GIREESAN NAIR & ORS. ETC. versus STATE OF KERALA
[2022] 8 S.C.R. 599, Supreme Court of India, 2022
Outcome: Appeal(s) allowed (Granted)
Segment: Issues
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GIREESAN NAIR & ORS. ETC.
v.
STATE OF KERALA
(Criminal Appeal Nos. 1864-1865 of 2010)
NOVEMBER 11, 2022
[B. R. GAVAI AND
PAMIDIGHANTAM SRI NARASIMHA, JJ.]
Evidence Act, 1872 : s. 9 – Test Identification Parade(TIP) –
Legality and validity of – Prosecution case that accused persons to
avenge the police atrocity hatched a conspiracy, abetted acts of
rioting and destruction of public property – A-17 and A-19 alleged
to have caused the death of a bus conductor – Accused convicted
and sentenced for hatching conspiracy, murder of the bus conductor
and destruction of roadways buses and other public properties –
Findings of trial court and High Court on issue of conspiracy and
murder attained finality – As regards, issue of destruction of
property, the trial court rejected all the objections to the legality
and 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 the
opportunity of seeing the accused before the conduct of TIP – Even
one of the accused deposed to the said effect – There existed no
useful purpose behind conducting the TIP – TIP was a mere
formality, and no value could be attached to it – Delay in holding
the TIP coupled with other circumstances cast a serious doubt on
the credibility of the TIP witnesses – Conduct of
the TIP, coupled
with the hovering presence of the police during the conduct of the
TIP vitiated the entire process – Trial court as well as the High
Court 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 prosecution
to prove the guilt of the accused – When the TIP is vitiated, the
conviction cannot be upheld – Appellants acquitted of all the
charges – Code of Criminal Procedure, 1973 – s. 386 – Penal Code,
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1860 – ss. 143, 147, 148, 149 – Prevention of Damages to Public
Property Act, 1984 – s. 3(2)(e).
s. 9 – Test Identification Parade – Conduct of – Object of
conducting TIP – Evidentiary value of TIP – Explained.
Allowing the appeals, the Court
HELD: 1.1 The eyewitnesses questioned by the
prosecution did not give out the names or identities of the accused
participating in the riot and involved in the destruction of public
property. Therefore, the IO (PW-84) had to necessarily conduct
a Test Identification Parade (TIP). The object of conducting a
TIP is threefold. First, to enable the witnesses to satisfy
themselves that the accused whom they suspect is really the one
who was seen by them in connection with the crime. Second, to
satisfy the investigating authorities that the suspect is the real
person whom the witnesses had seen in connection with the said
occurrence. Third, to test the witnesses’ memory based on first
impression and enable the prosecution to decide whether all or
any of them could be cited as eyewitnesses to the crime. [Para
25][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.
It is a rule of prudence which is required to be followed in cases
where the accused is not known to the witness or the complainant.
The evidence of a 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 witnesses
before a court of law at the time of trial. Therefore, TIPs, even if
held, cannot be considered in all the cases as trustworthy evidence
on which the conviction of an accused can be sustained. [Para
26][615-G-H; 616-A-B]
1.3 It is a matter of great importance both for the
investigating agency and for the accused and a fortiori for the
proper administration of justice that a TIP is held without
avoidable and unreasonable delay after the arrest of the accused.
This becomes necessary to eliminate the possibility of the accused
being shown to the witnesses before the test identification parade.
This is a very common plea of the accused, and therefore, the
prosecution has to be cautious to ensure that there is no scope
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for making such an allegation. If, however, circumstances are
beyond control and there is some delay, it cannot be said to be
fatal to the prosecution. But reasons should be given as to why
there was a delay. [Para 27][616-C-D]
1.4 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. [Para 28][616-E-F]
1.5 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. 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. [Para 29][617-A-B]
1.6 It is significant to maintain a healthy ratio between
suspects and non-suspects 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-suspects should be of the same age-group and should
also have similar physical features (size, weight, color, beard,
scars, marks, bodily injuries etc.) to that of the suspects. The
concerned officer 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. 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. Instead, it is on the prosecution.
[Para 30, 31][617-C-F]
GIREESAN NAIR & ORS. ETC. v. STATE OF KERALA
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2.1 Having considered the evidence of crucial
eye-witnesses and the material indicating the conduct of the TIP,
the 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
No. 2, at the end of the 1st TIP, had raised a grievance that the
suspects were all photographed, video-graphed and were shown
to the witnesses from the cabin of the IO (PW84). At the end of
the 2nd TIP, he had also stated that when accused Nos. 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. There
is 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. In view thereof,
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 is the evidence of
the eyewitnesses in the TIP, and when the TIP is vitiated, the
conviction cannot be upheld. [Para 44, 45][622-A-D]
2.2 Undue delay in conducting a TIP has a serious bearing
on the
credibility of the identification process. Though there is
no fixed timeline within which the TIP must be conducted and
the consequence of the delay would depend upon the facts and
circumstances of the case, it is imperative to hold the TIP at the
earliest. The possibility of the TIP witnesses seeing the accused
is sufficient to cast doubt about their credibility. [Para 46][622-E-
F]
2.3 Accused Nos. 1-16 were arrested on 13.07.2000. Instead
of filing an application for conducting a TIP at the earliest, the IO
(PW-84) filed a remand application, pursuant to which the accused
were remanded to police custody. There is strong evidence that
the accused were shown to the witnesses during their police
custody period. The fact that an application for conducting a TIP
was filed on 23.07.2000, i.e., the very next day after the police
custody period ended, leads to the inevitable conclusion that the
accused were taken into police custody to facilitate their easy
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identification during the TIP. Otherwise, this Court sees no
reason why an application for conducting a TIP was not filed
immediately after the arrest of the accused. In such
circumstances, the delay in holding the TIP coupled with other
circumstances casts a serious doubt on the credibility of the TIP
witnesses. [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 of
the Investigating Officer at the time of the TIP cannot be ruled
out. The Investigating Officer stated that he has not taken any
steps to ensure that the accused and the witnesses do not see
each other. It is rather surprising to note that Investigating Officer
thinks that such a measure is not necessary. The first and second
TIP report made by the JMFC (PW-47) is taken note of. The
Magistrate recorded that the Accused had raised concerns over
the manner in which the TIP was conducted. In view of the
evidence available on record, this Court is of the opinion that the
conduct of the TIP, coupled with the hovering presence of the
police during the conduct of the TIP vitiated the entire process.
