of CriminalProcedure, 1973, has to necessarily assess the evidence on record witha view to satisfy itself that the appreciation of evidence by the TrialCourt is not vitiated by any illegality and is not palpably erroneous. TheFdismissal of appeal without considering an appellant’s contention is aserious infirmity, which will result in no legal judgment in the eye of law[7].

20. Submissions of the Parties : Ms. Sonia Mathur, learned SeniorAdvocate appearing for Accused Nos. 1-7, 9, 14, 16 and 18, at the veryoutset,contended that the High Court has not rendered any independentGfinding on the issue of destruction of public property and has merelyreiterated what the Sessions Court had held.

21. Be that as it may, the central thrust of Ms. Mathur’s submissionwas on the manner in which the TIP was conducted. According to her,7 Sohan and Anr. v. State of Haryana and Anr. (2001) 3 SCC 620; State of Rajasthan v.Hanuman (2001) 1 SCC 337; Badri and Ors. v. State of Rajasthan (2000) 10 SCC 246.H

the TIP was of utmost importance, considering that this was a casewhere criminal liability was fastened only against a few protestors. Sheraised questions over the integrity of the TIP by contending that (i) theideal ratio of suspects to non-suspects as laid down by the Kerala HighCourt in Pradeepan v. State of Kerala[8], has not been followed; (ii) thepresence of IO (PW-84) in the premises of central jail during both theTIPs vitiates the TIP in its entirety; (iii) the IO (PW-47) in both the TIPsdid not record physical features, age etc. of the non-suspects. The learnedsenior counsel gave an example by stating that Accused No. 7 had along beard, but there were no non-suspects having a long beard; (iv) theIO (PW-84) has admitted that Accused Nos. 1-16 were in his custodywhen he questioned the eyewitnesses in his office; (v) PW-3 and PW-4have admitted that they had seen the Accused while they were at thePolice Station; (vi) PW-1, PW 8-12 and PW-33 have admitted that theyhad identified the Accused in the TIP based on the pictures they saw inthe newspaper; (vii) the Accused had complained that while they werein police custody, they were photographed and shown to the witnessesfrom the cabin of PW-84; (viii) Remand Report dated 14.07.2000 clearlystated that Accused Nos. 1-16 were shown to the eye-witnesses; (ix)there has been a delay in holding in the TIP which is fatal, in light of thedecision in AcharaparambathPradeepan and Anr.v. State of Kerala[9],Lal Singh andOrs. v. State of UP[10 ]and Shaikh Umar Ahmed Shaikhand Anr.v. State of Maharashtra[11]; and (x) no importance can be givento the identification made in the TIP when the same witness fails toidentify the same accused before the court. For this purpose, reliancewas placed on the judgement of this Court in Lallialias Jagdeep Singhv. State of Rajasthan[12].Independent of her submissions on the aspectof TIP, the learned senior advocate also relied upon the decision of theDelhi High Court in Capitol Art House (P) Ltd v. Neha Datta[13], whereit was held that re-examination of witnesses should not be allowed,especially to facilitate them to rectify their mistakes. This submissionwas made in the context of PW-3 and PW-4s contradictory statementsmade in the chiefexamination and the re-examination.

8 (2005) 3 KLT 1075.

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A22. Shri Vinay Navare, learned Senior Advocate appearing forAccused Nos. 10-12 contended that the statements given by PW-5, PW-6 and PW-8 could not form the basis of conviction because (i) PW-5 hadstated in his deposition that he was not present at the time of the incidentand that he reached the place of occurrence only after the incident; (ii)PW-6 could only identify Accused Nos. 17 and 19 and could generallyBidentify the other accused as the agitators; (iii)PW-8 had stated in hisdeposition that he identified the Accused on the basis of the images hesaw in a newspaper.

