N Criminal Appeal No 194 of 1979
From the Judgment and Order dated 471978 of the Andhra Pradesh High Court in Crl
A No 576 of 1977
K Madhava Reddy and G Narasimhulu for the Appellants
B Parthasarthi for the Respondent
The Judgment of the Court was delivered by FATHIMA BEEVI J
The appellants are Bollavaram Pedda Narsi Reddy A 1 Bollavaram Chinna Narsi Reddy A 2 Kavalakuntla Rama Subba Reddy A 3 Duddula Venkata Subba Reddy A 5 and Mala Prakasam A 6 before this Court
These appellants along with accused No 4 Duddela Ramana Reddy were tried for the 726 murder of one Chandrasekhara Reddy on the night of August 15 1974
The trial court acquitted all the accused
On appeal by the State the High Court convicted these appellants under sections 302 read with 149 IPC and sentenced them to undergo imprisonment for life and also imposed short term imprisonment for minor offence to run concurrently
Chandrasekhara Reddy the deceased and the accused were residents of village Jeereddy Kotharpallai
In 1970 Accused No 3 was elected as a Sarpanch of the village with active support of the deceased
However differences arose between them as they supported rival groups in the election in the neighbouring village
10 days before the incident the deceased is stated to have openly declared that he would get Accused 3 removed by moving a no confidence motion
This according to the prosecution is the motive for the crime
On the date of occurrence Chandrasekhara Reddy met PW 1 Guddeti Balaveera Reddy and PW 2 Donthireddi Subba Reddy in the hotel of Subbamma PW 8 in the neighbouring village Proddatur
The deceased along with the two witnesses attended a cinema show at Anwar Talkies
They came out of the theatre 10 minutes earlier around 930 PM and were walking along the road towards the bus stand
When they reached near the old telephone exchange about 50 metres away from Anwar Talkies there was an explosion of crackers
The accused persons suddenly surrounded the deceased
They were armed with daggers
They attacked him after one of them pushing aside PW 1
PW 1 fell on the barbed wire fence of the transformer and received scratches on his thigh
The deceased was stabbed indiscriminately and simultaneously by all the assailants who retreated in two different directions and the deceased died on the spot instantaneously
Besides PWs 1 and 2 who witnessed the occurrence PW 3 Donthireddi Narayana Reddy and PW 4 Poreddi Subba Reddy
had also seen the attack
These witnesses were passing along the road
PW 5 Mekkamalla Balireddi reached the scene attracted by the crowd and had seen the accused persons running away
The street light besides the electric light at a petrol bunk and the light in the bunk on the side of the road were burning at the time of the occurrence
The assailants had been identified by the witnesses in that light
The assailants were strangers to the PWs 1 and 2 but A 2 3 and 5 were known to PWs 3 and 4 and 5 who had also acquaintance with the deceased PW 5 informed PW 7 Polagiri Siva Reddy the brother of the deceased about the occurrence while PWs 3 and 4 left the place after seeing the deceased lying at the scene
This in short is the prosecution case
727 The Town Police Station is situated about two furlongs away from the place of occurrence
PW 1 along with PW 2 went to the police station and lodged the first information report
A crime ws registered against six unidentified persons
PW 16 Sri section Khasim Sab Sub Inspector of Police recorded the statement exhibit P 1
The Circle Inspector visited the scene
PW 2 was referred to the Medical Officer at 4 AM
The inquest on the dead body was held on the next morning
The post mortem examination revealed that deceased had sustained 54 injuries all except one being incised wounds
At the time of the inquest the statements of PWs 2 and 7 were recorded
PW 7 suspected the involvement of Accused 2 3 and 5
On 1781974 the police dogs were pressed into service
It is stated that the sniffer went to the village of the deceased and thereafter to the houses of Accused 2 and 3
Statements of PWs 3 4 and 5 were recorded on 1881974
Accused No 6 was arrested on 2591974
A test identification parade was conducted by PW 9 Sri GV Raghavaiah Judicial Second Class Magistrate on 31101974
A 6 was identified by PWs 1 2 3 and 4 at the parade as recorded in exhibit P 2 proceeding
The other accused persons were arrested on 1111974
PW 10 Sri D Sreeramulu Judicial Second Class Magistrate conducted the test identification parade in which as per exhibit P 3 proceeding PWs 1and 2 identified accused 1 2 3 and 5
The investigation was completed and the charge was laid against the six persons
The learned sessions judge analysed the prosecution evidence meticulously and discarded the testimony of PWs 1 to 5
He considered PWs 3 4 and 5 as chance witnesses found their conduct in not disclosing the involvement of the accused persons known to them until their statements were recorded on 1881974 as suspicious and strange when they had acquaintance with the deceased
PWs 3 and 4 when examined by PWs 9 and 10 for the purpose of test identification parade had given statement which vary with their earlier statement and their evidence before court was contradictory to their prior statements
It was doubtful whether they could have seen the occurrence or identified any of the assailants
Their evidence was therefore rejected as untrustworthy
The testimony of the two eye witnesses PWs 1 and 2 who claimed that they were in the company of the deceased at the time of the occurrence was also not accepted by the trial court for various reasons
They were strangers to the accused persons