The Trial court as well as the High Court has committed a serious
error in relying on the evidence of the TIP witnesses for convicting
and sentencing the appellants. This Court is of the opinion that
the conviction and sentencing are not sustainable. In view of these
lapses on the part of the prosecution, it is not
necessary for this
Court 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 noted
the various discrepancies in the manner in which both the TIPs
were conducted, the prosecution has not established its case
beyond reasonable doubt. Apart from the TIPs, there is no other
evidence put forth by the prosecution to prove the guilt of the
accused for offences under Sections 143, 147, 148 IPC and s.
3(2)(e) of PDPP Act r/w 149 IPC. The conviction and sentence of
the 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 SCC
733 : [2020] 8 SCR 1071; Lal Singh and Ors. v. State
GIREESAN NAIR & ORS. ETC. v. STATE OF KERALA
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of UP (2003) 12 SCC 554; Mulla and Anr. v. State of
U.P. (2010) 3 SCC 508:[2010] 2 SCR 633; Matru alias
Girish Chandra v. State of U.P. (1971) 2 SCC 75 :
[1971] 3 SCR 914; C. Muniappan and Ors. v. State of
Tamil 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; Ramkishan
Mithanlal Sharma v. State of Bombay (1955) 1 SCR
903; Rajesh Govind Jagesha v. State of Maharashtra
(1999) 8 SCC 428 : [1999] 4 Suppl. SCR 277; Budhsen
and Anr. v. State of UP (1970) 2 SCC 128 : [1971] 1
SCR 564; Maya Kaur Baldevsingh Sardar and Anr. v.
State of Maharashtra (2007) 12 SCC 654 : [2007] 10
SCR 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 Haryana
and Anr. (2001) 3 SCC 620 : [2001] (2) SCR 309; State
of Rajasthan v. Hanuman (2001) 1 SCC 337; Badri
and 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 of
Maharashtra (1998) 5 SCC 103 : [1998] 2 SCR 1209;
Lalli alias Jagdeep Singh v. State of Rajasthan (2003)
12 SCC 666; Ravi alias Ravichandran v. State
represented by Inspector of Police (2007) 15 SCC 372
: [2007] 5 SCR 766;
Suresh Chandra Bahri v. State of
Bihar (1995) Supp 1 SCC 80 : [1994] 1 Suppl. SCR
483; Munna Kumar Upadhyay v. State of Andhra
Pradesh (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) SCC
OnLine Del 1746; Mohanan Nair v. State of Kerala
(1989) Cr.L.J. 2106 (Ker) – referred to.
Case Law Reference
[2001] 2 SCR 309
referred to
Para 19
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(2001) 1 SCC 337
referred to
Para 19
(2000) 10 SCC 246
referred to
Para 19
[2006] 10 Suppl. SCR 1101
referred to
Para 21
(2003) 12 SCC 554
referred to
Para 21
[1998] 2 SCR 1209
referred to
Para 21
(2003) 12 SCC 666
referred to
Para 21
[2007] 5 SCR 766
referred to
Para 23
[1994] 1 Suppl. SCR 483
referred to
Para 23
[2012] 6 SCR 611
referred to
Para 24
[2010] 2 SCR 633
referred to
Para 25
[1971] 3 SCR 914
referred to
Para 26
[2010] 10 SCR 262
referred to
Para 26
[1999] 4 Suppl. SCR 286
referred to
Para 26
(1989) 3 SCC 24
referred to
Para 28
[2020] 8 SCR 1071
referred to
Para 29
[1955] 1 SCR 903
referred to
Para 29
[1999] 4 Suppl. SCR 277
referred to
Para 30
[1971] 1 SCR 564
referred to
Para 42
[2007] 10 SCR 752
referred to
Para 42
[1987] 2 SCR 962
referred to
Para 47
[1991] 3 SCR 600
referred to
Para 47
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
Nos.1864-1865 of 2010.
From the Judgment and Order dated 14.01.2010 of the High Court
of Kerala at Ernakulam in Criminal Appeal Nos.384 and 385 of 2006.
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,
GIREESAN NAIR & ORS. ETC. v. STATE OF KERALA
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Simarjeet Singh Saluja, for M/s. Lawyer S Knit & Co., Advs. for the
Appellants.
Harshad V. Hameed, Dileep Poolakkot,  Mrs. Ashly Harshad,
Advs. for the Respondent.
The Judgment of the Court was delivered by
PAMIDIGHANTAM SRI NARASIMHA, J.
1. These appealsaredirected against the judgment of the High
Court 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, 18601,
and Sections 3(2)(e) of Prevention of Damages to Public Property Act,
19842, read with Section 149 of the IPC. A sentence of four years of
rigorous imprisonment and a fine of Rs. 10,000, as imposed by the Trial
Court3,was also upheld by the High Court.
2. Facts : The facts of the present case can be traced back to the
year 2000 when the State of Kerala decided to delink pre-degree courses
from colleges and start plus-two courses at the school level. There were
protests against the implementation of the said policy. During one of the
protests on 12.07.2000, it is alleged that the police officialswere harsh,
and several protesters, including girl students, were injured.To avenge
the police atrocity, it is alleged that Accused Nos. 1-2 and 25-33hatched
a conspiracy to launch a protest the next day to create fear and terror in
the city.