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23. Shri Navare also raised questions over how the TIP wasconducted by submitting that (i) the purpose of conducting a TIP failsCwhen pictures of the accused are published in newspapers. He reliedupon the decision of this Court in Ravi alias Ravichandran v. Staterepresented by Inspector of Police[14],where this Court had held that noimportance could be attached to a TIP where the photos of the allegedsuspects were making rounds in newspapers and also when the witnessesDhad a chance to look at the accused while the accusedwere in policecustody. Additionally, he also placed reliance on the judgement of thisCourt in Shaikh Umar Ahmed Shaikh and Anr.v. State of Maharashtra(supra) to bolster his submission on the same point; (ii) the ratio ofsuspects to non-suspects was improper in the 1[st] TIP; (iii) the IO (PW-84) was present in the hall where both the TIPs took place; (iv) thereEwas a delay of over one month between the date of the incident and thedates of the TIP, which facilitated the investigation officer to acclimatisethe witnesses to the way the Accused’s look. He relied upon the decisionof this Court in Suresh ChandraBahri v. State of Bihar[15 ]where it hasbeen held that a TIP has to be conducted at the earliest possibleFopportunity; and (v) the identification made by PW-5, PW-6 and PW-8are of no consequence as they are not an independent witness.

24. Shri Harshad V. Hameed, learned counsel appearing for theState, countered the submissions made regarding the conduct of the TIPby contending that – (i) the decision in Pradeepan v. State of Kerala[16],is not binding. The same were mere guidelines which could be adjustedGbased on the facts and circumstances of a case. Reliance was alsoplaced on the decision of the Kerala High Court in Mohanan Nair v.

14 (2007) 15 SCC 37215 (1995) Supp 1 SCC 8016 Supra No.8

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State of Kerala[17], to support the same point; (ii) a TIP can be acceptedas a piece of evidence based on the subjective satisfaction of a court,which has occurred in this case; (iii) if there were concerns about themanner in which the TIP was conducted, then the TIP itself should havebeen challenged. In that view of the matter, it was submitted that whenit has not been challenged, then under Section 80 of the Indian EvidenceAct, 1872, a presumption arises that the TIP Report is a valid proof ofevidence; (iv) the JFMC (PW-47) took every measure within his reachto ensure smooth conduct of the TIP; (v) the IO (PW-84) took all possiblemeasures to ensure that the TIP is conducted at the earliest possibleopportunity; (vi) reliance was placed on the decision of this Court in thecase of Munna Kumar Upadhyay v. State of Andhra Pradesh[18], whereit was held that if pictures of the suspects were circulated in newspapersmonths before the TIP is conducted, then the circulation would have lostits effect on the minds of the witnesses; (vii) the Sessions Court has onlyconvicted those accused, who were identified both before the Court aswell as in the TIP. The testimony of these eyewitnesses never sufferedfrom any infirmities; and (viii) the evidence of PW-5, PW-6 and PW-8,which was relied upon by the Trial Court, was not biased.

25. Analysis : Heard the learned counsel for the parties and perusedthe case records. We may, at the outset, note that the eyewitnessesquestioned by the prosecution did not give out the names or identities ofthe Accused participating in the riot and involved in the destruction ofpublic property. Therefore, the IO (PW-84) had to necessarily conductaTIP. The object of conducting a TIP is threefold. First, to enable thewitnesses to satisfy themselves that the accused whom they suspect isreally the one who was seen by them in connection with the crime.Second, to satisfy the investigating authorities that the suspect is thereal person whom the witnesses had seen in connection with the saidoccurrence. Third, to test the witnesses’ memory based on firstimpression and enable the prosecution to decide whether all or any ofthem could be cited as eyewitnesses to the crime (Mulla and Anr. v. Stateof U.P.[19]).

26. TIPs belong to the stage of investigation by the police. It assuresthat investigation is proceeding in the right direction. It is a rule ofprudence which is required to be followed in cases where the accused is 17 (1989) Cr.L.J. 2106 (Ker)18 (2012) 6 SCC 17419 (2010) 3 SCC 508 (Paras 44, 45 and 55)

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Anot known to the witness or the complainant (Matrualias GirishChandra v. State of U.P.[20]; Mulla and Anr. v. State of U.P.[21 ]and C.Muniappanand Ors. v. State of Tamil Nadu[22]). The evidence of a TIPis admissible under Section 9 of the Indian Evidence Act. However, it isnot a substantive piece of evidence. Instead, it is used to corroborate theevidence given by witnesses before a court of law at the time of trial.BTherefore, TIPs, even if held, cannot be considered in all the cases astrustworthy evidence on which the conviction of an accused can besustained (State of H.P. v. Lekh Raj and Anr.[23]; and C. MuniappanandOrsv. State of T.N.[24]).

