IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 1852 of 2008  

Siddanki Ram Reddy              …… Appellant

Versus

State of Andhra Pradesh                                 …… Respondent

J U D G M E N T

A.K. PATNAIK, J.

This  is  a  Criminal  Appeal  against  the  judgment  dated  

July 4, 2008 of the High Court of Andhra Pradesh in Criminal  

Appeal No. 147 of 2006.  

2. The facts very briefly are that on February 28, 2005 one  

Komidi  Sai  Baba  Reddy  (deceased)  was  killed  in  the  court  

premises  of  R.R.  District  at  Cyberabad.   The  father  of  the  

deceased lodged a  First  Information Report  (FIR)  before  the  

Station  House  Officer,  P.S.  L.B.  Nagar  alleging  that  on  

February  28,  2005  at  11.00  a.m.  when  the  deceased  was

coming to the court,  Narsimha Reddy’s son, Srinivas Reddy  

and others sprinkled chilly powder in the eyes of the deceased  

and  cut  him  by  an  axe  and  all  this  was  done  due  to  old  

vengeance.   After  investigation,  a  charge  sheet  was  filed  

against  15  accused  persons  including  the  appellant  in  the  

court  of  the  Second  Metropolitan  Magistrate,  R.R.  District,  

Cyberabad.  As accused nos. 11 to 15 were absconding, the  

case was split  up and accused nos.  1 to 10 were tried for  

several charges in Sessions Case No.195 of 2005.  After the  

trial the 5th Additional Sessions Judge (FTC) acquitted accused  

nos. 2 to 10 of the charges and convicted the appellant, who  

was the accused no.1, under Section 302 of the Indian Penal  

Code,  1860  and  sentenced  him  to  undergo  Rigorous  

Imprisonment for life and to pay a fine of Rs.25,000/- and in  

default to suffer Simple Imprisonment for one year.  

3. Mr.  Sushil  Kumar,  learned  counsel  for  the  appellant,  

submitted that it  will  be clear from the evidence led by the  

prosecution that the deceased was killed in the court premises  

by a mob and there is no reliable evidence on record to show  

that it was the appellant who had killed the deceased.  He took  

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us  through  the  evidence  of  PW-1,  PW-5  and  PW-6,  who  

according to the prosecution are the eye witnesses, to show  

that none of them have been able to identify the assailant of  

the deceased.  He referred to the FIR (Ext.P1) to show that the  

appellant-Ram Reddy had not been named in the FIR lodged  

by PW-1.  He submitted that in the FIR the accused persons  

named are Narsimha Reddy’s son and Srinivas Reddy, and the  

appellant is neither Narsimha Reddy’s son nor Srinivas Reddy  

and, therefore, the evidence of PW-1 that the appellant was the  

assailant is not at all reliable.

4. He submitted that PWs 5 and 6 were police constables  

performing court duty and they did not know the appellant  

personally and yet they have deposed before the court that the  

appellant  was the assailant  of  the deceased.  He submitted  

that PW5 has stated that the appellant was wearing a  Kurta  

and  Lachi, whereas  the  Inspector  of  Police  (PW-36),  who  

arrested the appellant, has stated in his evidence that at the  

time of arrest, the appellant was neither wearing a Kurta nor a  

Lachi.   

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5. He next submitted that the Test Identification Parade was  

not at all  fair because the appellant was arrested and eight  

others had also been arrested but only the appellant and one  

other accused were produced before the witnesses in the Test  

Identification Parade before the Judicial  Magistrate  (PW-34).  

He  submitted  that  though  the  appellant  was  arrested  on  

March  9,  2005,  he  was  produced  in  the  Test  Identification  

Parade on April 23, 2005 about 54 days after the arrest and  

this  inordinate  delay  in  conducting  the  Test  Identification  

Parade has not been explained by the prosecution.   

6. He submitted that in any case in the Test Identification  

Parade PWs 1, 5 and 6 have not been able to properly identify  

the  appellant.   He  submitted  that  PW-1,  father  of  the  

deceased, has not identified the appellant at all.  He argued  

that PWs 5 and 6 had enough opportunity to see the appellant  

prior to the Test  Identification Parade and in fact  when the  

appellant  was  produced  before  the  court  alongwith  other  

accused  persons  after  the  arrest,  PW-5  was  one  of  the  

members of the police escort party and therefore he knew who  

was the accused before the Test Identification Parade.    He  

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submitted that PW-6 has stated before the Magistrate (PW-34)  

carrying out the Identification Parade that he can identify the  

appellant on the basis of a scar on the cheek, but PW-34 has  

stated in his evidence that the appellant did not actually have  

any such scar or wound mark.  

