The division judge bench of Justice B.R. Gavai and Justice Pamidighantam Sri Narasimha of the apex court in the case of Gireesan Nair & Ors. Etc vs State of Kerala held that if identification in the TIP has taken place after the accused is shown to the witnesses, then not only is the evidence of TIP inadmissible, even an identification in a court during trial is meaningless.
BRIEF FACTS
The factual matrix of the case is that when the state of Kerala in the year 2000 decided to delink pre degree courses from colleges and start plus two courses at the school level. There were protests against the implementation of the said policy. Police allegedly used excessive force during one of the protests, which led to the injuries of several protesters, including female students. It is claimed that Accused Nos. 12 and 2533 plotted to launch a protest the following day in order to spread fear and terror throughout the city as retaliation for the atrocity committed by the police. In the furtherance of the alleged conspiracy, the protestors become violent and further leads to the death of the Mr Rajesh, a bus conductor with KSRTC. Moreover, the FIR was registered under Sections 143, 147, 148, 307, 149 of the IPC, Section 3(2)(e) of the PDPP Act and Sections 3 and 5 of the Explosive Substances Act, 1908.
The 1st test identification parade was conducted and after the conclusion of the identification process for Accused Nos. 116, the nonsuspects were asked to leave, and when the suspects were alone, they were asked if they had any complaints about how the TIP was conducted. It is alleged that all of them replied in the negative. However, when questioned if they had anything else to say, Accused No. 2, on behalf of all the accused, stated that, when the suspects were in police custody, they were all photographed and videographed and were also shown to all the six witnesses from the cabin of the IO (PW84).
All this is evident from the “Report of the Identification Parade of the 16 Accused Persons. After conducting the 2nd and 3rd test identification parade, it can be seen that from the very beginning, the Accused had objected to how the TIP was conducted and the events preceding it, which interalia included –
(i) the Accused being shown to the witnesses from the cabin of the IO
(ii) the Accused being photographed and videographed while they were in police custody;
(iii) securing the presence of the witnesses in court while the accused were produced for extension of their remand; and
(iv) the Accused wearing the same dress straight from their arrest till the date of the TIP. The Sessions Court convicted Accused Nos. 12 and 2533 under Sections 120B of the IPC r/w Section 3(2)(e) of the PDPP Act, Sections 109 and 111 of the IPC, and sentenced them to four years of imprisonment. In appeal, the High Court disbelieved PW68 and consequently set aside the conviction of Accused Nos. 12 and 2533 under the abovementioned provisions. The decision of the High Court on the issue of conspiracy against Accused Nos. 12 and 2533 has attained finality as the State has not preferred an appeal.
The learned counsel appearing on behalf of the accused has contended that the TIP was of utmost importance, considering that this was a case where criminal liability was fastened only against a few protestors. She raised questions over the integrity of the TIP by contending that-
(i) the ideal ratio of suspects to non-suspects as laid down by the Kerala High Court in Pradeepan v. State of Kerala has not been followed;
(ii) the presence of IO in the premises of central jail during both the TIPs vitiates the TIP in its entirety;
(iii) the IO in both the TIPs did not record physical features, age etc. of the nonsuspects.
(iv) the IO has admitted that Accused Nos. 116 were in his custody when he questioned the eyewitnesses in his office;
(v) PW3 and PW4 have admitted that they had seen the Accused while they were at the Police Station;
(vi) PW1, PW 812 and PW33 have admitted that they had identified the Accused in the TIP based on the pictures they saw in the newspaper;
(vii) the Accused had complained that while they were in police custody, they were photographed and shown to the witnesses from the cabin of PW84;
(viii) Remand Report clearly stated that Accused Nos. 116 were shown to the eyewitnesses;
(ix) there has been a delay in holding in the TIP which is fatal, in light of the decision in Acharaparambath Pradeepan and Anr. v. State of Kerala, Lal Singh and Ors. v. State of UP10 and Shaikh Umar Ahmed Shaikh and Anr. v. State of Maharashtra11; and
(x) no importance can be given to the identification made in the TIP when the same witness fails to identify the same accused before the court.
