Summary
During a July 2000 protest in Thiruvananthapuram, a mob of some 1,500 damaged 81 KSRTC buses. A few protesters were convicted of rioting and of damaging public property, on identification at two test identification parades. The Supreme Court acquitted them. The accused had complained from the outset that they were photographed and shown to witnesses while in police custody, and the witnesses' own evidence confirmed it. The parades were also delayed until police custody had ended, and the investigating officer was present on the jail premises. A tainted parade has no value and makes the identification in court meaningless. The High Court had also failed to deal with these objections.
Issues
- Whether convictions for rioting and destruction of public property resting solely on identification at test identification parades could stand where the accused were shown to witnesses beforehand, the parades were delayed and the investigating officer was present.
- Whether the High Court, in appeal, could affirm the convictions without considering the appellants' objections to the identification parades.
Provisions considered
- Section 9, Indian Evidence Act, 1872TIP evidence is admissible but only corroborative, not substantive, and loses value where witnesses had the opportunity to see the accused beforehand. (¶¶ 26, 28, 29)
- Section 162, Code of Criminal Procedure, 1973Identifications made in the presence of police amount to statements to the police during investigation and fall within its bar. (¶¶ 29, 49, 53)
- Section 386, Code of Criminal Procedure, 1973An appellate court must itself assess the evidence; dismissing an appeal without considering the appellant's contentions is a serious infirmity. (¶ 19)
- Section 3(2)(e), Prevention of Damage to Public Property Act, 1984The conviction under this provision read with Section 149 IPC was set aside for want of reliable identification. (¶¶ 17, 57, 58)
- Sections 143, 147, 148 and 149, Indian Penal Code, 1860Convictions for unlawful assembly and rioting set aside as the prosecution failed to prove identity beyond reasonable doubt. (¶¶ 57, 58)
Held
- A TIP is a rule of prudence at the investigation stage; it must be held without unreasonable delay, the accused must be kept 'baparda' from arrest, non-suspects must be in a proper ratio with similar age and features recorded by the officer, and the prosecution bears the burden of proving fairness; if witnesses saw the accused beforehand physically, by photograph or through the media, the TIP and even the dock identification lose value. (¶¶ 25, 26, 27, 28, 29, 30, 31)
- PW-3 and PW-4 admitted being shown accused at the Crime Branch office, PW-5 arrived after the incident, PW-6 visited the office the day the accused were in police custody, PW-8 identified from newspaper photographs, and the accused objected at both parades that they had been photographed, videographed and shown to witnesses; the TIP was a mere formality of no value. (¶¶ 34, 36, 37, 38, 44, 45)
- The investigating officer sought police custody rather than an early TIP and applied for the TIP the day after custody ended, supporting the inference that custody facilitated identification; he took no steps to keep witnesses and accused apart, and police officers were present on the jail premises during both parades, vitiating the process. (¶¶ 48, 50, 51, 52, 53, 56)
- The High Court disposed of the appellants' objections to the TIP in a single passage; dismissal of an appeal without considering the appellant's contentions under Section 386 CrPC is a serious infirmity; with no evidence apart from the vitiated TIPs, the guilt of the appellants was not proved beyond reasonable doubt. (¶¶ 19, 56, 57)
Result
Criminal Appeal Nos. 1864-1865 of 2010 allowed; the Kerala High Court's judgment dated 14.01.2010 in Criminal Appeal Nos. 384 and 385 of 2006 and the Sessions Court's judgment dated 15.02.2006 set aside; appellants acquitted and bail bonds discharged; parties to bear own costs.