7. Mr. Sushil Kumar vehemently argued that in the absence  

of any reliable evidence to establish beyond reasonable doubt  

that it was the appellant who was the assailant amongst the  

mob in the court premises, the conviction under Section 302  

of  the  Indian  Penal  Code,  1860  cannot  be  sustained.  

According to him, this is a fit case in which the appeal should  

be  allowed  and  the  impugned  judgment  set  aside  and  the  

appellant should be acquitted.

8. Mr. Rama Krishna Reddy, learned counsel appearing for  

the State of Andhra Pradesh, on the other hand, supported the  

judgments of the trial court and the High Court. He submitted  

that the murder of the deceased took place at 11.00 a.m. in  

broad day light in the court premises during the court hours  

and in full view of the public and the evidence of PW-1 clearly  

establishes  that  the  appellant  killed  the  deceased  out  of  

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revenge  because  the  appellant’s  brother-in-law,  Narsimha  

Reddy, had been killed on September 22, 2004.  He submitted  

that the contention on behalf of the appellant that he is not  

named in the FIR by PW-1 is not correct.  He submitted that in  

the  FIR  [Ex.P1]  the  brother-in-law  of  Narsimha  Reddy  was  

named  as  one  of  the  accused  and  in  the  confessional  

statement of the appellant [Ex.P20] recorded by the Inspector  

of  Police  (PW-36)  the appellant  has admitted that he is  the  

brother-in-law of Narsimha Reddy.  He further submitted that  

pursuant to the confession,  the axe with which the murder  

was committed (M.O.-1) was also recovered.  

9. He next submitted that the trial court and the High Court  

have relied on the evidence of PWs 5 and 6, who were none  

other  than  the  court  constables  and  who  had  chased  the  

appellant for a while after the incident.  He argued that PWs 5  

and 6 were therefore natural witnesses of the occurrence and  

they  had  no  axe  to  grind  against  the  appellant  and  their  

evidence ought to be believed.  

10. Regarding the delay in conducting the Test Identification  

Parade,  he  submitted  that  there  was  no  unusual  delay  in  

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conducting  the  Test  Identification  Parade  as  the  appellant  

alongwith  eight  others  were  arrested  on  9/10 March,  2005  

and were produced before the Magistrate on March 11, 2005  

and thereafter on April 7, 2005 a requisition was made by the  

Inspector  of  Police  (PW-36)  for  conducting  the  Test  

Identification  Parade  and  on  April  23,  2005  the  Test  

Identification Parade  was conducted by the  Magistrate.   He  

submitted  that  in  any  case  the  defence  has  not  put  any  

question  to  Investigation  Officer  (PW-36)  seeking  his  

explanation for the delay, if any.  

11. Mr. Reddy cited State of Maharashtra v. Suresh  [(2000) 1  

SCC 471]  wherein  this  Court  has observed that  if  potholes  

were to be ferreted out from the proceedings of the Magistrates  

holding  Test  Identification  Parades  then  possibly  no  Test  

Identification Parade can escape from one or two lapses and  

Test Identification Parades would become unusable.  He also  

relied on Daya Singh v. State of Haryana [(2001) 3 SCC 468] in  

which this  Court  has held that a Test  Identification Parade  

held 7 to 8 years after the incident was not vitiated where an  

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enduring impression of the identity of the accused was gained  

during the incident.

12. He submitted that this Court has held in Mohd. Aslam v.  

State  of  Maharashtra [(2001)  9  SCC  362]  that  where  the  

testimony  of  an  eye  witness  is  supported  by  another  eye  

witness with regard to the occurrence as well as the role of the  

accused in the occurrence, minor lapses, if any, in the conduct  

of  the  Test  Identification  Parade,  cannot  be  a  reason  for  

acquitting  the  accused.   He  submitted  that  in  the  present  

case,  PWs  1,  5  and  6,  who  were  eye  witnesses  to  the  

occurrence,  have  clearly  spoken  about  the  attack  by  the  

appellant on the deceased and their evidence is corroborated  

by the evidence of other witnesses including PWs 34 and 36.  

According to him, this is not a fit  case in which this Court  

should interfere with the concurrent findings of the trial court  

and the High Court holding the appellant guilty of the offence  

punishable under Section 302 of the Indian Penal Code, 1860.  

13. The first witness on whom the High Court has relied on  

to convict the appellant is PW-1, the father of the deceased.  