27. It is a matter of great importance both for the investigatingCagency and for the accused and a fortiori for the proper administrationof justice that a TIP is held without avoidable and unreasonable delayafter the arrest of the accused. This becomes necessary to eliminate thepossibility of the accused being shown to the witnesses before the testidentification parade. This is a very common plea of the accused, andtherefore, the prosecution has to be cautious to ensure that there is noDscope for making such an allegation. If, however, circumstances arebeyond control and there is some delay, it cannot be said to be fatal tothe prosecution. But reasons should be given as to why there was adelay (Mulla and Anr. v. State of U.P.[25 ]and Suresh Chandra Bahri v.State of Bihar[26]).

28. In cases where the witnesses have had ample opportunity toEsee the accused before the identification parade is held, it may adverselyaffect the trial. It is the duty of the prosecution toestablish before thecourt 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,Fbe it in any form, i.e., physically, through photographs or via media(newspapers, television etc…), the evidence of the TIP is not admissibleas a valid piece of evidence (Lal Singh and Orsv. State of U.P.[27]andSuryamoorthi and Anr.v.Govindaswamy and Ors.[28]).

20 (1971) 2 SCC 75 (Para 17)G21 Supra No.19 (Paras 41 and 43).22 (2010) 9 SCC 567 (Para 42)23 (2000) 1 SCC 247 (Para 3)24 Supra No. 22 (Para 42)25 Supra No.19 (Para 45)26 Supra No.15

27 Supra No.10H28 (1989) 3 SCC 24

29. If identification in the TIP has taken place after the accused isshown to the witnesses, then not only is the evidence of TIP inadmissible,even an identification in a court during trial is meaningless(Shaikh UmarAhmed Shaikh and Anr.v. State of Maharashtra[29]). Even a TIPconducted in the presence of a police officer is inadmissible in light ofSection 162 of the Code of Criminal Procedure, 1973 (Chunthuramv.State of Chhattisgarh[30] and Ramkishan Mithanlal Sharma v. Stateof Bombay[31]).

30. It is significant to maintain a healthy ratio between suspectsand non-suspects during a TIP. If rules to that effect are provided inPrison Manuals or if an appropriate authority has issued guidelinesregarding the ratio to be maintained, then such rules/guidelines shall befollowed. The officer conducting the TIP is under a compelling obligationto mandatorily maintain the prescribed ratio.While conducting a TIP, it isa sine-qua-non that the non-suspects should be of the same age-groupand should also have similar physical features (size, weight, color, beard,scars, marks, bodily injuries etc.) to that of the suspects. The concernedofficer overseeing the TIP should also record such physical featuresbefore commencing the TIP proceeding. This gives credibility to the TIPand ensures that the TIP is not just an empty formality(Rajesh GovindJageshav. State of Maharashtra[32] and Ravi v. State[33]).

31. It is for the prosecution to prove that a TIP was conducted ina fair manner and that all necessary measures and precautions weretaken before conducting the TIP. Thus, the burden is not on the defence.Instead, it is on the prosecution (Rajesh Govind Jageshav. State ofMaharashtra[34]).

32. We will now consider the three major contentions raised bythe Appellants before us, being (i) the credibility of the eye-witnesseswho participated in the TIP to identify the accused; (ii) delay in conductingthe TIP; and(iii) legality of the TIP and the presence of the IO during theconduct of the TIP.We will now consider each of these submissions.

29 Supra No.1130 (2020) 10 SCC 733

31 (1955) 1 SCR 903

32 (1999) 8 SCC 428

34 Supra No.32 (Para 4)

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A33. Re : Credibility of the eyewitnesses who participated inthe TIP to identify the accused:

34. PW-3, in his deposition before the Sessions Court, stated that:“Prior to the date of identification parade, I had been tothe CrimeBranch office on different days.

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(Q).Were there 10-18 accused at time of firstparade.

