PETITIONER:
BOLLAVARAM PEDDA NARSI REDDY AND ORS.
Vs.
RESPONDENT:
STATE OF ANDHRA PRADESH
DATE OF JUDGMENT07/05/1991
BENCH:
FATHIMA BEEVI, M. (J)
BENCH:
FATHIMA BEEVI, M. (J)
KULDIP SINGH (J)
CITATION:
1991 AIR 1468 1991 SCR (2) 723
1991 SCC (3) 434 1991 SCALE (1)909
ACT:
Supreme Court (Enlargement of Criminal Apellate
Jurisdiction) Act, 1970: Section 2.
Indian Penal Code 1860: Section 302 and 149.
Criminal Law-Murder-Identification of accused-
Circumstances showing that eye-witnesses did not have the
opportunity to identify the accused-Rejection of testimony
of witnesses and acquittal by trial court-Appeal against
acquittal by the State-Power of appellate court to reapraise
and evaluate evidence-Reversal of acquittal order and
conviction of accused by appellate court held not justified.
Indian Evidence Act, 1872: Section 9.
Test Identification Parades-Mixing of persons know to
accused with witnesses-Effect of.
HEADNOTE:
The appellants (A-1 to A-3 and A-5-6), along with Co-
accused (A-4), were prosecuted under sections 302/149 of the
Indian Penal Code. Test identification parades were
conducted by the Magistrates in which A-6 was identified by
PWs 1, 2, 3 and 4 and A -1, 2,3,and 5 were identified by PWs
1 and 2. The trial court held that the identification
parade was perfunctory and was of no assistance to the
prosecution. It also rejected the testimony of PWs 1 to 5 by
holding that the evidence of PWs 3, 4, and 5 was untrust-
worthy and that it was unsafe to accept the testimony of
other two eye-witnesses, PWs 1 and 2 for recording a
conviction. Accordingly the trial court acquitted all the
accused persons. Against the order of acquittal, the State
preferred an appeal before the High Court. The High Court
accepted the testimony of PWs 1 and 2, corroborated by the
evidence of test identification parade and the testimony
of PWs 3 and 4 to find the appellants guilty. Accordingly
the High Court reversed the order of acquittal and
convicted the appellants. Since A-4 was not identified by
the PWs 1 to 4, he was given the benefit of doubt and the
High Court confirmed his acquittal.
724
In appeal to this court under section 2 of the Supreme
Court (Enlargement of Criminal Appellate Jurisdiction) Act,
1970, it was contended on behalf of the appellants that PWs
(1 and 2) were strangers to the assailants and in the
circumstances of the case they did not have the opportunity
to identify the assailants and consequently their testimony
was not free from doubt; the trial court was right in
rejecting the testimony of these witnesses but the High
Court erred in reversing the order of acquittal and
convicting the appellants by accepting the testimony of
these witnesses.
Allowing the appeal and setting aside the order of
conviction and sentence, this Court,
HELD: 1.It is open to Supreme Court to re-examine
the evidence for the purpose of satisfying itself whether
the High Court was justified in reversing the order of
acquittal in the facts and circumstances of the case. In an
appeal against acquittal, the Appellate Court is empowered
to evaluate the evidence and arrive at its own conclusion.
But where the view taken by the trial court on an
appreciation of the evidence is also a plausible view, the
Appellate Court shall be slow to interfere with it even
when a different view is possible on a reappraisal of the
evidence. [728F-G]
1.1 Even when two evenly balanced views of the evidence
are possible one must necessarily concede the existence of a
reasonable doubt. [731F]
2.The evidence given by the witnesses before the Court
is the substantive evidence. In a case where the witness
is a stranger to the accused and he identifies the accused
person before the court for the first time, the court will
not ordinarily accept that identification as conclusive.
It is to lend assurance to the testimony of the witnesses
that evidence in the form of an earlier identification is
tendered. If the accused persons are got identified by the
witness soon after their arrest and such identification does
not suffer from any infirmity that circumstance lends
corroboration to the evidence give by the witness before the
Court. But in a case where the evidence before the court is
itself shaky, the identification before the magistrate would
be of no assistance to the prosecution. [729D-E]
2.1 The credibility of the evidence relating to the
identification depends largely on the opportunity the
witness had to observe the assailants when the crime was
committed and memorize the impression.
