2007 Supreme(SC) 610

2007(3) Supreme 781
SUPREME COURT OF INDIA
(From Madras High Court)
S.B. Sinha and Markandey Katju, JJ.
Ravi @ Ravichandran — Appellant
versus
State Rep. By Inspector of Police — Respondent
Criminal Appeal No. 636 of 2007
(Arising out of S.L.P. (Crl.) No. 6341 of 2006)
Decided on 27-4-2007
Counsel for the Parties :
For the Appellant : Venkateswara Rao Anumolu, Sateesh Galla, Prabhakar Parnam, K.K.S. Krishnaraj and Satya Mitra Garg, Advocates.
For the Respondent : R. Sundaravaradan, Sr. Advocate, V.G. Pragasam, S. Vallinayagam and S. Prabhu Ramasubramanian, Advocates.

IMPORTANT POINT
A conviction should not be based on a vague identification.

Headnote:Indian Penal Code, 1860 — Section 302 — Deceased with PW2 and PW3 while returning from mosque at 5.30 A.M. was attacked by appellant with knife — PW3 was stabbed by other accused convicted u/s 307 IPC — Conviction by trial Court and upheld in appeal by High Court — Appeal — FIR was lodged by PW1 against unknown persons — FIR did not show any such identity mark of scar noticed on hand of appellant which PW1 claimed to have disclosed — Test identification parade was held after 10 days and prior to that photographs of accused were taken and published in newspaper — Purported test identification parade lost all significance in the fact situation — PW1 for 1st time stated before Court that he had known accused long before — Conviction should not be based on vague identification — Appellant’s identity could not be said to be properly established and he was entitled to benefit of doubt.

       Held : 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 the 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. (Para 16)

       It is no doubt true that the substantive evidence of identification of an accused is the one made in the court. A judgment of conviction can be arrived at even if no test identification parade has been held. But when a First Information Report has been lodged against unknown persons, a test identification parade in terms of Section 9 of the Evidence Act, is held for the purpose of testing the veracity of the witness in regard to his capability of identifying persons who were unknown to him. The witnesses were not very sure as to whether they had seen the appellant before. Had the accused been known, their identity would have been disclosed in the First Information Report. PW-1 for the first time before the court stated that he had known the accused from long before, but did not know their names earlier, although he came to know of their names at a later point of time. (Para 17)

       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 concerned witnesses or with reference to the photographs published in the newspaper. A conviction should not be based on a vague identification. (Para 18)

       We have noticed hereinbefore that the appellant herein was not named in the First Information Report. The fact that he had some identification marks had not been disclosed in the F.I.R. The purpose of preparing the inquest report is only to notice as to whether the murder committed was homicidal in nature or not and not for making a note in regard to identification marks of the accused. (Paras 24)

       The manner in which the occurrence took place as well as the conduct of the prosecution witnesses as discussed hereinbefore do not lead to an inference that the appellant has properly been identified. He is, in our opinion, at least entitled to benefit of doubt. (Paras 25)

       For the reasons aforementioned, the impugned judgment cannot be sustained, which is set aside accordingly. (Paras 26)

       (ii) Evidence Act, 1872 — Section 9 — Test identification parade — When FIR is lodged against unknown person, a test identification parade is held for testing veracity of witness in regard to his capability of identifying person — Holding of a test identification parade after a long time will loose its significance. (Paras 17 and 20)