The evidence of  PW-1 is that on 28.02.2005 a case against his  

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son and Sridevi was posted in the 2nd Metropolitan Magistrate  

Court and he had gone along with his son and Sridevi to the  

court premises and they attended the court as soon as the  

case was called and came out of the court at about 11.00 a.m.  

and  at  that  time  Narsing  Yadav,  accused  No.2,  who  was  

standing at the flag-post, sprayed chilly powder into their eyes  

and while his deceased son was trying to obliterate the chilly  

powder from his face, the accused No.1  (the appellant) chased  

him with an axe and he ran after the appellant and when the  

deceased came to the corridor of the court, he bent his head to  

a side to save from the blow of the axe, due to which that blow  

was received by another person.  Thereafter, the deceased took  

a turn to the left towards the 2nd Additional District Judge’s  

Court and the chappal of the deceased slipped in that process  

and  he  bent  and  immediately  the  appellant  hacked  the  

deceased  on  left  side  of  the  neck.   On  seeing  PW-1,  the  

accused No.1 raised the axe but PW-1 went a little bit back  

and then the appellant hacked the deceased three times on  

the left side of the neck and near the ear.  PW-1 has further  

stated that this took place in the corridor of the Court Hall of  

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2nd Additional  District  Judge’s  Court.   The  appellant  then  

started ringing the axe in the air showing threatening gestures  

so as to cause terror and create fear in the mind of the people  

and although an advocate tried to catch the appellant he could  

not catch him and the appellant jumped the compound wall of  

the court opposite to the main entrance and went away.   

14. The evidence of PW-1 naming the appellant Ram Reddy  

as the assailant of the deceased is not reliable because though  

PW-1  has  stated  that  he  knew  that  accused  No.1  (the  

appellant) was the brother-in-law of Narsimha Reddy and that  

his  name  was  Ram  Reddy,  in  the  FIR  (Ex.P-1)  which  was  

lodged in less than an hour after the incident at about 11.45  

a.m. he has not mentioned the name of the appellant as Ram  

Reddy.  The evidence of the Investigation Officer (PW-36) also  

is that PW-1 did not state the name of the appellant as Ram  

Reddy before him at the time of the inquest.  If PW-1 knew the  

appellant  as  Ram Reddy  at  the  time  of  the  occurrence,  he  

would have named Ram Reddy in the FIR (Ex.P1) which he  

lodged within an hour of  the  incident  and would have  also  

named him as the assailant  before  the  Investigation Officer  

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(PW-36)  The omission on the part of PW-1 not to mention the  

name of appellant as Ram Reddy in the FIR (Ex.P1) before the  

Investigation Officer soon after the incident or at the time of  

inquest is relevant for deciding whether the evidence of PW-1  

that the appellant was the assailant is reliable.  In Ram Kumar  

Pandey v.  State of Madhya Pradesh [(1975) 3 SCC 815] cited  

by Mr. Sushil Kumar, this Court has held that omissions of  

important  facts  in  the  FIR affecting  the  probabilities  of  the  

case  are  relevant  under  Section  11  of  the  Evidence  Act  in  

judging the veracity of the prosecution case.  In that case, the  

omission to mention any injury inflicted on Harbinder Singh  

by the appellant in the FIR was held to be very significant in  

the circumstances of the case.   

15. Moreover, it appears that PW-1 did not actually know the  

appellant  at  the  time  of  the  incident  and therefore  did  not  

name  the  appellant  in  the  FIR  (Ex.P-1).   The  Investigation  

Officer (PW-36) has stated in his evidence that PW-1 did not  

know the accused previously and therefore he requested the  

inclusion of PW-1 in the Test Identification Parade.  In the Test  

Identification Parade, PW-1 could not identify any person as  

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the assailant of the deceased. The evidence of the Magistrate  

(PW-34), who conducted the Test Identification Parade, is that  

PW-1  did  not  state  before  him  that  he  can  identify  the  

appellant-Ram  Reddy.  The  proceedings  of  the  Test  

Identification  Parade  (Ex.P64)  show  that  PW-1  has  not  

identified any of the suspects.  The version given by PW-1 in  

the witness box that the appellant was the assailant  of the  

deceased  appears  to  be  based  on  his  suspicion  that  the  

appellant out of grudge may have killed the deceased.  This  

suspicion of PW-1 is borne out by his own testimony to the  

effect that Ram Reddy (accused No.1) is the brother-in-law of  

the deceased Narsimha Reddy and bearing grudge in regard to  

his brother-in-law being killed accused No.1 has done this.