Their evidence regarding the identification of the assailants as the accused did not impress the trial court which pointed out that the prosecution had no consistent case regarding the source of light at the scene that these witnesses even if present at the scene when the assailants mounted the 728 attack on the deceased could not have remained there to observe and memorize the features of the assailants and identify them after a long lapse of time
PW 1 rushed to the police station in utter confusion even without his dhoti
The witnesses were frightened and ran away
In this situation in the meagre light available they could not have identified the assailants as the accused
The learned judge on a consideration of the medical evidence was also of the view that the occurrence could not have happened at the time mentioned by these witnesses and said there were several suspicious features which render their version doubtful
The learned judge also pointed out that the identification parade was perfunctory and was of no assistance to the prosecution
The learned sessions judge analysed the entire evidence and considered it unsafe to accept the testimony of the two witnesses to record a conviction
In that view of the matter he acquitted all the accused persons
The High Court considered the reasoning as perverse and on a reappraisal of the evidence took a contrary view
In the opinion of the High Court PWs 1 to 4 are truthful witnesses and their evidence could be accepted
In its view there was no serious infirmity in the prosecution evidence
Accordingly the High Court accepted the testimony of PWs 1 and 2 corroborated by the evidence of test identification parade and the testimony of PWs 3 and 4 to find the appellants guilty
Since accused No4 was not identified by PWs 1 to 4 he was given the benefit of doubt and his acquittal was confirmed
The learned counsel for the appellants has taken us through the entire evidence in the case
The appeal is one under Section 2 of the 
It is no doubt open to this Court to re examine the evidence for the purpose of satisfying itself whether the High Court was justified in reversing the order of acquittal in the facts and circumstances of the case
It is well settled proposition of law that in an appeal against acquittal the Appellate Court is empowered to evaluate the evidence and arrive at its own conclusion
It is equally settled law that where the view taken by the trial court or an appreciation of the evidence is also a plausible view the Appellate Court shall be slow to interfere with it even when a different view is possible on a reappraisal of the evidence
The learned counsel for the appellants pointed out that the High Court in reversing the order of acquittal in this case had departed from these established principles and had thus erred grievously in convicting the appellants
It was submitted that the conviction recorded by the High Court essentially rests on the testimony of PWs 1 and 2
When the 729 serious infirmities in the evidence of the other two eye witnesses PWs 3 and 4 had been brought to the notice of the High Court it has eschewed that evidence and has placed reliance only on the testimony of PWs 1 and 2 in arriving at the conclusion that the appellants are guilty of the offence
The appellants  learned counsel therefore contended that if the view taken by the trial court on the testimony of PWs 1 and 2 cannot be characterised as perverse or wholly unreasonable there is no justification for the High Court to accept that evidence as the basis of a conviction even if in its opinion the evidence of these two witnesses could have been relied on
The main plank of the argument of the learned counsel is that the witnesses being strangers to the assailants when there are circumstances to show that they did not have the opportunity to identify the assailants their evidence involving these appellants is not free from doubt and therefore the trial court had taken the reasonable view that it is unsafe for the court to accept that evidence to convict the accused persons
We see considerable force in the contention of the learned counsel for the appellants
The evidence given by the witnesses before the court is the substantive evidence
In a case where the witness is a stranger to the accused and he identifies the accused person before the court for the first time the court will not ordinarily accept that identification as conclusive
It is to lend assurance to the testimony of the witnesses that evidence in the form of an earlier identification is tendered
If the accused persons are got identified by the witness soon after their arrest and such identification does not suffer from any infirmity that circumstance lends corroboration to the evidence given by the witness before the court
But in a case where the evidence before the court is itself shaky the identification before the magistrate would be of no assistance to the prosecution In the present case the appellants are admittedly persons with whom the two witnesses had no previous acquaintance
The occurrence happened on a dark night
When the crime was committed during the hours of darkness and the assailants are utter strangers to the witnesses the identification of the accused persons assumes great importance
The prevailing light is a matter of crucial significance
The necessity to have the suspects identified by the witnesses soonafter their arrest also arises
According to the prosecution the attack on the deceased was sudden and simultaneous and the assailants slipped away in no time
Both PWs 1 and 2 had deposed that they were attracted by the explosion and when they turned back the assailants surrounded the deceased and inflicted the stab injuries
PW 1 was pushed aside
730 He fell on the fence of the barbed wire of the transformer received scratches
His dhoti stuck to the wire
He left it there and ran to the police station in utter confusion
His P 1 does not disclose that PW 2 accompanied him though PWs 1 and 2 stated before court that they went together