(A). So many people were there.

(Q). Were some of the accused shown toyou from thecrimebranch office C

(A). They were shown

(Q). Were some more ofthe accused were shown to you beforegoing to the 2[nd]parade (A). Yes”

D35. PW-4, in his deposition before the Sessions Court, has stated that:

“I went to Crime Branch office for giving statement. Thatwas 8-10 days prior to the first parade.

E(Q). When you went there to give your next statement did theyshow you some of the accused (A). They were there (Q). After the first parade I have given statement tothe CrimeBranch. That was before 2[nd] parade. Did they show you theFaccused atthat time (A). They were there. Thus, those persons I saw or shown tome were identified at the time of parade.”

36. Both these witnesses, during their re-examination,have,however,contradicted themselves by stating that they saw theGAccused for the first time during the TIP.

37. In so far as PW-5 is concerned, his presence at the scene ofthe offence and seeing the Accused committing the offence is in seriousdoubt. During his cross-examination, he stated that “(Q). Did you go and see the place of incident.

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(A) I went there at the place of occurrence after the incident.Then I saw three employees. Altogether, there were 10-20persons including who stood outside the office and at theplace of occurrence.

(Q). Did you ask them about the incident.

(A) No.

(Q). Did you reach there only after accused left the place.

(A). Yes”

38. PW-6, whose evidence has been relied upon by the prosecution,has also stated that he had visited the crime branch office eleven daysprior to the 1[st] TIP, i.e., on 20.07.2000. This date coincided with the datewhen the Accused were also taken into police custody.On the otherhand, PW-8, whose evidence has also been relied upon by theprosecution, has stated in his deposition that he identified the Accused inthe TIP based on the pictures published in a newspaper.

39. PW-31, an employee of KSRTC, has deposed only on thefinancial loss caused to KSRTC because of the destruction. His depositionis not helpful to fasten any liability on the Accused.

40. The last witness relied upon by the prosecution to prove thecharge of destruction of public property was PW-33. However, thiswitness turned hostile. Therefore, his deposition takes us nowhere.

41. Proceeding to the deposition of the Judicial Magistrate (PW-47),he was asked, if before commencing the parade, he hadasked anyof the witnesses whether they had any prior acquaintance with thesuspects or non-suspects or whether the suspects or non-suspects wereshown to them by the IO (PW-84). PW-47 stated that he did not ask anysuch question to the suspects before commencing the parade. However,he said that he asked the suspects at the end of the parade if they hadany objection to the manner in which the TIP was conducted. It may berecounted that Accused No. 2 had objected that they were shown to thewitnesses while they were in police custody.

42. This Court in Budhsenand Anr. v. State of UP[35], had directedthat sufficient precautions have to be taken to ensure that the witnesses A

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Awho are to participate in the TIP do not have an opportunity to see theaccused before the TIP is conducted. In Lal Singh v. State of U.P.[36],this Court had held that a trial would be adversely affected when thewitnesses have had ample opportunity to see the accused before theidentification parade is held. It was held that the prosecution should takeprecautions and establish before the court that right from the day of hisBarrest, the accused was kept “baparda” to rule out the possibility of hisface being seen while in police custody.Later, in Lalli v. State ofRajasthan[37]and Maya Kaur Baldevsingh Sardar and Anr. v. Stateof Maharashtra[38], this Court has categorically held that where theaccused has been shown to the witness or even his photograph has beenCshown by the investigating officer prior to a TIP, holding an identificationparade in such facts and circumstances remains inconsequential. Anothercrucial decision was rendered by this Court in Shaikh Umar AhmedShaikh and Anr.v. State of Maharashtra[39], where it was held:

“8. …. But, the question arises: what value could be attachedDto the evidence of identity of accused by the witnesses in theCourt when the accused were possibly shown to the witnessesbefore the identification parade in the police station. TheDesignated Court has already recorded a finding that therewas strong possibility that the suspects were shown to thewitnesses. Under such circumstances, when the accused wereEalready shown to the witnesses, their identification in theCourt by the witnesses was meaningless. The statement ofwitnesses in the Court identifying the accused in the Courtlost all its value and could not be made the basis for recordingconviction against the accused. The reliance of evidence ofFidentification of the accused in the Court by PW 2 and PW 11by the Designated Court, was an erroneous way of dealingwith the evidence of identification of the accused in the Courtby the two eyewitnesses and had caused failure of justice.Since conviction of the appellants have been recorded by theDesignated Court on wholly unreliable evidence, the sameGdeserves to be set aside.”