16. The next eye-witness on which the High Court has placed  

reliance is PW-5.  His evidence is that he was working as a  

police  constable  in  L.B.  Nagar  P.S.  since  11.06.2001.   On  

28.02.2005, he was on court duty working as court constable  

in the court of the 2nd Metropolitan Magistrate and he came to  

the court at about 10.00 a.m. or 10.30 a.m.  At about 11.00  

a.m. he was at the front of the entrance of the court and he  

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saw people  running into the  court building towards the  2nd  

A.D.J., court.  He saw a person with white kurta and pajama  

running to the court building chasing another person in white  

clothes and the person with white  kurta and pajama hacking  

the person in front of him with an axe on his neck near the 2nd  

A.D.J. Court Hall and after hacking the assailant was running  

out through the main entrance towards the compound wall  

and  then  he  and  Mahender  (PW-4),  who  was  an  advocate,  

chased the assailant  but the assailant  ran and went to the  

motorcycle on the other side of the compound wall.  Mahender  

(PW-4) threw a stone on the assailant which hit him on the  

back and then he returned to the 2nd A.D.J. Court Hall where  

he saw the victim lying on the ground with faint breathing.  

While  giving  his  evidence  PW-5  pointed  out  towards  the  

appellant who was standing in the Court Hall and identified  

him as the assailant.

17. PW-5, who was a constable attending to his duties in the  

court,  was  not  expected  to  know  the  appellant  before  the  

incident,  but  he  claims  to  have  seen  the  appellant  on  

28.02.2005 when he attacked the deceased by an axe.  He was  

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summoned  to  Cherlapally  Jail  for  the  Test  Identification  

Parade and he has identified the appellant as the assailant  

during  the  Test  Identification  Parade.   If  PW-5  saw  the  

appellant for the first time in the Test Identification Parade on  

23.04.2005  his  evidence  would  have  been  trustworthy.  His  

evidence, however, is that he was present when the accused  

No.1 (the appellant) and other accused persons were produced  

for remand in the court on 11.03.2005 and he therefore knew  

the physical features of appellant on 11.03.2005.  It is thus  

clear that when the Test Identification Parade took place on  

23.04.2005, PW-5 had not only seen the appellant but also  

had  knowledge  that  the  appellant  was  the  accused  in  the  

murder which took place in the court premises on 28.02.2005.

18. In Lal Singh & Ors. v. State of U. P. [(2003) 12 SCC 554]  

cited by Mr. Sushil Kumar, this Court has held that the Court  

has to rule out the possibility  of the witnesses having been  

shown to  the  witnesses  before  holding  a  Test  Identification  

Parade.  In fact, in State of Maharashtra v. Suresh  cited by Mr.  

Reddy, this Court has noted that all precautions were taken  

that the witnesses could not see the suspect during transit  

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from the lock-up to the place for Test of Identification Parade.  

But as we have seen, PW-5 had already seen the appellant in  

court on 11.03.2005  and already knew that the appellant was  

the  accused  when  the  Test  Identification  Parade  was  

conducted  on  23.04.2005.   The  evidence  of  PW-5  that  the  

appellant was the assailant is, therefore, not reliable.

19. The last eye witness on whom the High Court has relied  

upon is PW-6.  His evidence is that on 28.02.2005 he came to  

court  by  10.30  a.m.  and  attended  the  J.F.C.M.,  East  and  

North, and at about 11.00 a.m. he went to the section of 2nd  

A.D.J. court on some work and was returning when he saw a  

person armed with an axe coming from the main entrance side  

towards the 2nd A.D.J. Court Hall and he hacked the person  

whom he was chasing with the axe on his neck.   The victim  

collapsed to the ground and he and a civilian by the name  

Kumar tried to catch hold of the assailant, but the assailant  

by ringing the axe around terrorised everyone and created fear  

in the mind of the people.  The further evidence of PW-6 is that  

when the assailant gave a blow he bent to the aside and then  

the  assailant  went  through  the  main  entrance.   He  was  

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summoned  to  Cherlapally  Jail  for  the  Test  Identification  

Parade in which he identified the accused No.1 (the appellant)  

as the assailant.  It is difficult to believe the evidence of PW-6  

regarding the identification of the appellant as the assailant  

because in the Test Identification Parade he has stated that  

the  suspect  has  injury  mark  on  his  right  cheek  and  the  

Magistrate (PW-34) conducting the Test Identification Parade  

has stated in his evidence that according to his Report (Ex.  