3. In furtherance of the alleged conspiracy, on 13.07.2000, about
1500 protestors armed with weapons proceeded towards the Government
Secretariat. When
the group was met with resistance from the police
force, they became violent and caused damage to as many as 81 buses
belonging to the Kerala State Road Transport Corporation4.A few
protestors even went inside the garage of KSRTC, and when the KSRTC
workers repelled them, the protestors turned even more violent, leading
to the death ofone Mr.Rajesh, a bus conductor with KSRTC.
4. In the aftermath of this event, based on the statement given by
Rajesh, 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 Case
Nos. 302 of 2001, 1786 of 2001 and 1313 of 2002 dated 15.02.2006.
4 hereinafter referred to as ‘the KSRTC’.
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143, 147, 148, 307, 149 of the IPC, Section 3(2)(e) of the PDPP Act and
Sections 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 of
rioting. The Appellants herein and Accused Nos. 17 and 19 being part of
the mob, formed an unlawful assembly which resulted in riots and wide-
scale destruction of public property. Further, Accused Nos. 17 and 19
were 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 Accused
Nos. 1-16 on 13.07.2000. Two days later, the investigation washanded
over to PW-76.After taking over the baton, PW-76 was informed that
Rajesh had succumbed to the injuries. Immediately upon receiving that
information, PW-76 proceeded to the hospital to conduct an inquest.
Afterconcluding that the death was homicidal, he approached the
concerned court, which had taken cognizance of the matter to alter the
charge under Section 307 to that of Section 302 of the IPC.Considering
the gravity of the subject and wide-scale repercussions, the Director
General of Police constituted a Special Investigation Team headed by
PW-84, the then Dy. S.P., Narcotic and Economic Offences Cell, CBCID,
Thiruvananthapuram. After taking charge of the investigation, PW-84
arrested Accused Nos. 17-18 on 01.08.2000 and Accused Nos. 19 on
04.08.2000. It is PW-84 who completed the
investigation and filed a
charge sheet before the Trial Court. However, before getting into the
details of the charges levelled and the consequent decision of the Sessions
Court, it is essential to mention the twoTest Identification Parades
conducted by PW-47, Judicial Magistrate First Class –IV,
Thiruvananthapuram, which have a direct bearing on the final decision
in this matter.
6. 1st Test Identification Parade:Conducting a Test Identification
Parade5was crucial for the prosecution as there were more than 1500
people who were part of the mob, and only a handful of them were
arrested and charge-sheeted.It is for this reason that the IO (PW-84)
submitted a report before theChief Judicial Magistrate6 and sought the
consent of the CJM for conducting a TIP. The CJM accepted this request
and,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’.
GIREESAN NAIR & ORS. ETC. v. STATE OF KERALA
[PAMIDIGHANTAM SRI NARASIMHA, J. ]
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conduct 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 the
TIP do not get any opportunity to see the Accused before the TIP. For
conducting 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 officers
and ten civilians. In addition to thesethirty non-suspects, the Judicial
Magistrate (PW-47)is said to have shortlisted twenty-one undertrials to
participate in the TIP. However, PW-47 decided to go ahead with only
twenty-one undertrials andten civilians. It is his version that he made an
effort to fetch more undertrials for the TIP, but to no avail. Ultimately,
he conducted the TIP by mixing the sixteen accused with the thirty-one
non-suspects.
8. The TIP began with the Judicial Magistrate (PW-47) taking
note of the name, address, and other details of the non-suspects. After
that, the suspects and non-suspects were mixed, and witnesses were
asked to identify the Accused.
9. After the conclusion of the identification process for Accused
Nos. 1-16, the non-suspects were asked to leave, and when the suspects
were alone, they were asked if they hadany
complaints abouthow the
TIP was conducted. It is alleged that all of them replied in the negative.
However, when questioned if they had anything else to say, Accused
No. 2, on behalf of all the accused, stated that,when the suspects were
in police custody from 20.07.2000 to 22.07.2000, they were all
photographed and video-graphed and were also shown to all the six
witnesses from the cabin of the IO (PW-84). All this is evident from the
“Report of the Identification Parade of the 16 Accused Persons
dated 31.07.2000”.
10.1 2nd Test Identification Parade : In the previous TIP, six
witnesses identified accused 1-16. But as mentioned earlier, Accused
Nos. 17-19 were arrested after the completion of the 1st TIP. In that
view of the matter, permission to conduct the 2nd TIP was sought from
the CJMbythe IO (PW-84)to facilitate the identification of the Accused
in three phases – (i) In the 1st Phase to identify Accused Nos. 17-19 by
those very witnesses who identified Accused Nos. 1-16 in the 1st TIP
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(PWs 1, 3, 4, 5, 6 and 7); (ii) In the 2nd Phase to identify Accused Nos.
1-16 by PW’s 10, 11, 12 and 15; and (iii) In the 3rd Phase to
identifyAccused Nos. 1-19 by PW’s 8, 9 and 33.After receiving the
request from the IO (PW-84), the CJM granted permission and directed
the Judicial Magistrate (PW-47) to conduct the 2nd TIP. Accordingly,
PW-47 decided to conduct the 2nd TIP on 26.08.2000. The conduct of
the TIP in each of the phases is as under.
10.2 In the 1st Phase of this TIP, Accused Nos. 17-19,who were
to be identified, were mixed with sixteen under-trial non-suspects. After
the identification process culminated, Accused No.19, for himself and
the 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, he
also stated that they were all photographed and video-graphed and that
they were allowed to be seen by all the witnesses when they were taken
to court for extending their remand.
10.3 In the 2nd Phase of the TIP, Accused Nos. 1-16 who were to
be identified were mixed with 45 non-suspects, with thirty-one of them
being under-trials and the remaining being civilians. Thereafter, PWs 10,
11, 12 and 15 proceeded with the identification.
