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CASE NO.: Appeal (crl.)  636 of 2007

PETITIONER: Ravi @ Ravichandran

RESPONDENT: State Rep. by Inspector of Police

DATE OF JUDGMENT: 27/04/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T  

S.B. SINHA, J :

CRIMINAL APPEAL NO.    636            OF 2007 [Arising out of S.L.P. (Crl.) No. 6341 of 2006]

       Leave granted.

       1.      Accused No. 2 before the learned Trial Judge is the appellant  before us.  He along with one Udayakumar and three others were tried for  commission of offences punishable under Section 120-B read with Sections  302, 307, 147, 148 and 149 of the Indian Penal Code.  

       2.      The prosecution case shortly stated was as under :

               Liaqut Ali (PW-1), a school teacher, was a resident of 6th street  in TSR Layout in the town of Tirupur.  On 09.0-8.1993, at about 05.30 a.m.,   he was going to a mosque for offering the morning prayers.  He was  returning back to his house accompanied by one Rasheed (PW-2) from the  mosque.   John Basha (deceased) and Usman Ali (PW-3, the injured), were  walking ahead of them.  Saleem (PW-4) and one Mubarak were behind  them.   

       3.      When the deceased, PW-2 and PW-3 turned  towards a lane  which was on the eastern side of the house of PW-2, the appellant and  Udayakumar were seen coming from the opposite direction.  Appellant  allegedly shouted that they were the persons who had thrown the bomb at  the RSS office and started stabbing the deceased indiscriminately.  PW-3  (Usman Ali) was allegedly stabbed by Udayakumar.  When they cried for  help, the appellant allegedly  picked up a stone and dropped it  on the head  of the deceased.  Appellant and the said Udayakumar thereafter allegedly ran  away from the place of occurrence.           4.      A First Information Report was lodged against  unknown.  No  mark of identification of the accused  was also disclosed therein.   While,  however, the Investigating Officer was preparing an inquest report, the first  informant allegedly disclosed to him that he had noticed a scar on the right  hand of one of the assailants.  On or about 14.08.1993, i.e. after five days,  the appellant was arrested.  The said Udayakumar was also arrested.  Their  photographs were published in a local daily with the caption that they were  the persons who were the accused of causing murder of John Basha and  injury to PW-3.   

       5.      The said publication was made in a Tamil daily ’Dinakaran’ on  16.08.1993.  Prior thereto or immediately thereafter, the appellant and the  said Udayakumar was not put on test identification parade.  They were  put  on test identification parade only on 24.08.1993.  In the said purported  test

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identification parade, whereas PW-1 and PW-3 purported to have identified  the appellant, PW-2 and PW-4 could not identify even Accused No. 1.  

       6.      Out of the five accused persons, who not only were charged for  commission of the said offences, but also for hatching a conspiracy against  the minority community,  were put to trial.  The learned Trial Judge by a  judgment and order dated 17.09.1996 held the appellant guilty of  commission of the offence of murder of John Basha punishable under  Section 302 IPC and  convicted Udayakumar for committing an offence  punishable under Section 307 IPC; acquitted the other three accused persons.   They were, however, acquitted of other charges.   

       7.      The High Court dismissed the appeal preferred by the appellant  herein  and the said Udayakumar.

       8.      We have been taken through the First Information Report as  also the depositions of the so-called eye-witnesses.  The nature and purport  of the evidence of all the eye-witnesses are almost similar.   

       9.      We may at the outset notice the evidence of the first informant  (PW-1).  According to him, the appellant and the said Udayakumar had been  running towards John Basha (deceased) and Usman Ali (PW-3) from about a  distance of 15 feet from them.  According to him, nobody shouted  when the  first injury was inflicted.  Apart from those two, he stated, nobody else was  touched.  He stated that he been knowing the accused persons from before as  also their names, but  then  stated  that  he did not know the same at that  time.  According to him, he had mentioned in the First Information Report  about the scar which he had noticed on the right hand of the appellant, but  the First Information Report does not show it. He accepted that the  photographs of the appellant and the said Udayakumar had appeared in the  newspaper that they had committed the murder of John Basha.   

       10.     PW-2 even could not remember as to whether he had identified  the appellant on the basis of scar mark.  PW-3 allegedly had disclosed the  mark of identification.  His statement must have been taken after the inquest  report was made.  PW-4  even could not say whether he had seen the  appellant and the said Udayakumar prior to the date of occurrence.  But still  then according to him their faces were known.  He could not even recollect  as to whether he had stated about the said identification mark to anybody  else.   

       11.     Photograph of the deceased  which had been published in Tamil  daily ’Dinakaran’ was proved by one King Kong, who examined himself as  DW-1.  He pursuant to the summons issued to him had brought with him a  copy of the newspaper dated 16.08.1993.  He in his deposition stated that in  the fourth page of the newspaper, two photographs were published showing  the persons connected with Tirupur murder case.  Their names were also  disclosed therein as Udayakumar and Ravi.  He was not even  cross- examined.

