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SUPREME COURT OF INDIA
B.R. GAVAI, PAMIDIGHANTAM SRI NARASIMHA, JJ.
Gireesan Nair and Others – Appellants
Versus
State of Kerala – Respondent
Criminal Appeal Nos. 1864-1865 of 2010
Decided On : 11-11-2022
(A) Prevention of Damages to Public Property Act, 1984 – Sections 3(2)(e) – Indian Penal Code, 1860 – Sections 143, 147 and 148 read with Section 149 – Damage caused to public property – Conviction and sentence – Eyewitnesses questioned by prosecution did not give out names or identities of Accused participating in riot and involved in destruction of public property – Last witness relied upon by prosecution to prove charge of destruction of public property turned hostile – Witnesses had opportunity of seeing accused before conduct of TIP – TIP was a mere formality and no value could be attached to it – As only evidence for convicting appellants is evidence of eyewitnesses in TIP and when TIP is vitiated, conviction
cannot be upheld – Appellants acquitted of all charges. (Paras 25, 40, 44, 45, 56, 57 and 58)
(B) Indian Evidence Act, 1872 – Section 9 – Test Identification Parade (TIP) – TIPs belong to stage of investigation by Police – It assures that investigation is proceeding in right direction – It is a rule of prudence which is required to be followed in cases where accused is not known to witness or complainant – However, it is not a substantive piece of evidence – Instead, it is used to corroborate evidence given by witnesses before a court of law at the time of trial – TIPs, even if held, cannot be considered in all cases as trustworthy evidence on which conviction of accused can be sustained. (Para 26)
(C) Indian Evidence Act, 1872 – Section 9 – Criminal Procedure Code, 1973 – Section 162 – Test Identification Parade (TIP) – It is a matter of great importance both for investigating agency and for accused and a fortiori for proper administration of justice that a TIP is held without avoidable and unreasonable delay after arrest of accused – If identification in TIP has taken place after accused is shown to witnesses, then not only is evidence of TIP inadmissible, even identification in a court during trial is meaningless – Even a TIP conducted in presence of a police officer is inadmissible in light of Section 162 of Cr.P.C. – It is significant to maintain a healthy ratio between suspects and non-suspects during TIP – It is for prosecution to prove that a TIP was conducted in a fair manner and that all necessary measures and precautions were taken before conducting TIP – Burden is not on defence. (Paras 27, 29, 30 and 31)
Facts of the case:
Present appeals are directed against the judgment of High Court of Kerala upholding conviction of Accused Nos. 17, 9-12, 14, 16 and 18 under Sections 143, 147, 148 of Indian Penal Code, 1860, and Sections 3(2)(e) of Prevention of Damages to Public Property Act, 1984, read with Section 149 of the IPC. Sentence of four years of rigorous imprisonment and fine of Rs. 10,000/- , as imposed by Trial Court, was also upheld by High Court.
Findings of Court:
Trial Court as well as High Court have committed serious error in relying on the evidence of TIP witnesses for convicting and sentencing the Appellants. Conviction and sentencing are not sustainable. In view of these lapses on the part of prosecution, it is not necessary to consider various other grounds raised by the Appellants.
Result : Criminal Appeals allowed.
JUDGMENT :
PAMIDIGHANTAM SRI NARASIMHA, J.
1. These appeals are directed 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 [hereinafter referred to as ‘the IPC’] and Sections 3(2)(e) of Prevention of Damages to Public Property Act, 19842 [hereinafter referred to as ‘the PDPP Act’] 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 [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], 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 officials were harsh and several protesters, including girl students, were injured. To avenge the police atrocity, it is alleged that Accused Nos. 1-2 and 25-33 hatched 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 [hereinafter referred to as ‘the KSRTC’]. 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 of one 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 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 was handed 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. After concluding 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 two Test 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 Parade5 [hereinafter referred to
(1) Test Identification Parade (TIP) – TIPs, even if held, cannot be considered in all cases as trustworthy evidence on which conviction of accused can be sustained.(2) TIP conducted in presence of a....
The main legal point established in the judgment is the unreliability of witness identification and the importance of a fair and proper Test Identification Parade (TIP) in corroborating witness testi....
Murder and disappearance of evidence – Reliance cannot be placed on such a TIP which is full of lacuna.
The absence of a Test Identification Parade (TIP) undermines the reliability of dock identification, making it insufficient for conviction in acquittal appeals.
Identification parade compromised by prior exposure to witnesses renders conviction invalid.
The central legal point established in the judgment is the importance of reliable eyewitness identification, the admissibility of recovery evidence, and the obligation to disclose crucial reports in ....
The TIP conducted by the prosecution must be in accordance with the law, and the recovery of evidence must be of substantial value to establish guilt beyond reasonable doubt.
In criminal trials, the prosecution must prove guilt beyond reasonable doubt; delays in Test Identification Parades do not automatically invalidate witness identifications if proper safeguards are ma....
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