37 Supra No.1238 (2007) 12 SCC 65439 Supra No.11H

GIREESAN NAIR & ORS. ETC. v. STATE OF KERALA[PAMIDIGHANTAM SRI NARASIMHA, J. ]

43. In so far as evidence of PW-8 is concerned, who has statedthat he identified the accused in the TIP based on pictures published innewspapers, the position of law is clear.This Court in Suryamoorthiv.Govindaswamy[40], has held as follows:

“10. Two identification parades were held in the course ofinvestigation. At the first identification parade PW 1 identifiedall the seven accused persons whereas PW 2 identified threeof them, namely, Accused 2, 6 and 7 alone. It is, however, inevidence that before the identification parades were held thephotographs of the accused persons had appeared in the localdaily newspapers. Besides, the accused persons were in thelock-up for a few days before the identification parades wereheld and therefore the possibility of their having been shownto the witnesses cannot be ruled out altogether. We do not,therefore, attach much importance to the identification made”at the identification parades.

Reiterating the same principle, this Court in Ravi v. State[41], hasagain reaffirmed the aforesaid position by holding as follows:

“17. Certain facts are not in dispute. The test identificationparade was held after ten days. It is also not in dispute thatthe photographs of the accused were taken at the policestation. The investigation officer allowed them to be published.Photographs of the appellant and the said Udayakumar werenot only published, according to the prosecution witnesses,they were shown to be the accused in the aforementioned crime.Some of them admittedly were aware of the said publication.The purported test identification parade which was held tendays thereafter, in our opinion, looses all significance, in theaforementioned fact situation.

19. In a case of this nature, it was incumbent upon theprosecution to arrange a test identification parade. Such testidentification parade was required to be held as early aspossible so as to exclude the possibility of the accused beingidentified either at the police station or at some other placeby the witnesses concerned or with reference to thephotographs published in the newspaper. A conviction shouldnot be based on a vague identification.”

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A44. Having considered the evidence of crucial eye-witnesses andthe material indicating the conduct of the TIP, we are of the opinion thatthe witnesses had the opportunity of seeing the accused before theconduct of the TIP. Not only have the witnesses deposed that they hadseen the suspects before the TIP, even Accused No. 2, at the end of the1[st] TIP, had raised a grievance that the suspects were all photographed,Bvideo-graphed and were shown to the witnesses from the cabin of theIO (PW-84). At the end of the 2[nd ]TIP, he had also stated that whenAccused Nos. 1-19 were taken to court for the purpose of remand, andthe presence of all the witnesses was arranged in the court by the police.Infact, all the Accused collectively stated that they were wearing the veryCsame dress, straight from their arrest, till the date of the TIP to indicatethat the TIP did not serve its purpose. We find no reason to disbelievethe truthfulness of the statement of the Accused because they had raisedthis contention right from the beginning and have maintained it all along.

45. In view of the above, we are of the opinion that there existedDno useful purpose behind conducting the TIP. The TIP was a mereformality, and no value could be attached to it. As the only evidence forconvicting the appellants is the evidence of the eye-witnesses in the TIP,and when the TIP is vitiated, the conviction cannot be upheld. We willnow examine the other lapses while conducting the TIPs.