The learned senior counsel appearing on behalf of the state has contended that the – (i) the decision in Pradeepan v. State of Kerala, is not binding. The same were mere guidelines which could be adjusted based on the facts and circumstances of a case. Reliance was also placed on the decision of the Kerala High Court in Mohanan Nair v. State of Kerala, to support the same point; (ii) a TIP can be accepted as a piece of evidence based on the subjective satisfaction of a court, which has occurred in this case; (iii) if there were concerns about the manner in which the TIP was conducted, then the TIP itself should have been challenged. In that view of the matter, it was submitted that when it has not been challenged, then under Section 80 of the Indian Evidence Act, 1872, a presumption arises that the TIP Report is a valid proof of evidence; (iv) the JFMC took every measure within his reach to ensure smooth conduct of the TIP; (v) the IO took all possible measures to ensure that the TIP is conducted at the earliest possible opportunity; (vi) reliance was placed on the decision of this Court in the case of Munna Kumar Upadhyay v. State of Andhra Pradesh where it was held that if pictures of the suspects were circulated in newspapers months before the TIP is conducted, then the circulation would have lost its effect on the minds of then witnesses; (vii) the Sessions Court has only convicted those accused, who were identified both before the Court as well as in the TIP. The testimony of these eyewitnesses never suffered from any infirmities; and (viii) the evidence of PW5, PW6 and PW8, which was relied upon by the Trial Court, was not biased.
COURT’S OBSERVATION
The hon’ble court considered the major three issues (i) the credibility of the eyewitnesses who participated in the TIP to identify the accused; (ii) delay in conducting the TIP; and (iii) legality of the TIP and the presence of the IO during the conduct of the TIP.
Credibility of the eyewitnesses who participated in the TIP to identify the accused:
The court is of the opinion that the witnesses had the opportunity of seeing the accused before the conduct of the TIP. Not only have the witnesses deposed that they had seen the suspects before the TIP, even Accused No. 2, at the end of the 1st TIP, had raised a grievance that the suspects were all photographed, videographed and were shown to the witnesses from the cabin of the IO. At the end of the 2nd TIP, he had also stated that when Accused Nos. 119 were taken to court for the purpose of remand, and the presence of all the witnesses was arranged in the court by the police. In fact, all the Accused collectively stated that they were wearing the very same dress, straight from their arrest, till the date of the TIP to indicate that the TIP did not serve its purpose. The court find no reason to disbelieve the truthfulness of the statement of the Accused because they had raised this contention right from the beginning and have maintained it all along.
Further, there existed no useful purpose behind conducting the TIP. The TIP was a mere formality, and no value could be attached to it. As the only evidence for convicting the appellants is the evidence of the eyewitnesses in the TIP, and when the TIP is vitiated, the conviction cannot be upheld.
Delay in conducting the TIP
Undue delay in conducting a TIP has a serious bearing on the credibility of the identification process. Though there is no fixed timeline within which the TIP must be conducted and the consequence of the delay would depend upon the facts and circumstances of the case, it is imperative to hold the TIP at the earliest. The possibility of the TIP witnesses seeing the accused is sufficient to cast doubt about their credibility. The following decisions of this Court on the consequence of delay in conducting TIP have emphasised that the possibility of witnesses seeing the accused by itself can be a decisive factor for rejecting the TIP. In Suresh Chandra Bahri v. State of Bihar.
Legality of the TIP and the presence of the IO during the conduct of the TIP
The conduct of the TIP, coupled with the hovering presence of the police during the conduct of the TIP vitiated the entire process. The Trial Court as well as the High Court have committed a serious error in relying on the evidence of the TIP witnesses for convicting and sentencing the Appellants. The court is of the opinion that the conviction and sentencing are not sustainable.
In view of these lapses on the part of the prosecution, it is not necessary for us to consider various other grounds raised by the Appellants.
The hon’ble court held that the prosecution has not established its case beyond reasonable doubt. Apart from the TIPs, the court held that no other evidence put forth by the prosecution to prove the guilt of the Accused for offences under Sections 143, 147, 148 IPC and 3(2)(e) of PDPP Act r/w 149 of the IPC.
CASE NAME- Gireesan Nair & Ors. Etc vs State of Kerala
CITATION- CRIMINAL APPEAL NOS. 18641865 OF 2010
CORUM- Justice B.R. Gavai and Justice Pamidighantam Sri Narasimha
DATE- 11.11.22
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