Bollavaram
Pedda Narsi Reddy & Ors Vs. State of Andhra Pradesh [1991] INSC 135 (7 May 1991)
Fathima
Beevi, M. (J) 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.
HEAD NOTE:
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]
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.
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