725
In the instant case at the scene of the crime when no
natural light was available and the street light was at a
distance it is unlikely that the eye witnesses by momentary
glance of the assailants who surrounded the victim had a
lasting impression and the chance of identifying the
assailants without mistake. Therefore the testimony of PWs
1 and 2 is unsafe to be acted upon. The overall view of the
evidence taken by the Trial Court is reasonable and
plausible. The High Court was not justified in interfering
with the order of acquittal when the identity and
involvement of the appellant was not established beyond
reasonable doubt.[731A-B, E-F-G, 730H]
3. Value of identification parade depends on
the effectiveness and the precautions taken against the
identifying witness having an opportunity of seeing the
persons to be identified before they are paraded with
others and also against the identifying witness being
provided by the investigating authority with other unfair
aid or assistance so as to facilitate the identification of
the accused concerned. When persons who have already known
the accused persons to be identified are mixed up with the
witnesses the test identification is clearly vitiated and is
futile. In the instant case the magistrates in conducting
the test identification parade have committed a grave error
because in the case of Accused No. 6 he had mixed up along
with PWs 1 and 2 a person known to the accused. Similarly,
in the identification of the other accused, PW-4 who claimed
acquitance with Accused Nos. 2, 3 and 5 was mixed up with
PWs 1 and 2. [731C-E]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
194 of 1979.
From the Judgment and Order dated 4.7.1978 of the
Andhra Pradesh High Court in Crl. A. No. 576 of 1977.
K. Madhava Reddy, and G. Narasimhulu for the
Appellants.
B. Parthasarthi for the Respondent.
The Judgment of the Court was delivered by
FATHIMA BEEVI, J. The appellants are Bollavaram Pedda
Narsi Reddy (A -1), Bollavaram Chinna Narsi Reddy (A-2),
Kavalakuntla Rama Subba Reddy (A-3), Duddula Venkata Subba
Reddy (A-5) and Mala Prakasam (A-6) before this Court.
These appellants along with accused No. 4 Duddela Ramana
Reddy, were tried for the
726
murder of one Chandrasekhara Reddy on the night of August
15, 1974. The trial court acquitted all the accused. On
appeal by the State, the High Court convicted these
appellants under sections 302 read with 149, I.P.C., and
sentenced them to undergo imprisonment for life and also
imposed short-term imprisonment for minor offence to run
concurrently.
Chandrasekhara Reddy, the deceased, and the accused
were residents of village Jeereddy Kotharpallai. In
1970, Accused No. 3 was elected as a Sarpanch of the
village with active support of the deceased. However,
differences arose between them as they supported rival
groups in the election in the neighbouring village. 10 days
before the incident, the deceased is stated to have openly
declared that he would get Accused-3 removed by moving a no
confidence motion. This according to the prosecution is the
motive for the crime.
On the date of occurrence, Chandrasekhara Reddy met PW-
1 (Guddeti Balaveera Reddy) and PW-2 (Donthireddi Subba
Reddy) in the hotel of Subbamma (PW-8) in the neighbouring
village Proddatur. The deceased along with the two witnesses
attended a cinema show at Anwar Talkies. They came out of
the theatre 10 minutes earlier around 9.30 P.M. and were
walking along the road towards the bus stand. When they
reached near the old telephone exchange about 50 metres away
from Anwar Talkies, there was an explosion of crackers.
The accused persons suddenly surrounded the deceased. They
were armed with daggers. They attacked him after one of
them pushing aside PW-1. PW-1 fell on the barbed wire fence
of the transformer and received scratches on his thigh. The
deceased was stabbed indiscriminately and simultaneously by
all the assailants who retreated in two different directions
and the deceased died on the spot instantaneously. Besides
PWs 1 and 2, who witnessed the occurrence, PW-3 Donthireddi
Narayana Reddy, and PW-4 Poreddi Subba Reddy. had also seen
the attack. These witnesses were passing along the road.PW-
5, Mekkamalla Balireddi, reached the scene attracted by the
crowd and had seen the accused persons running away. The
street light besides the electric light at a petrol bunk and
the light in the bunk on the side of the road were burning
at the time of the occurrence. The assailants had been
identified by the witnesses in that light. The assailants
were strangers to the PWs 1 and 2 but A-2, 3 and 5 were
known to PWs 3 and 4 and 5 who had also acquaintance with
the deceased PW-5 informed PW-7 (Polagiri Siva Reddy), the
brother of the deceased, about the occurrence, while PWs 3
and 4 left the place after seeing the deceased lying at the
scene. This in short is the prosecution case.