10.4 In the 3rd Phase of the TIP, Accused Nos. 1-19 were to be
identified by PWs 8, 9 and 33. For identification, the Accused were
mixed with the pre-existing 45 non-suspects. After the end of the
identification process,Accused No. 2, on
behalf of others, stated that
when Accused Nos. 1-19 were taken to court for remand,and the
presence of all the witnesses was arranged in the court by the police.
He reiteratedthat while they were in police custody,they were
photographed and video-graphed and were also made to be seen by all
the witnesses from the chamber/cabin of the IO (PW-84). All the Accused
collectively stated that they were wearing the very same dress, straight
from their arrest, till the date of the TIP. All this is evident from the
“Report of the Identification Parade of the 19 Accused Persons
dated 26.08.2000”.
11. Thus, it can be seen that from the very beginning, the Accused
had objected tohow the TIP was conducted and the events preceding it,
which inter-alia included – (i) the Accused being shown to the witnesses
from the cabin of the IO (PW-84); (ii) the Accused being photographed
and video-graphed while they were in police custody; (iii) securing the
presence of the witnesses in court while the accused were produced for
GIREESAN NAIR & ORS. ETC. v. STATE OF KERALA
[PAMIDIGHANTAM SRI NARASIMHA, J. ]
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extension of their remand; and (iv) the Accused wearing the same dress
straight from their arrest till the date of the TIP.
12. Upon completion of the investigation, including the TIP as
indicated above, charge sheet was filed on 23.09.2000, and the case
was committed to the Court of Additional District and Sessions Judge
(Fast-track Court – I), Thiruvananthapuram, on 27.10.2000.
13. Sessions Court and High Court:On 26.05.2005, the Sessions
Court 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 the
PDPP Act against Accused Nos. 1-33. The prosecution examined 85
witnesses and marked 134 documents as exhibits. Thereafter, the defence
examined 3 witnesses and marked 24documents as exhibits. After hearing
the matter in detail, the Sessions Court framed 12 points for consideration,
which can be broadly classified into three issues(i) conspiracy hatched
by Accused Nos. 1-2 and 25-33; (ii) the murder of Rajesh; and (iii) the
destruction of KSRTC buses and other public properties.
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 deposed
before the court that he had overheard the conversation between the
Accused hatching the conspiracy. PW-85, on the other hand, turned
hostile. Therefore, based on the deposition of PW-68, the
Sessions Court
convicted Accused Nos. 1-2 and 25-33 under Sections 120B of the IPC
r/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 High
Courtdisbelieved PW-68 and consequently set aside the conviction of
Accused Nos. 1-2 and 25-33 under the abovementioned provisions. The
decision of the High Court on the issue of conspiracy against Accused
Nos. 1-2 and 25-33 has attained finality as the State has not preferred
an appeal.
15.  Re: Charge of the murder of Rajesh against Accused 17
and 19: In so far as the issue relating to thecharge ofmurderof Rajesh
against Accused Nos. 17 and 19is concerned; the prosecution relied
upon the evidence of PWs 5, 6 and 8.These witnesses deposed that
while Accused No. 17 beat Rajesh with an iron pipe, Accused No. 19
beat him with a wooden reaper. Based on the deposition of PWs 5, 6
and 8, the Sessions Court convicted Accused Nos. 17 and 19 under
Sections 302 r/w 34 of the IPC for life. The High Court, in appeal, set
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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 as
the State has not appealed before this Court against the altered conviction
and the reduced sentence. In fact, even Accused Nos. 17 and 19 have
not appealed since they had already served a sentence of seven years.
16. Given the findings of the Trial and the High Court on the issue
of conspiracy and murder attaining finality, the only question that falls
for 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 against
Accused 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 Section
149 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, as
eye-witnesses to the crime. To prove the presence of these witnesses,
the prosecution had to necessarily rely on the TIP proceedings.The
defence questioned the TIP on various grounds, among other things,the
presence of IO (PW-84) at the time of conducting the TIP, the accused
being photographed and video-graphed while they were in police custody,
among others.
18.
The Sessions Court rejected all the objections to the legality
and credibility of the TIP by holding that (i) the IO (PW-84) was just
present and did not influence the TIP in any manner; (ii) the imbalance
in the ratio between suspects and non-suspects in the TIP is not the
Judicial Magistrate’s (PW-47) or the IO’s (PW-84) fault, because they
tried their best to fetch more non-suspects; (iii) the IO (PW-84) took
steps to prevent disclosure of identity of accused to witnesses before
the TIP by covering the side of the vehicle in which they were brought
to the court for extension of remand, though, he also stated that he did
not put a mask on them; (iv) there is no material to show that photographs
or video-graphs of the Accused were taken and shown to the witnesses
prior 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 to
them before the TIP, during re-examination, both of them frankly admitted
that after the incident, they had seen the miscreants for the first time
during the TIP.In view of its conclusions on the TIP, the Trial Court
proceeded to convict Accused Nos. 1-7, 9-12, 14, 16-19 under Sections
GIREESAN NAIR & ORS. ETC. v. STATE OF KERALA
[PAMIDIGHANTAM SRI NARASIMHA, J. ]
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143, 147, 148 IPC and 3(2)(e) of PDPP Act r/w 149 of the IPC and
sentenced them to four years of imprisonment.
19. The High Court has, while exercising criminal appellate
jurisdiction, failed to consider any of the submissions made by the
Appellants on the legality or the integrity of the TIP. The following passage
is the only discussion on this argument:
“43. ….. The Court below has made its finding regarding the
offencepunishable under Ss.143, 147 and 148 IPC and
S.3(2)(e) of the PDPP Act,based on the identification of the
various witnesses in court. The matter hasbeen dealt with
elaborately by the Court below. It is idle for theappellants to
say that there was no proper identification and so,it was not
possible to say, who had caused obstruction to theKSRTC
buses. Moreover, when a group of persons causedamage to
public properties, each one of that illegal group willbe held
liable for the acts of the other members in the groupalso.”
