Summary
A Sri Lankan refugee convicted as the absconding accused 'Sri' in a 2015 conspiracy to revive the LTTE was acquitted. His identity as 'Sri' rested only on the belated, improved testimony of two witnesses of doubtful conduct, who named him 'Ranjan' for the first time after his arrest, without a test identification parade or any documentary link. His open residence at a registered address and his visa application were inconsistent with absconding, and the Court found that he had been falsely implicated.
Issues
- Whether the prosecution proved that the appellant, known as 'Ranjan', was the absconding accused 'Sri' (A-5), or whether he was implicated through mistaken identity.
- Whether the belated naming of 'Ranjan' as an alias of 'Sri' by PW-8 and PW-9, after the appellant's arrest and without a test identification parade, could be accepted under the principle in Abuthagir v. State.
- Whether the evidence of the appellant's landlady and neighbours corroborated the prosecution case on identity.
Provisions considered
- Section 120B IPC read with Sections 10(a)(i), 10(a)(iv) and 38(1) UAPA, Indian Penal Code, 1860 and Unlawful Activities (Prevention) Act, 1967The appellant was convicted of these offences, and of offences under the Poisons Act, Foreigners Act and Passport Act, as A-5 'Sri'. Since the prosecution failed to establish his identity as A-5, the convictions were set aside without examining the ingredients of the offences. (¶¶ 2, 43, 62, 63, 65)
Held
- The only identifying witnesses, PW-8 and PW-9, were refugees who had obtained Indian identity documents without citizenship, sheltered the main accused, and stayed silent after allegedly seeing poison being handed over. Their conduct was unnatural and suspicious, and the failure to act against them cast doubt on the investigation. (¶¶ 44, 45, 46)
- Neither witness mentioned in police statements or earlier trials that 'Sri' was also called 'Ranjan' or was the appellant. That assertion surfaced only after his arrest, with identification made in police custody and no test identification parade, and was a material improvement rather than a lapse of memory. (¶¶ 47, 48)
- Abuthagir v. State, on delay in examining witnesses during investigation, does not cover a substantive improvement in testimony on a point on which earlier depositions were silent; such improvements seriously damage credibility, and the High Court's reliance on it was misplaced. (¶ 49)
- The courts below misread the evidence of the landlady (PW-25) and neighbours (PW-17, PW-18). Properly read, it showed that the appellant was known only as 'Ranjan' and undermined, rather than corroborated, the prosecution case on identity. (¶¶ 50, 51, 52, 53)
- Following Vishwanatha v. State of Karnataka, where identity rests on belated and improved testimony with no contemporaneous description, documentary link or independent corroboration, and the prosecution cannot explain how the accused came to be implicated, it is unsafe to sustain the conviction. No police record linked the name 'Ranjan' to 'Sri' before the arrest. (¶¶ 54, 55, 56)
- The appellant lived openly at a registered address in Trichy for years while 'Sri' was supposedly being sought on a non-bailable warrant, and he sought a Swiss visa and police clearance. This conduct is inconsistent with that of an absconding accused, and the investigating agency's inaction raised grave doubt about the prosecution's bona fides. (¶¶ 57, 58, 59)
- The Court found prima facie that PW-8 and PW-9, who were themselves under scrutiny, had been prevailed upon to name the appellant so as to close the case. It concluded that he had been falsely implicated by being given another person's identity, with no evidence connecting him to the crime. (¶¶ 60, 61, 62)
Result
Appeal allowed; the conviction and sentence by the trial Court and the High Court's judgment were set aside; the appellant was acquitted, directed to be released from the Special Camp, Trichy forthwith, and left at liberty to pursue relocation to Switzerland in accordance with law.