E46. Re: Delay in conducting the TIP : Undue delay in conductinga TIP has a serious bearing on the credibility of the identification process.Though there is no fixed timeline within which the TIP must be conductedand the consequence of the delay woulddepend upon the facts andcircumstances of the case[42], it is imperative to hold the TIP at the earliest.The possibility of the TIP witnesses seeing the accused is sufficient toFcast doubt about their credibility. The following decisions of this Courton the consequence of delay in conducting TIP have emphasised thatthe possibility of witnesses seeing the accused by itself can be a decisivefactor for rejecting the TIP. In Suresh Chandra Bahri v. State ofBihar[43], it was held that:G“It is a matter of great importance both for the investigatingagency and for the accused and a fortiori for the properadministration of justice that such identification is held withoutavoidable and unreasonable delay after the arrest of the 42 Supra No.9H43 Supra No.15

accused and that all the necessary precautions andsafeguards were effectively taken so that the investigationproceeds on correct lines for punishing the real culprit. It isin adopting this course alone that justice and fair play canbe assured both to the accused as well as to the prosecution.But the position may be different when the accused or a culpritwho stands trial had been seen not once but for quite a numberof times at different point of time and places which fact maydo away with the necessity of a TIP.”

47. In Budhsen & Anr. v. State of UP [44], this Court set aside theconviction imposed on the appellant therein, on the ground that noconviction can be based by solely relying on the identification made in aTIP. While holding that a 14-day delay by itself in conducting the TIPmay not cause prejudice to the accused, it observed that there is a highchance of accused being seen by the identifying witnesses outside thejail premises. In Subash and Shiv Shankar v. State of U.P.[45], this Courtacquitted an accused on the ground that the TIP was held three weeksafter the arrest was made. This Court suspected that the delay in holdingthe TIP could have enabled the identifying witnesses to see the accusedtherein in the police lock-up or in the jail premises. In State of A.P. v. DrM.V. Ramana Reddy and Ors.[46],this Court acquitted respondent nos. 2and 3 therein on the ground that there was a delay of 10 days in conductingthe TIP, and in those 10 days, there was a high likelihood of theirphotographs being shown to the witnesses. In Rajesh Govind Jageshav.State of Maharashtra[47],a delay of about one month was viewed seriouslyby this Court since there was a possibility of the accused being shown tothe witnesses.

48. Returning to the facts of the present case, we have alreadynoted that Accused Nos. 1-16 were arrested on 13.07.2000. Instead offiling an application for conducting a TIP at the earliest, the IO (PW-84)filed aremand application, pursuant to which the Accused were remandedto police custody. There is strong evidence that the Accused were shownto the witnesses during their police custody period. The fact that anapplication for conducting a TIP was filed on 23.07.2000, i.e., the very

45 (1987) 3 SCC 331

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Anext day after the police custody period ended, leads to the inevitableconclusion that the Accused were taken into police custody to facilitatetheir easy identification during the TIP. Otherwise, we see no reasonwhy an application for conducting a TIP was not filed immediately afterthe arrest of the Accused. In such circumstances, we firmly believe thatthe delay in holding the TIP coupled with other circumstances has cast aBserious doubt on the credibility of the TIP witnesses.

49. Re: Legality of the TIP and the presence of the IO duringthe conduct ofthe TIP:A three-judge bench of this Court inChunthuramv. State of Chhattisgarh[48], by relying on RamkishanMithanlal Sharma v. State of Bombay[49], has held that any identificationCmade by witnesses in a TIP in the presence of a police officer tantamountto statements made to the police officer under Section 162 Cr.P.C. TheCourt held:

“The infirmities in the conduct of the test identification paradewould next bear scrutiny. The major flaw in the exercise hereDwas the presence of the police during the exercise. When theidentifications are held in police presence, the resultantcommunications tantamount to statements made by theidentifiers to a police officer in course of investigation andthey fall within the ban of Section 162 of the Code.”

E50. The evidence of IO (PW-84) about the conduct of the TestIdentification Parade may be noted: - “(Q). Did you make any arrangement to prevent the witnessand the accused from seeing each other inside the jail?

F(A). I did not think it as something needed.”

51. Further, when a question regarding the presence of the IO(PW-84) was put to JMFC (PW-47), he stated that:

“...in the parade conducted on 31.07.2000, 31 non-suspectswere selected. The civilian were produced by the IO. On thatGdate also Dy. SP and CI were present in the premises of the”jail……

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49 Supra No. 31

52. With respect to the 2[nd] TIP conducted on 26.08.2000, the JMFC(PW-47) statedthat:

“On 26.08.2000 Dy. SP S.P. Joshwa was also present in thecentral prison”.