In view of the above, the High Court upheld the conviction of
Accused Nos. 1-7, 9-12, 14, 16-19 under Sections 143, 147, 148 IPC
and 3(2)(e) of PDPP Act r/w 149 of the IPC and also the sentence of
four years imprisonment imposed upon them by the Sessions Court.
Therefore, the learned counsel for the Appellants were justified in
contending that the High Court has not considered the submissions of
the Appellants on law and on fact. The High Court, while exercising
criminal appellate
jurisdiction under Section 386 of the Code of Criminal
Procedure, 1973, has to necessarily assess the evidence on record with
a view to satisfy itself that the appreciation of evidence by the Trial
Court is not vitiated by any illegality and is not palpably erroneous. The
dismissal of appeal without considering an appellant’s contention is a
serious infirmity, which will result in no legal judgment in the eye of law7.
20. Submissions of the Parties : Ms. Sonia Mathur, learned Senior
Advocate appearing for Accused Nos. 1-7, 9, 14, 16 and 18, at the very
outset,contended that the High Court has not rendered any independent
finding on the issue of destruction of public property and has merely
reiterated what the Sessions Court had held.
21. Be that as it may, the central thrust of Ms. Mathur’s submission
was 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.
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the TIP was of utmost importance, considering that this was a case
where criminal liability was fastened only against a few protestors. She
raised questions over the integrity of the TIP by contending that (i) the
ideal ratio of suspects to non-suspects as laid down by the Kerala High
Court in Pradeepan v. State of Kerala8, has not been followed; (ii) the
presence of IO (PW-84) in the premises of central jail during both the
TIPs vitiates the TIP in its entirety; (iii) the IO (PW-47) in both the TIPs
did not record physical features, age etc. of the non-suspects. The learned
senior counsel gave an example by stating that Accused No. 7 had a
long beard, but there were no non-suspects having a long beard; (iv) the
IO (PW-84) has admitted that Accused Nos. 1-16 were in his custody
when he questioned the eyewitnesses in his office; (v) PW-3 and PW-4
have admitted that they had seen the Accused while they were at the
Police Station; (vi) PW-1, PW 8-12 and PW-33 have admitted that they
had identified the Accused in the TIP based on the pictures they saw in
the newspaper; (vii) the Accused had complained that while they were
in police custody, they were photographed and shown to the witnesses
from the cabin of PW-84; (viii) Remand Report dated 14.07.2000 clearly
stated 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 the
decision in AcharaparambathPradeepan and Anr.v. State of
Kerala9,
Lal Singh andOrs. v. State of UP10 and Shaikh Umar Ahmed Shaikh
and Anr.v. State of Maharashtra11; and (x) no importance can be given
to the identification made in the TIP when the same witness fails to
identify the same accused before the court. For this purpose, reliance
was placed on the judgement of this Court in Lallialias Jagdeep Singh
v. State of Rajasthan12.Independent of her submissions on the aspect
of TIP, the learned senior advocate also relied upon the decision of the
Delhi High Court in Capitol Art House (P) Ltd v. Neha Datta13, where
it was held that re-examination of witnesses should not be allowed,
especially to facilitate them to rectify their mistakes. This submission
was made in the context of PW-3 and PW-4s contradictory statements
made in the chiefexamination and the re-examination.
8 (2005) 3 KLT 1075.
9 (2006) 13 SCC 643
10 (2003) 12 SCC 554
11 (1998) 5 SCC 103
12 (2003) 12 SCC 666
13 (2022) SCC OnLine Del 1746
GIREESAN NAIR & ORS. ETC. v. STATE OF KERALA
[PAMIDIGHANTAM SRI NARASIMHA, J. ]
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22. Shri Vinay Navare, learned Senior Advocate appearing for
Accused 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 had
stated in his deposition that he was not present at the time of the incident
and that he reached the place of occurrence only after the incident; (ii)
PW-6 could only identify Accused Nos. 17 and 19 and could generally
identify the other accused as the agitators; (iii)PW-8 had stated in his
deposition that he identified the Accused on the basis of the images he
saw in a newspaper.
23. Shri Navare also raised questions over how the TIP was
conducted by submitting that (i) the purpose of conducting a TIP fails
when pictures of the accused are published in newspapers. He relied
upon the decision of this Court in Ravi alias Ravichandran v. State
represented by Inspector of Police14,where this Court had held that no
importance could be attached to a TIP where the photos of the alleged
suspects were making rounds in newspapers and also when the witnesses
had a chance to look at the accused while the accusedwere in police
custody. Additionally, he also placed reliance on the judgement of this
Court in Shaikh Umar Ahmed Shaikh and Anr.v. State of Maharashtra
(supra) to bolster his submission on the same point; (ii) the ratio of
suspects to non-suspects was improper in the 1st TIP; (iii) the IO (PW-
84) was present in the hall
where both the TIPs took place; (iv) there
was a delay of over one month between the date of the incident and the
dates of the TIP, which facilitated the investigation officer to acclimatise
the witnesses to the way the Accused’s look. He relied upon the decision
of this Court in Suresh ChandraBahri v. State of Bihar15 where it has
been held that a TIP has to be conducted at the earliest possible
opportunity; and (v) the identification made by PW-5, PW-6 and PW-8
are of no consequence as they are not an independent witness.
24. Shri Harshad V. Hameed, learned counsel appearing for the
State, countered the submissions made regarding the conduct of the TIP
by contending that – (i) the decision in Pradeepan v. State of Kerala16,
is not binding. The same were mere guidelines which could be adjusted
based on the facts and circumstances of a case. Reliance was also
placed on the decision of the Kerala High Court in Mohanan Nair v.