P64) none of the two suspects had injury mark on the right  

cheek.   

20. This Court has held in  Daya Singh v.  State of Haryana  

(supra)  cited  by  Mr.  Reddy  that  the  purpose  of  test  

identification is to have corroboration to the evidence of the  

eye witnesses in the form of earlier identification and that the  

substantive evidence of a witness is the evidence in the Court  

and if  that evidence is found to be reliable then absence of  

corroboration by test identification would not be in any way  

material.  In the facts of the present case, a mob attacked the  

deceased  in  the  crowded  corridors  of  the  court  of  the  2nd  

Additional District Judge and PW-1, PW-5 and PW-6 in their  

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evidence  in  the  court  claim to  have  seen the accused No.1  

(appellant) chasing the deceased with an axe and assaulting  

the  deceased  with  axe  on  his  neck.   All  these  three  eye  

witnesses  have  also  stated  that  soon  after  the  assault  the  

appellant ran away from the court premises.  The three eye  

witnesses thus saw the assailant for a very short time when he  

assaulted the deceased with the axe and thereafter when he  

made his escape from the court premises. When an attack is  

made on the assailant by a mob in a crowded place and the  

eye  witnesses  had  little  time  to  see  the  accused,  the  

substantive evidence should be sufficiently corroborated by a  

test identification parade held soon after the occurrence and  

any delay in holding the test identification parade may be held  

to be fatal to the prosecution case.  In Lal Singh & Ors. v. State   

of U. P. , this Court has held that where the witness had only a  

fleeting glimpse of the accused at the time of occurrence, delay  

in  holding  a  test  identification  parade  has  to  be  viewed  

seriously.   

21. Further,  the test  identification parade in this case has  

not been fair to the appellant.  Although eight suspects were  

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arrested,  only  the  appellant  and  one  other  were  produced  

before the witnesses at the Test Identification Parade.   This  

gives room for a lot of doubt on the case of the prosecution  

that none other than the appellant was the assailant.  In State   

of  Maharashtra v.  Suresh  (supra),  on  which  reliance  was  

placed by Mr. Reddy, the Court found that the suspect was  

permitted to stand anywhere among seven persons and the  

witnesses were then asked to identify the person whom they  

saw on the crucial day and on these facts this Court held that  

the test identification parade was conducted in a reasonably  

foolproof  manner.   This  is  not  what  has  been  done  in  the  

present  case  and,  therefore,  the  corroboration  of  the  

substantive evidence of PWs 1, 5 and 6 on the identification of  

the  suspect  by  the  test  identification  parade  is  not  

trustworthy.     

22. It is true, as has been submitted by Mr. Reddy, that both  

the trial court and the High Court have arrived at concurrent  

findings on the basis of the evidence of PWs 1, 5, 6 and other  

witnesses that the appellant was the assailant of the deceased  

and that concurrent findings of fact arrived at on the basis of  

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evidence  by  the  trial  court  and  the  High  Court  are  not  

normally interfered with by this Court in appeal.  But as has  

been held by this Court in A. Subair v. State of Kerala [(2009) 6  

SCC 587], when the evidence produced by the prosecution has  

neither  quality  nor  credibility,  it  would  be  unsafe  to  rest  

conviction  upon  such  evidence  and  the  judgments  of  the  

courts below will have to be interfered with.  This Court has  

also held in Mankamma v. State of Kerala [(2009) 10 SCC 164]  

that ordinarily this Court does not interfere in a matter by re-

appreciating  the  evidence  but  when  it  is  found  that  the  

evidence  has  been  appreciated  by  the  High  Court  in  a  

mechanical manner and without proper consideration of facts  

and  circumstances  on  record,  this  Court  will  have  to  re-

appreciate the evidence in the interest of justice.  This is one  

such case in which both the trial court and the High Court  

have mechanically relied on the evidence of PWs 1, 5 and 6  

that it was the appellant who had attacked the deceased with  

an axe in the court premises without appreciating that it was  

unsafe to rest conviction upon the evidence of PWs 1, 5 and 6  

with regard to the identification of the assailant.  

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23. In  the  result,  we  allow  this  appeal  and  set-aside  the  

impugned judgments of the High Court and the trial court and  

direct  that  the  appellant,  who  is  in  custody,  be  released  

forthwith if not required in any other case.

……………………..J.                                                                   (R. M. Lodha)

……………………..J.                                                                   (A. K. Patnaik) New Delhi, July 27, 2010.    

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