       12.     The High Court by a curious process of reasoning opined that  as the DW-1 did not whisper a word that the photographs published in the  newspaper were those of the photographs of the appellant and the said  Udayakumar and as he had not been asked to identify them in court, his  evidence was not admissible in law.   

       13.     Objections were taken by the accused that their photographs  had been taken in the police station.  It has further been accepted that  whereas the  Accused No. 1 was short in stature, the appellant was tall.  The  age of the persons who had been selected for test identification parade had  not been noted by the Magistrate, who conducted the test identification  parade.  No person having similar scar mark on his hand was put on the test  identification parade.   

       14.     PW-2, who had come to identify after the first witness was sent

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to the same place.  Where PW-1 was sent immediately after the test  identification parade, chance of their disclosure about the appellant to PW-3  and others cannot be ruled out.   He had  identified one Raju, who was not  connected with the case.  Similarly, Usman Ali (PW-3) had identified one  Arun who was not involved in the case.  He in the second and third  identification had identified one Raju, apart from the said Arun, who was  again not connected with the case.

       15.     Mr. R. Sundaravaradan, learned Senior Counsel appearing on  behalf of the State, however, would submit that  identification of the  prisoners in  court only  is the substantive  evidence and the High Court was  correct in its approach in rendering its opinion on the said basis.  It was  furthermore submitted that DW-1 was merely a hearsay witness.

       16.     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.   

       17.     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.   

       18.     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 pub lished in  the newspaper.  A conviction should not be based on a vague identification.

       19.     In Suryamoorthi and Another v. Govindaswamy and Others  [(1989) 3 SCC 24], this Court held : "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\005"  

       20.     Holding of a test identification parade after a long time  particularly when their photographs were published has also been  commented upon by this Court in Acharaparambath Pradeepan & Anr.  v.  State of Kerala [2006 (13) SCALE 600], stating :         "Descriptions of a few persons were given in the

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statements of the child witnesses.  Except A1, however,  they were not arrested.  The reason for their being not  arrested had not been disclosed.  They were arrested, as  noticed hereinbefore, on 6.03.2000 only after their names  were disclosed by PWs 7 and 8.  Test Identification  Parade of the accused persons, other than A1, was held  on 4.04.2000.  Why the Investigating Officer took such a  long time for arranging a test identification parade has  not been disclosed.  Furthermore, A3 was not identified.   A6 was present when the first Test Identification Parade  was taken but he had not been identified by any of the  witnesses.   

       We are not impressed with the purported  explanation in regard to the holding of test identification  parade.  Identification of the said accused by the child  witnesses, having regard to the facts and circumstances  of the case lead us to a definite conclusion that they were  the only persons who participated in the commission of  the offence.

       They are entitled to benefit of doubt.  There had  been great delay in conducting the Test Identification  Parade.  Undue delay has also occurred in recording the  statements of PWs 7 and 8."                   21.     Reliance placed by Mr. Sundaravaradan on Samant N.  Balakrishna etc. v. George Fernandez    and Others etc. [AIR 1969 SC 1201]  in regard to evidentiary value of a news item published in a newspaper is  misplaced.  Therein a news item was published in an election dispute in  regard to a matter in respect of  which there was no primary evidence, and,  thus, it was held to be secondary evidence, stating :   "\005A news item without any further proof of what had  actually happened through witnesses is of no value. It is  at best a second-hand secondary evidence. It is well- known that reporters collect information and pass it on to  the editor who edits the news item and then publishes it.  In this process the truth might get perverted or garbled.  Such news items cannot be said to prove themselves  although they may be taken into account with other  evidence if the other evidence is forcible\005."

[See also S.A. Khan v. Ch. Bhajan Lal and Another \026 (1993) (3) SCC 151]       

       22.     We are not concerned with the speech made by a person, the  authenticity or correctness whereof  published in the newspaper is in dispute.   We have seen the newspaper cutting.   Photographs of the two accused have  been shown;  their names as accused had also been disclosed.           23.     Publication of the news item with photographs  has clearly been  proved by DW-1.  Prosecution witnesses, as noticed hereinbefore,  accepted  the said fact.  It was, therefore, wholly unnecessary for DW-1 to identify the  accused persons in dock.  Not only the authenticity of such publication has  not been questioned by the prosecution, DW-1, was not cross-examined at  all.  It was for the prosecution as also the Presiding Officer of the court to  verify the identification of the accused with reference to  the said  photographs.  It was not necessary for the appellant to prove the same.         24.     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.         25.     The manner in which the occurrence took place as well as the  conduct of the prosecution witnesses as discussed hereinbefore do not lead

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to an inference  that the appellant has properly been identified.  He is, in our  opinion, at least entitled to benefit of doubt.         26.     For the reasons aforementioned, the impugned judgment cannot  be sustained, which is set aside accordingly.  The  appeal is allowed.    The  appellant shall be released forthwith, if not required in any other case.