The possibility of the companions of the deceased having been scattered and gone in different directions cannot be ruled out
Even in Ex
P 1 statement what PW 1 said is that six persons attacked the deceased they were villagers they were wearing dhoti and kurta
One was about 45 years of age and of dark complexion another was 30 years of age lean and yet another was also a lean person
These may be the vague impression the witness had on seeing the assailants suddenly
It is not however in evidence that the description given by PW 1 in exhibit p 1 fits in with the description of any one of the appellants
When the magistrates recorded the statements of the witnesses they could not give any characteristic feature of any one of the assailants
The entire case depends on the identification of the appellants and the identification is founded solely on the test identification parades
Therefore in the absence of cogent evidence that PWs 1 and 2 by reason of the visibility of the light at the place of occurrence and proximity to the assailants had a clear vision of the action of each one of the accused persons in order that their features could get impressed in their mind to enable them to recollect the same and identify the assailants even after a long lapse of time it would be hazardous to draw the inference that the appellants are the real assailants
There is no whisper in exhibit P 1 that there was some source of light at the scene
The omission cannot be ignored as insignificant
When the Investigating Officer has visited the scene he made reference to the street lights petrol bunk light etc
Whether the street lights and the petrol bunk light had been burning at the time of the occurence and the spot where the incidence happened was so located as to receive the light emanating from these sources are required to be made out by the prosecution
When this significant fact is left out in the earliest record the improvement in the course of the investigation and trial could be of no avail
The fact that there had been no proof regarding the identity of the assailants until 1881974 would suggest that even persons who collected at the scene in the course of the incidence or soon thereafter were not in a position to identify any one of the assailants
Since the Investigating Officer arrived at the scene the same night and the inquest ws held in the next morning it would have been possible for the investigating agency to collect information regarding the identity of the assailants earlier to 1881974 if they had been really identified by any one of the witnesses examined in the case
When no natural 731 light was available and the street light was at a distance it is unlikely that the eye witnesses by momentary glance of the assailants who surrounded the victim had a lasting impression and the chance of identifying the assailants without mistake
The credibility of the evidence relating to the identification depends largely on the opportunity the witness had to observe the assailants when the crime was committed and memorize the impression
This aspect of the matter had been stressed by the trial court in appreciating the evidence of PWs 1 and 2
The High Court has ignored the inherent infirmity and failed to deal effectively with every important circumstance in the evidence which weighed with the trial court to disbelieve the prosecution case
We have noticed that the magistrates in conducting the test identification parade have committed a grave error
In the case of Accused No6 PW 9 had mixed up along with PWs 1 and 2 a person Gulati who knew the accused
Similarly in the identification of the other accused PW 4 who claimed acquaintance with Accused Nos2 3 and 5 was mixed up with PWs 1 and 2
When persons who have already known the accused persons to be identified are mixed up with the witnesses the test identification is clearly vitiated and is futile
Value of identification parade depends on the effectiveness and the precautions taken against the identifying witness having and opportunity of seeing the persons to be identified before they are paraded with others and also against the identifying witness being provided by the investigating authority with other unfair aid or assistance so as to facilitate the identification of the accused concerned
Therefore the evidence of the earlier identification in this case is unacceptable
The testimony of PWs 1 and 2 before court is also unsafe to be acted upon
Thus we do not consider that the view taken by the learned sessions judge on the whole was erroneous
The overall view of the evidence taken by the learned sessions judge is reasonable and plausible while it is true that some of the reasons given if taken individually do not appear to be substantial
Even when two evenly balanced views of the evidence are possible one must necessarily concede the existence of a reasonable doubt
Thus on a careful and anxious consideration of the evidence in the light of the reasoning adopted by the trial court as well as the High Court we are of the opinion that the High Court was not justified in interfering with the order of acquittal when the identity and involvement of the appellants had not been established beyond reasonable doubt
We accordingly allow the appeal set aside the conviction and sentence and maintain the order of acquittal
The bail bonds of the appellants shall stand cancelled
TNA Appeal allowed 731 light was available and the street light was distance it is unlikely that the eye witnesses by monetary glance of the assailants who surrounded the victim had a lasting impression and the chance of identifying the assailants without mistake
The credibility of the evidence relating to the identification depends largely on the opportunity the witness had to observe the assailants when the crime was committed and memorize the impression