727
The Town Police Station is situated about two furlongs
away from the place of occurrence. PW-1 along with PW-2
went to the police station and lodged the first information
report. A crime ws registered against six unidentified
persons. PW-16 (Sri S. Khasim Sab, Sub Inspector of
Police), recorded the statement Ex. P-1. The Circle
Inspector visited the scene. PW-2 was referred to the
Medical Officer at 4 A.M. The inquest on the dead body was
held on the next morning. The post-mortem examination
revealed that deceased had sustained 54 injuries all except
one being incised wounds. At the time of the inquest, the
statements of PWs-2 and 7 were recorded. PW-7 suspected the
involvement of Accused 2, 3 and 5. On 17.8.1974, the police
dogs were pressed into service. It is stated that the
sniffer went to the village of the deceased and thereafter
to the houses of Accused 2 and 3. Statements of PWs 3, 4
and 5 were recorded on 18.8.1974. Accused No. 6 was
arrested on 25.9.1974. A test identification parade was
conducted by PW-9 (Sri G.V. Raghavaiah, Judicial Second
Class Magistrate) on 31.10.1974. A-6 was identified by PWs
1, 2, 3 and 4 at the parade as recorded in Ex. P-2
proceeding. The other accused persons were arrested on
1.11.1974. PW-10 (Sri D. Sreeramulu, Judicial Second Class
Magistrate), conducted the test identification parade in
which as per Ex. P-3 proceeding, PWs 1,and 2 identified
accused 1, 2, 3 and 5. The investigation was completed and
the charge was laid against the six persons.
The learned sessions judge analysed the prosecution
evidence meticulously and discarded the testimony of PWs 1
to 5. He considered PWs 3, 4 and 5 as chance witnesses,
found their conduct in not disclosing the involvement of the
accused persons known to them until their statements were
recorded on 18.8.1974 as suspicious and strange when they
had acquaintance with the deceased. PWs 3 and 4 when
examined by PWs 9 and 10 for the purpose of test
identification parade had given statement which vary with
their earlier statement and their evidence before court was
contradictory to their prior statements. It was, doubtful
whether they could have seen the occurrence or identified
any of the assailants. Their evidence was, therefore,
rejected as untrustworthy. The testimony of the two eye
witnesses PWs 1 and 2 who claimed that they were in the
company of the deceased at the time of the occurrence was
also not accepted by the trial court for various reasons.
They were strangers to the accused persons. Their evidence
regarding the identification of the assailants as the
accused did not impress the trial court which pointed out
that the prosecution had no consistent case regarding the
source of light at the scene that these witnesses even if
present at the scene when the assailants mounted the
728
attack on the deceased could not have remained there to
observe and memorize the features of the assailants and
identify them after a long lapse of time. PW-1 rushed to
the police station in utter confusion even without his
dhoti. The witnesses were frightened and ran away. In this
situation in the meagre light available, they could not have
identified the assailants as the accused. The learned judge
on a consideration of the medical evidence was also of the
view that the occurrence could not have happened at the time
mentioned by these witnesses and, said there were several
suspicious features which render their version doubtful.
The learned judge also pointed out that the identification
parade was perfunctory and was of no assistance to the
prosecution. The learned sessions judge analysed the entire
evidence and considered it unsafe to accept the testimony of
the two witnesses to record a conviction. In that view of
the matter, he acquitted all the accused persons.
The High Court considered the reasoning as perverse
and on a reappraisal of the evidence, took a contrary view.
In the opinion of the High Court, PWs 1 to 4 are truthful
witnesses and their evidence could be accepted. In its
view, there was no serious infirmity in the prosecution
evidence. Accordingly, the High Court accepted the
testimony of PWs 1 and 2, corroborated by the evidence of
test identification parade and the testimony of PWs 3 and 4
to find the appellants guilty. Since accused No.4 was not
identified by PWs 1 to 4, he was given the benefit of doubt
and his acquittal was confirmed.
The learned counsel for the appellants has taken us
through the entire evidence in the case. The appeal is one
under Section 2 of the Supreme Court (Enlargement of
Criminal Appellate Jurisdiction) Act, 1970. It is, no
doubt, open to this Court to re-examine the evidence for the
purpose of satisfying itself whether the High Court was
justified in reversing the order of acquittal in the facts
and circumstances of the case. It is well-settled
proposition of law that in an appeal against acquittal, the
Appellate Court is empowered to evaluate the evidence and
arrive at its own conclusion. It is equally settled law
that where the view taken by the trial court or an
appreciation of the evidence is also a plausible view, the
Appellate Court shall be slow to interfere with it even when
a different view is possible on a reappraisal of the
evidence. The learned counsel for the appellants pointed
out that the High Court in reversing the order of acquittal
in this case had departed from these established principles
and had thus erred grievously in convicting the appellants.
It was submitted that the conviction recorded by the High
Court essentially rests on the testimony of PWs 1 and 2.