53. Having considered the statement of the JMFC (PW-47) andthe evidence of the IO (PW-84) together, we are of the view that thepresence of the Investigating Officer at the time of the TIP cannot beruled out. The Investigating Officer has stated that he has not taken anysteps to ensure that the accused and the witnesses do not see eachother. It is rather surprising to note that Investigating Officer thinks thatsuch a measure is not necessary.

54. In this very context, we may also note the first TIP reportdated 31.07.2000 made by the JMFC (PW-47). The Magistrate recordedthat the Accused had raised concerns over the manner in which the TIPwas conducted. The relevant portion of the TIP report is noted hereunder:

“21.Thereafter when the suspects alone were left in the hall,they were asked, whether they have got any complaints, as tothe manner of the conduct of the parade. All of them repliedin the negative. When questioned, whether they have gotanything else to say, they unanimously asked Mr. Padma Kumar(A2) to state something. He then said that when the suspectswere in Police custody, they were all, photographed andvideographed and were also shown to all the 6 witness, whoare made to identify them in the parade, from the cabin of theDy. SP. Mr. Joshwa.”

55. Even the report of the second TIP dated 26.08.2000 asrecorded by the JMFC (PW-47) notes as hereunder:

“22. When the accused persons along were left in the hall,they were questioned, my whether they have got any complaintregarding the manner of the conduct of the parade. They allreplied in the negative. When queried further, whether theyhave got anything else to say all of them wanted the secondaccused Padma Kumar to make some comments.Thereupon,the second accused stated that accused Nos. 1 to 16 were,before their production in court, in police custody for threedays; that accused nos. 17 to 19 were similarly in police A

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Acustody for 6 days; that when all the 19 were taken to thecourt on 24 and 25.8.2000 presence of all the witnesses inthe court were arranged by the Police, so as to enable themto see all the accused persons; and that while in Police custodyall of them were photographed and videographed and werealso made to be seen by all the witnesses, from the chamberBof Deputy Superintendent Of Police, the investigating officer.All the accused had also stated that they were wearing thevery same dress, straight from their arrest till date.”

56. In view of the evidence available on record, we are of theopinion that the conduct of the TIP, coupled with the hovering presenceCof the police during the conduct of the TIP vitiated the entire process.The Trial Court as well as the High Court have committed a seriouserror in relying on the evidence of the TIP witnesses for convicting andsentencing the Appellants. We are of the opinion that the conviction andsentencing are not sustainable. In view of these lapses on the part of theDprosecution, it is not necessary for us to consider various other groundsraised by the Appellants.

57. Conclusion : Having considered the matter in detail and havingnoted the various discrepancies in the manner in which both the TIPswere conducted, we believe that the prosecution has not established itsEcase beyond reasonable doubt. Apart from the TIPs, we find no otherevidence put forth by the prosecution to prove the guilt of the Accusedfor offences under Sections 143, 147, 148 IPC and 3(2)(e) of PDPP Actr/w 149 of the IPC.

58. For the reasons stated above, and in conclusion, we: -

Fi.Allow Criminal Appeal Nos. 1864-1865 of 2010 arising outof the judgment of the High Court of Kerala in CriminalAppeal Nos. 384 and 385 of 2006, and ii.Set aside the conviction and sentence of the Appellants underthe judgment of the High Court of Kerala in Criminal AppealGNos. 384 and 385 of 2006 dated 14.01.2010 and the judgmentof the Court of Additional District and Sessions Judge (Fast-track Court – I), Thiruvananthapuram in Sessions Case Nos.302 of 2001, 1786 of 2001 and 1313 of 2002 dated15.02.2006 under Sections 143, 147, 148 IPC and 3(2)(e)

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of Prevention of Damages to Public Property Act, 1984r/w Section149 of the IPC.

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iii.The Appellants are acquitted of all the charges, and theirbail bonds, if any, stand discharged.Pending interlocutoryapplications, if any, stand disposed of in terms of the aboveorder.B

iv.Parties shall bear their own cost.

Nidhi Jain(Assisted by : Shubhanshu Das, LCRA)

Appeals allowed.

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