This aspect of the matter had been stressed by the trial court in appreciating the evidence of PWs 1 and 2
The High Court has ignored the inherent infirmity and failed to deal effectively with the important circumstance in the evidence which weighted with the trial court to disbelieve the prosecution case
We have noticed that the magistrates in conducting the test identification parade have committed a grave error
In the case of Accused No 6 PW 9 had mixed up along with PWs 1 and 2 a person Gulati who knew the accused
Similarly in the identification of the other accused PW 4 who claimed acquaintance with Accused Nos 2 3 and 5 was mixed up with PWs 1 and 2
When persons who have already known the accused persons to be identified are mixed up with the witnesses the test identification is clearly vitiated and is futile
Value of identification parade depends on the the effectiveness and the precautions taken against the identifying witness having an opportunity of seeing the persons to be identified before they are paraded with others and also against the identifying witness being provided by the investigating authority with other unfair aid or assistance so as to facilitate the identification of the accused concerned
Therefore the evidence of the earlier identification in this case is unacceptable
The testimony of PWs 1 and 2 before court is also unsafe to be acted upon
Thus we do not consider that the view taken by the learned sessions judge on the whole was erroneous
The overall view of the evidence taken by the learned sessions judge is reasonable and plausible while it is true that some of the reasons given if taken individually do not appear to be substantial
Even when two evenly balanced views of the evidence are possible one must necessarily concede the existence of a reasonable doubt
Thus on a careful and anxious consideration of the evidence in the light of the reasoning adopted by the trial court as well as the High Court we are of the opinion that the High Court was not justified in interfering with the order of acquittal when the identity and involvement of the appellants had not been established beyond reasonable doubt
We accordingly allow the appeal set aside the conviction and sentence and maintain the order or acquittal
The bail bonds of the appellants shall stand cancelled
TNA Appeal allowed


Summary:
The Diesel Locomotive Works Indian Railway invited tenders for disposal of one lot of Ferrous scrap
One of the conditions mentioned in the tender notice was that the earnest money should be deposited by cash or by demand draft drawn of the State Bank of India
The appellant one of the intending purchasers submitted his tender accompanied by a cheque of Union Bank of India drawn on its own branch
The tender of the appellant being the highest was accepted and tenders of respondent No 1 and some others were rejected
The Tender Committee had verified from Union Bank of India the bona fide of appellant s cheque and then only decided to accept its tender
Respondent No 1 filed writ petition in the High Court challenging the rejection of its tender and acceptance of appellant s tender on the ground that the latter did not comply with the necessary condition for payment of earnest money with the tender
The appellant contended that it had substantially complied with the requirement by sending with its tender a banker s cheque marked and certified by the Union Bank of India as good for payment
The High Court opined that respondent s tender was rightly for failure to deposit the earnest money but allowed the writ petition holding that the appellant also did not satisfy the condition regarding payment of the earnest money since the cheque sent was from a bank other than the State Bank of India as stipulated and as such the authorities had no power to accept appellant s tender
Aggrieved the appellant preferred the appeal by special leave to this Court
Allowing the appeal this Court 697 HELD 1
As a matter of general proposition it cannot be laid down that an authority inviting tenders in bound to give effect to every term mentioned in the notice in meticulous detail and is not entitled to waive even a technical irregularity of little or no significance
The requirement in a tender notice can be classified into two categories those which lay down the essential conditions of eligibility and the other which are merely ancilliary or subsidiary with the main object to be achieved by the condition
In the first case the authority issuing the tender may be required to enforce them rigidly
In the other case it must be open to the authority to deviate from and not to insist upon the strict literal compliance of the condition in appropriate case
699E G 2
In the instant case in submitting the cheque drawn on the Union Bank of India and not on the State Bank of India the relevant condition of the tender notice was not obeyed literally but the said cheque must be treated as sufficient for the purpose of achieving the object of the condition and the Tender Committee took the abundant caution by a further verification from the bank
In the situation it could not be said that the Diesel Locomotive Works had no authority to waive the technical literal compliance of the clause regarding manner of payment of earnest money especially when it was in its interest not to reject the said bid which was the highest
699D E 700F G GJ Fernandez vs State of Karnataka  Ors  and Sita Ram Jhunjhunwala vs Bombay bullion Association Ltd  Anr  relied on
Ramana Dayaram Shetty vs International Airport Authority of India  Ors   Spargo s Case  Ms BD Yadav and MR Meshram vs Administrator of the City of Nagpur and TV Subharda Amma vs Kerala Board of Revenue and Others  referred to