When the
729
serious infirmities in the evidence of the other two eye
witnesses PWs 3 and 4 had been brought to the notice of the
High Court, it has eschewed that evidence and has placed
reliance only on the testimony of PWs 1 and 2 in arriving at
the conclusion that the appellants are guilty of the
offence. The appellants’ learned counsel, therefore,
contended that if the view taken by the trial court on
the testimony of PWs 1 and 2 cannot be characterised as
perverse or wholly unreasonable, there is no justification
for the High Court to accept that evidence as the basis of a
conviction even if in its opinion the evidence of these two
witnesses could have been relied on. The main plank of
the argument of the learned counsel is that the witnesses
being strangers to the assailants when there are
circumstances to show that they did not have the opportunity
to identify the assailants, their evidence involving these
appellants is not free from doubt and, therefore the trial
court had taken the reasonable view that it is unsafe for
the court to accept that evidence to convict the accused
persons. We see considerable force in the contention of the
learned counsel for the appellants.
The evidence given by the witnesses before the court is
the substantive evidence. In a case where the witness is a
stranger to the accused and he identifies the accused person
before the court for the first time, the court will not
ordinarily accept that identification as conclusive. It is
to lend assurance to the testimony of the witnesses that
evidence in the form of an earlier identification is
tendered. If the accused persons are got identified by the
witness soon after their arrest and such identification does
not suffer from any infirmity that circumstance lends
corroboration to the evidence given by the witness before
the court. But in a case where the evidence before the
court is itself shaky, the identification before the
magistrate would be of no assistance to the prosecution
In the present case, the appellants are admittedly
persons with whom the two witnesses had no previous
acquaintance. The occurrence happened on a dark night.
When the crime was committed during the hours of darkness
and the assailants are utter strangers to the witnesses, the
identification of the accused persons assumes great
importance. The prevailing light is a matter of crucial
significance. The necessity to have the suspects identified
by the witnesses soonafter their arrest also arises.
According to the prosecution, the attack on the deceased was
sudden and simultaneous and the assailants slipped away in
no time. Both PWs 1 and 2 had deposed that they were
attracted by the explosion and when they turned back, the
assailants surrounded the deceased and inflicted the stab
injuries. PW-1 was pushed aside.
730
He fell on the fence of the barbed wire of the transformer,
received scratches. His dhoti stuck to the wire. He left
it there and ran to the police station in utter confusion.
His P-1 does not disclose that PW-2 accompanied him, though
PWs 1 and 2 stated before court that they went together.
The possibility of the companions of the deceased having
been scattered and gone in different directions cannot be
ruled out. Even in Ex.P-1 statement what PW-1 said is that
six persons attacked the deceased; they were villagers; they
were wearing dhoti and kurta. One was about 45 years of age
and of dark complexion, another was 30 years of age lean and
yet another was also a lean person. These may be the vague
impression the witness had on seeing the assailants
suddenly. It is not however in evidence that the
description given by PW-1 in Ex. p-1 fits in with the
description of any one of the appellants. When the
magistrates recorded the statements of the witnesses, they
could not give any characteristic feature of any one of the
assailants. The entire case depends on the identification
of the appellants and the identification is founded solely
on the test identification parades.
Therefore, in the absence of cogent evidence that PWs 1
and 2 by reason of the visibility of the light at the place
of occurrence and proximity to the assailants had a clear
vision of the action of each one of the accused persons in
order that their features could get impressed in their mind
to enable them to recollect the same and identify the
assailants even after a long lapse of time, it would be
hazardous to draw the inference that the appellants are
the real assailants. There is no whisper in Ex. P-1 that
there was some source of light at the scene. The omission
cannot be ignored as insignificant. When the Investigating
Officer has visited the scene, he made reference to the
street lights, petrol bunk light etc. Whether the street
lights and the petrol bunk/ light had been burning at the
time of the occurence and the spot where the incidence
happened was so located as to receive the light emanating
from these sources are required to be made out by the
prosecution. When this significant fact is left out in the
earliest record, the improvement in the course of the
investigation and trial could be of no avail. The fact that
there had been no proof regarding the identity of the
assailants until 18.8.1974 would suggest that even persons
who collected at the scene in the course of the incidence or
soon thereafter were not in a position to identify any one
of the assailants. Since the Investigating Officer arrived
at the scene the same night and the inquest ws held in the
next morning, it would have been possible for the
investigating agency to collect information regarding the
identity of the assailants earlier to 18.8.1974, if they
had been really identified by any one of the witnesses
examined in the case. When no natural
731
light was available and the street light was at a distance
it is unlikely that the eye witnesses by momentary glance of
the assailants who surrounded the victim had a lasting
impression and the chance of identifying the assailants
without mistake. The credibility of the evidence relating
to the identification depends largely on the opportunity the
witness had to observe the assailants when the crime was
committed and memorize the impression. This aspect of the
matter had been stressed by the trial court in
appreciating the evidence of PWs 1 and 2. The High Court
has ignored the inherent infirmity and failed to deal
effectively with every important circumstance in the
evidence which weighed with the trial court to disbelieve
the prosecution case.