14 (2007) 15 SCC 372
15 (1995) Supp 1 SCC 80
16 Supra No.8
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State of Kerala17, to support the same point; (ii) a TIP can be accepted
as a piece of evidence based on the subjective satisfaction of a court,
which has occurred in this case; (iii) if there were concerns about the
manner in which the TIP was conducted, then the TIP itself should have
been challenged. In that view of the matter, it was submitted that when
it has not been challenged, then under Section 80 of the Indian Evidence
Act, 1872, a presumption arises that the TIP Report is a valid proof of
evidence; (iv) the JFMC (PW-47) took every measure within his reach
to ensure smooth conduct of the TIP; (v) the IO (PW-84) took all possible
measures to ensure that the TIP is conducted at the earliest possible
opportunity; (vi) reliance was placed on the decision of this Court in the
case of Munna Kumar Upadhyay v. State of Andhra Pradesh18, where
it was held that if pictures of the suspects were circulated in newspapers
months before the TIP is conducted, then the circulation would have lost
its effect on the minds of the witnesses; (vii) the Sessions Court has only
convicted those accused, who were identified both before the Court as
well as in the TIP. The testimony of these eyewitnesses never suffered
from 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 perused
the case records. We may, at the outset, note that the
eyewitnesses
questioned by the prosecution did not give out the names or identities of
the Accused participating in the riot and involved in the destruction of
public property. Therefore, the IO (PW-84) had to necessarily conduct
aTIP. The object of conducting a TIP is threefold. First, to enable the
witnesses to satisfy themselves that the accused whom they suspect is
really the one who was seen by them in connection with the crime.
Second, to satisfy the investigating authorities that the suspect is the
real person whom the witnesses had seen in connection with the said
occurrence. Third, to test the witnesses’ memory based on first
impression and enable the prosecution to decide whether all or any of
them could be cited as eyewitnesses to the crime (Mulla and Anr. v. State
of U.P.19).
26. TIPs belong to the stage of investigation by the police. It assures
that investigation is proceeding in the right direction. It is a rule of
prudence which is required to be followed in cases where the accused is
17 (1989) Cr.L.J. 2106 (Ker)
18 (2012) 6 SCC 174
19 (2010) 3 SCC 508 (Paras 44, 45 and 55)
GIREESAN NAIR & ORS. ETC. v. STATE OF KERALA
[PAMIDIGHANTAM SRI NARASIMHA, J. ]
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not known to the witness or the complainant (Matrualias Girish
Chandra v. State of U.P.20; Mulla and Anr. v. State of U.P.21 and C.
Muniappanand Ors. v. State of Tamil Nadu22). The evidence of a TIP
is admissible under Section 9 of the Indian Evidence Act. However, it is
not a substantive piece of evidence. Instead, it is used to corroborate the
evidence given by witnesses before a court of law at the time of trial.
Therefore, TIPs, even if held, cannot be considered in all the cases as
trustworthy evidence on which the conviction of an accused can be
sustained (State of H.P. v. Lekh Raj and Anr.23; and C. Muniappanand
Orsv. State of T.N.24).
27. It is a matter of great importance both for the investigating
agency and for the accused and a fortiori for the proper administration
of justice that a TIP is held without avoidable and unreasonable delay
after the arrest of the accused. This becomes necessary to eliminate the
possibility of the accused being shown to the witnesses before the test
identification parade. This is a very common plea of the accused, and
therefore, the prosecution has to be cautious to ensure that there is no
scope for making such an allegation. If, however, circumstances are
beyond control and there is some delay, it cannot be said to be fatal to
the prosecution. But reasons should be given as to why there was a
delay (Mulla and Anr. v. State of U.P.25 and Suresh Chandra Bahri v.
State of
Bihar26).
28. 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 toestablish 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 and Orsv. State of U.P.27and
Suryamoorthi and Anr.v.Govindaswamy and Ors.28).
20 (1971) 2 SCC 75 (Para 17)
21 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.10
28 (1989) 3 SCC 24
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29. 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(Shaikh Umar
Ahmed Shaikh and Anr.v. State of Maharashtra29). 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 (Chunthuramv.
State of Chhattisgarh30 and Ramkishan Mithanlal Sharma v. State
of Bombay31).
30. It is significant to maintain a healthy ratio between suspects
and non-suspects 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-suspects should be of the same age-group
and should also have similar physical features (size, weight, color, beard,
scars, marks, bodily injuries etc.) to that of the suspects. The concerned
officer 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
Jageshav. State of Maharashtra32 and Ravi v. State33).
31. 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.
Instead, it is on the prosecution (Rajesh Govind Jageshav. State of
Maharashtra34).
32. We will now consider the three major contentions raised by
the Appellants before us, being (i) the credibility of the eye-witnesses
who participated in the TIP to identify the accused; (ii) delay in conducting
the TIP; and(iii) legality of the TIP and the presence of the IO during the
conduct of the TIP.We will now consider each of these submissions.
29 Supra No.11
30 (2020) 10 SCC 733
31 (1955) 1 SCR 903
32 (1999) 8 SCC 428
33 Supra No.14
34 Supra No.32 (Para 4)
GIREESAN NAIR & ORS. ETC. v. STATE OF KERALA
[PAMIDIGHANTAM SRI NARASIMHA, J. ]
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33. Re : Credibility of the eyewitnesses who participated in
the 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 to
the CrimeBranch office on different days.
(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 the
crimebranch office
(A). They were shown
(Q). Were some more ofthe accused were shown to you before
going to the 2ndparade
(A). Yes”
35. PW-4, in his deposition before the Sessions Court, has stated
that:
“I went to Crime Branch office for giving statement. That
was 8-10 days prior to the first parade.
(Q). When you went there to give your next statement did they
show you some of the accused
(A). They were there
(Q). After the first parade I have given statement tothe Crime
Branch. That was before 2nd parade. Did they show you the
accused atthat time
(A). They were there. Thus, those persons I saw or shown to
me were identified at the time of parade.”
36. Both these witnesses, during their re-examination,
have,however,contradicted themselves by stating that they saw the
Accused for the first time during the TIP.