We have noticed that the magistrates in conducting the
test identification parade have committed a grave error. In
the case of Accused No.6 PW-9 had mixed up along with PWs 1
and 2 a person, Gulati who knew the accused. Similarly, in
the identification of the other accused, PW-4 who claimed
acquaintance with Accused Nos.2, 3 and 5 was mixed up with
PWs 1 and 2. When persons who have already known the
accused persons to be identified are mixed up with the
witnesses, the test identification is clearly vitiated and
is futile. Value of identification parade depends on the
effectiveness and the precautions taken against the
identifying witness having and opportunity of seeing the
persons to be identified before they are paraded with others
and also against the identifying witness being provided
by the investigating authority with other unfair aid or
assistance so as to facilitate the identification of
the accused concerned. Therefore, the evidence of the
earlier identification in this case is unacceptable. The
testimony of PWs 1 and 2 before court is also unsafe to be
acted upon.
Thus we do not consider that the view taken by the
learned sessions judge on the whole was erroneous. The
overall view of the evidence taken by the learned sessions
judge is reasonable and plausible, while it is true that
some of the reasons given if taken individually do not
appear to be substantial. Even when two evenly balanced
views of the evidence are possible one must necessarily
concede the existence of a reasonable doubt. Thus on a
careful and anxious consideration of the evidence in the
light of the reasoning adopted by the trial court as well as
the High Court, we are of the opinion that the High Court
was not justified in interfering with the order of acquittal
when the identity and involvement of the appellants had not
been established beyond reasonable doubt. We accordingly
allow the appeal, set aside the conviction and sentence and
maintain the order of acquittal. The bail bonds of the
appellants shall stand cancelled.
TNA Appeal allowed
731
light was available and the street light was distance it is
unlikely that the eye witnesses by monetary glance of the
assailants who surrounded the victim had a lasting
impression and the chance of identifying the assailants
without mistake. The credibility of the evidence relating
to the identification depends largely on the opportunity the
witness had to observe the assailants when the crime was
committed and memorize the impression. This aspect of the
matter had been stressed by the trial court in appreciating
the evidence of PWs 1 and 2. The High Court has ignored the
inherent infirmity and failed to deal effectively with the
important circumstance in the evidence which weighted with
the trial court to disbelieve the prosecution case.
We have noticed that the magistrates in conducting the
test identification parade have committed a grave error. In
the case of Accused No. 6 PW-9 had mixed up along with PWs 1
and 2 a person, Gulati who knew the accused. Similarly, in
the identification of the other accused, PW-4 who claimed
acquaintance with Accused Nos. 2, 3 and 5 was mixed up with
PWs 1 and 2. When persons who have already known the
accused persons to be identified are mixed up with the
witnesses, the test identification is clearly vitiated and
is futile. Value of identification parade depends on the
the effectiveness and the precautions taken against the
identifying witness having an opportunity of seeing the
persons to be identified before they are paraded with others
and also against the identifying witness being provided by
the investigating authority with other unfair aid or
assistance so as to facilitate the identification of the
accused concerned. Therefore, the evidence of the earlier
identification in this case is unacceptable. The testimony
of PWs 1 and 2 before court is also unsafe to be acted upon.
Thus we do not consider that the view taken by the
learned sessions judge on the whole was erroneous. The
overall view of the evidence taken by the learned sessions
judge is reasonable and plausible, while it is true that
some of the reasons given if taken individually do not
appear to be substantial. Even when two evenly balanced
views of the evidence are possible one must necessarily
concede the existence of a reasonable doubt. Thus on a
careful and anxious consideration of the evidence in the
light of the reasoning adopted by the trial court as well as
the High Court, we are of the opinion that the High Court
was not justified in interfering with the order of acquittal
when the identity and involvement of the appellants had not
been established beyond reasonable doubt. We accordingly
allow the appeal, set aside the conviction and sentence and
maintain the order or acquittal. The bail bonds of the
appellants shall stand cancelled.
TNA Appeal allowed.
732