37. In so far as PW-5 is concerned, his presence at the scene of
the offence and seeing the Accused committing the offence is in serious
doubt. 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 10-20
persons including who stood outside the office and at the
place 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 days
prior to the 1st TIP, i.e., on 20.07.2000. This date coincided with the date
when the Accused were also taken into police custody.On the other
hand, PW-8, whose evidence has also been relied upon by the
prosecution, has stated in his deposition that he identified the Accused in
the TIP based on the pictures published in a newspaper.
39. PW-31, an employee of KSRTC, has deposed only on the
financial loss caused to KSRTC because of the destruction. His deposition
is not helpful to fasten any liability on the Accused.
40. The last witness relied upon by the prosecution to prove the
charge of destruction of public property was PW-33. However, this
witness 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 any
of the witnesses whether they had any prior acquaintance with the
suspects or non-suspects or whether the suspects or non-suspects were
shown to them by the IO (PW-84).
PW-47 stated that he did not ask any
such question to the suspects before commencing the parade. However,
he said that he asked the suspects at the end of the parade if they had
any objection to the manner in which the TIP was conducted. It may be
recounted that Accused No. 2 had objected that they were shown to the
witnesses while they were in police custody.
42. This Court in Budhsenand Anr. v. State of UP35, had directed
that sufficient precautions have to be taken to ensure that the witnesses
35 (1970) 2 SCC 128
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who are to participate in the TIP do not have an opportunity to see the
accused 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 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
Rajasthan37and Maya Kaur Baldevsingh Sardar and Anr. v. State
of Maharashtra38, 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 circumstances remains inconsequential. Another
crucial decision was rendered by this Court in Shaikh Umar Ahmed
Shaikh and Anr.v. State of Maharashtra39, where it was held:
“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 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.”
36 Supra No.10
37 Supra No.12
38 (2007) 12 SCC 654
39 Supra No.11
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43. In so far as evidence of PW-8 is concerned, who has stated
that he identified the accused in the TIP based on pictures published in
newspapers, the position of law is clear.This Court in Suryamoorthiv.
Govindaswamy40, has held as follows:
“10. Two identification parades were held in the course of
investigation. At the first identification parade PW 1 identified
all the seven accused persons whereas PW 2 identified three
of them, namely, Accused 2, 6 and 7 alone. It is, however, in
evidence that before the identification parades were held the
photographs of the accused persons had appeared in the local
daily newspapers. Besides, the accused persons were in the
lock-up for a few days before the identification parades were
held and therefore the possibility of their having been shown
to 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. State41, has
again reaffirmed the aforesaid position by holding as follows:
“17. Certain facts are not in dispute. The test identification
parade was held after ten days. It is also not in dispute that
the photographs of the accused were taken at the police
station. The investigation officer allowed them to be published.
Photographs of the appellant and the said Udayakumar were
not 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 ten
days thereafter, in our opinion, looses all significance, in the
aforementioned fact situation.
19. In a case of this nature, it was incumbent upon the
prosecution to arrange a test identification parade. Such test
identification parade was required to be held as early as
possible so as to exclude the possibility of the accused being
identified either at the police station or at some other place
by the witnesses concerned or with reference to the
photographs published in the newspaper. A conviction should
not be based on a vague identification.”
40 Supra No.28
41 Supra No.14
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44. Having considered the evidence of crucial eye-witnesses and
the material indicating the conduct of the TIP, we are of the opinion that
the 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 No. 2, at the end of the
1st TIP, had raised a grievance that the suspects were all photographed,
video-graphed 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 Nos. 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.
45. 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 is the evidence of the eye-witnesses in the TIP,
and when the TIP is vitiated, the conviction cannot be upheld. We will
now examine the
other lapses while conducting the TIPs.
46. Re: Delay in conducting the TIP : Undue delay in conducting
a TIP has a serious bearing on the credibility of the identification process.
Though there is no fixed timeline within which the TIP must be conducted
and the consequence of the delay woulddepend upon the facts and
circumstances of the case42, it is imperative to hold the TIP at the earliest.
The possibility of the TIP witnesses seeing the accused is sufficient to
cast doubt about their credibility. The following decisions of this Court
on the consequence of delay in conducting TIP have emphasised that
the possibility of witnesses seeing the accused by itself can be a decisive
factor for rejecting the TIP. In Suresh Chandra Bahri v. State of
Bihar43, it was held that:
“It is a matter of great importance both for the investigating
agency and for the accused and a fortiori for the proper
administration of justice that such identification is held without
avoidable and unreasonable delay after the arrest of the
42 Supra No.9
43 Supra No.15
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accused and that all the necessary precautions and
safeguards were effectively taken so that the investigation
proceeds on correct lines for punishing the real culprit. It is
in adopting this course alone that justice and fair play can
be assured both to the accused as well as to the prosecution.
But the position may be different when the accused or a culprit
who stands trial had been seen not once but for quite a number
of times at different point of time and places which fact may
do away with the necessity of a TIP.”
47. In Budhsen & Anr. v. State of UP 44, this Court set aside the
conviction imposed on the appellant therein, on the ground that no
conviction can be based by solely relying on the identification made in a
TIP. While holding that a 14-day delay by itself in conducting the TIP
may not cause prejudice to the accused, it observed that there is a high
chance of accused being seen by the identifying witnesses outside the
jail premises. In Subash and Shiv Shankar v. State of U.P.45, this Court
acquitted an accused on the ground that the TIP was held three weeks
after the arrest was made. This Court suspected that the delay in holding
the TIP could have enabled the identifying witnesses to see the accused
therein in the police lock-up or in the jail premises. In State of A.P. v. Dr
M.V. Ramana Reddy and Ors.46,this Court acquitted respondent nos. 2
and 3 therein on the ground that there was a delay of 10 days in conducting
the TIP, and in those
10 days, there was a high likelihood of their
photographs being shown to the witnesses. In Rajesh Govind Jageshav.
State of Maharashtra47,a delay of about one month was viewed seriously
by this Court since there was a possibility of the accused being shown to
the witnesses.
48. Returning to the facts of the present case, we have already
noted that Accused Nos. 1-16 were arrested on 13.07.2000. Instead of
filing an application for conducting a TIP at the earliest, the IO (PW-84)
filed aremand application, pursuant to which the Accused were remanded
to police custody. There is strong evidence that the Accused were shown
to the witnesses during their police custody period. The fact that an
application for conducting a TIP was filed on 23.07.2000, i.e., the very
44 Supra No.35
45 (1987) 3 SCC 331
46 (1991) 4 SCC 536
47 Supra No.32
GIREESAN NAIR & ORS. ETC. v. STATE OF KERALA
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next day after the police custody period ended, leads to the inevitable
conclusion that the Accused were taken into police custody to facilitate
their easy identification during the TIP. Otherwise, we see no reason
why an application for conducting a TIP was not filed immediately after
the arrest of the Accused. In such circumstances, we firmly believe that
the delay in holding the TIP coupled with other circumstances has cast a
serious doubt on the credibility of the TIP witnesses.
49. Re: Legality of the TIP and the presence of the IO during
the conduct ofthe TIP:A three-judge bench of this Court in
Chunthuramv. State of Chhattisgarh48, by relying on Ramkishan
Mithanlal Sharma v. State of Bombay49, has held that any identification
made by witnesses in a TIP in the presence of a police officer tantamount
to statements made to the police officer under Section 162 Cr.P.C. The
Court held:
“The infirmities 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.”
50. The evidence of IO (PW-84) about the conduct of the Test
Identification Parade may be noted: -
“(Q). Did you make any
arrangement to prevent the witness
and the accused from seeing each other inside the jail?
(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-suspects
were selected. The civilian were produced by the IO. On that
date also Dy. SP and CI were present in the premises of the
jail……”
48 Supra No.30
49 Supra No. 31
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52. With respect to the 2nd TIP conducted on 26.08.2000, the JMFC
(PW-47) statedthat:
 “On 26.08.2000 Dy. SP S.P. Joshwa was also present in the
central prison”.
53. Having considered the statement of the JMFC (PW-47) and
the evidence of the IO (PW-84) together, we are of the view that the
presence of the Investigating Officer at the time of the TIP cannot be
ruled out. The Investigating Officer has stated that he has not taken any
steps to ensure that the accused and the witnesses do not see each
other. It is rather surprising to note that Investigating Officer thinks that
such a measure is not necessary.
54. In this very context, we may also note the first TIP report
dated 31.07.2000 made by the JMFC (PW-47). The Magistrate recorded
that the Accused had raised concerns over the manner in which the TIP
was 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 to
the manner of the conduct of the parade. All of them replied
in the negative. When questioned, whether they have got
anything else to say, they unanimously asked Mr. Padma Kumar
(A2) to state something. He then said that when the suspects
were in Police custody, they were all, photographed and
videographed and were also shown to all the 6 witness, who
are made to identify them in the parade, from the cabin of the
Dy. SP. Mr. Joshwa.”
55. Even the report of the
second TIP dated 26.08.2000 as
recorded 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 complaint
regarding the manner of the conduct of the parade. They all
replied in the negative. When queried further, whether they
have got anything else to say all of them wanted the second
accused 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 three
days; that accused nos. 17 to 19 were similarly in police
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custody for 6 days; that when all the 19 were taken to the
court on 24 and 25.8.2000 presence of all the witnesses in
the court were arranged by the Police, so as to enable them
to see all the accused persons; and that while in Police custody
all of them were photographed and videographed and were
also made to be seen by all the witnesses, from the chamber
of Deputy Superintendent Of Police, the investigating officer.
All the accused had also stated that they were wearing the
very same dress, straight from their arrest till date.”
56.  In view of the evidence available on record, we are of the
opinion that the conduct of the TIP, coupled with the hovering presence
of the police during the conduct of the TIP vitiated the entire process.
The Trial Court as well as the High Court have committed a serious
error in relying on the evidence of the TIP witnesses for convicting and
sentencing the Appellants. We are of the opinion that the conviction and
sentencing are not sustainable. In view of these lapses on the part of the
prosecution, it is not necessary for us to consider various other grounds
raised by the Appellants.
57. Conclusion : Having considered the matter in detail and having
noted the various discrepancies in the manner in which both the TIPs
were conducted, we believe that the prosecution has not established its
case beyond reasonable doubt. Apart from the TIPs, we find no other
evidence put forth by the
prosecution to prove the guilt of the Accused
for offences under Sections 143, 147, 148 IPC and 3(2)(e) of PDPP Act
r/w 149 of the IPC.
58. For the reasons stated above, and in conclusion, we: -
i.
Allow Criminal Appeal Nos. 1864-1865 of 2010 arising out
of the judgment of the High Court of Kerala in Criminal
Appeal Nos. 384 and 385 of 2006, and
ii.
Set aside the conviction and sentence of the Appellants under
the judgment of the High Court of Kerala in Criminal Appeal
Nos. 384 and 385 of 2006 dated 14.01.2010 and the judgment
of 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 dated
15.02.2006 under Sections 143, 147, 148 IPC and 3(2)(e)

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of Prevention of Damages to Public Property Act, 1984
r/w Section149 of the IPC.
iii.
The Appellants are acquitted of all the charges, and their
bail bonds, if any, stand discharged.Pending interlocutory
applications, if any, stand disposed of in terms of the above
order.
iv.
Parties shall bear their own cost.
Nidhi Jain
Appeals allowed.
(Assisted by : Shubhanshu Das, LCRA)
GIREESAN NAIR & ORS. ETC. v. STATE OF KERALA
[PAMIDIGHANTAM SRI NARASIMHA, J. ]