Siddanki Ram Reddy vs State Of A.P

several charges in Sessions Case No.195 of 2005. After the

trial the 5th Additional Sessions Judge (FTC) acquitted accused

nos. 2 to 10 of the charges and convicted the appellant, who

was the accused no.1, under Section 302 of the Indian Penal

Code, 1860 and sentenced him to undergo Rigorous

Imprisonment for life and to pay a fine of Rs.25,000/- and in

default to suffer Simple Imprisonment for one year.

3. Mr. Sushil Kumar, learned counsel for the appellant,

submitted that it will be clear from the evidence led by the

prosecution that the deceased was killed in the court premises

by a mob and there is no reliable evidence on record to show

that it was the appellant who had killed the deceased. He took 3

us through the evidence of PW-1, PW-5 and PW-6, who

according to the prosecution are the eye witnesses, to show

that none of them have been able to identify the assailant of

the deceased. He referred to the FIR (Ext.P1) to show that the

appellant-Ram Reddy had not been named in the FIR lodged

by PW-1. He submitted that in the FIR the accused persons

named are Narsimha Reddy's son and Srinivas Reddy, and the

appellant is neither Narsimha Reddy's son nor Srinivas Reddy

and, therefore, the evidence of PW-1 that the appellant was the

assailant is not at all reliable.

4. He submitted that PWs 5 and 6 were police constables

performing court duty and they did not know the appellant

personally and yet they have deposed before the court that the

appellant was the assailant of the deceased. He submitted

that PW5 has stated that the appellant was wearing a Kurta

and Lachi, whereas the Inspector of Police (PW-36), who

arrested the appellant, has stated in his evidence that at the

time of arrest, the appellant was neither wearing a Kurta nor a

Lachi.

4

5. He next submitted that the Test Identification Parade was

not at all fair because the appellant was arrested and eight

others had also been arrested but only the appellant and one

other accused were produced before the witnesses in the Test

Identification Parade before the Judicial Magistrate (PW-34).

He submitted that though the appellant was arrested on

March 9, 2005, he was produced in the Test Identification

Parade on April 23, 2005 about 54 days after the arrest and

this inordinate delay in conducting the Test Identification

Parade has not been explained by the prosecution.

6. He submitted that in any case in the Test Identification

Parade PWs 1, 5 and 6 have not been able to properly identify

the appellant. He submitted that PW-1, father of the

deceased, has not identified the appellant at all. He argued

that PWs 5 and 6 had enough opportunity to see the appellant

prior to the Test Identification Parade and in fact when the

appellant was produced before the court alongwith other

accused persons after the arrest, PW-5 was one of the

members of the police escort party and therefore he knew who

was the accused before the Test Identification Parade. He 5

submitted that PW-6 has stated before the Magistrate (PW-34)

carrying out the Identification Parade that he can identify the

appellant on the basis of a scar on the cheek, but PW-34 has

stated in his evidence that the appellant did not actually have

any such scar or wound mark.

7. Mr. Sushil Kumar vehemently argued that in the absence

of any reliable evidence to establish beyond reasonable doubt

that it was the appellant who was the assailant amongst the

mob in the court premises, the conviction under Section 302

of the Indian Penal Code, 1860 cannot be sustained.

According to him, this is a fit case in which the appeal should

be allowed and the impugned judgment set aside and the

appellant should be acquitted.

8. Mr. Rama Krishna Reddy, learned counsel appearing for

the State of Andhra Pradesh, on the other hand, supported the

judgments of the trial court and the High Court. He submitted

that the murder of the deceased took place at 11.00 a.m. in

broad day light in the court premises during the court hours

and in full view of the public and the evidence of PW-1 clearly

establishes that the appellant killed the deceased out of 6

revenge because the appellant's brother-in-law, Narsimha

Reddy, had been killed on September 22, 2004. He submitted

that the contention on behalf of the appellant that he is not

named in the FIR by PW-1 is not correct. He submitted that in

the FIR [Ex.P1] the brother-in-law of Narsimha Reddy was

named as one of the accused and in the confessional

statement of the appellant [Ex.P20] recorded by the Inspector

of Police (PW-36) the appellant has admitted that he is the

brother-in-law of Narsimha Reddy. He further submitted that

pursuant to the confession, the axe with which the murder

was committed (M.O.-1) was also recovered.

9. He next submitted that the trial court and the High Court

have relied on the evidence of PWs 5 and 6, who were none

other than the court constables and who had chased the

appellant for a while after the incident. He argued that PWs 5

and 6 were therefore natural witnesses of the occurrence and

they had no axe to grind against the appellant and their

evidence ought to be believed.

10. Regarding the delay in conducting the Test Identification

Parade, he submitted that there was no unusual delay in 7

conducting the Test Identification Parade as the appellant

alongwith eight others were arrested on 9/10 March, 2005

and were produced before the Magistrate on March 11, 2005

and thereafter on April 7, 2005 a requisition was made by the

Inspector of Police (PW-36) for conducting the Test

Identification Parade and on April 23, 2005 the Test

Identification Parade was conducted by the Magistrate. He

submitted that in any case the defence has not put any

question to Investigation Officer (PW-36) seeking his

explanation for the delay, if any.

11. Mr. Reddy cited State of Maharashtra v. Suresh [(2000) 1

SCC 471] wherein this Court has observed that if potholes

were to be ferreted out from the proceedings of the Magistrates

holding Test Identification Parades then possibly no Test

Identification Parade can escape from one or two lapses and

Test Identification Parades would become unusable. He also

relied on Daya Singh v. State of Haryana [(2001) 3 SCC 468] in

which this Court has held that a Test Identification Parade

held 7 to 8 years after the incident was not vitiated where an 8

enduring impression of the identity of the accused was gained

during the incident.

12. He submitted that this Court has held in Mohd. Aslam v.

State of Maharashtra [(2001) 9 SCC 362] that where the

testimony of an eye witness is supported by another eye

witness with regard to the occurrence as well as the role of the

accused in the occurrence, minor lapses, if any, in the conduct

of the Test Identification Parade, cannot be a reason for

acquitting the accused. He submitted that in the present

case, PWs 1, 5 and 6, who were eye witnesses to the

occurrence, have clearly spoken about the attack by the

appellant on the deceased and their evidence is corroborated

by the evidence of other witnesses including PWs 34 and 36.

According to him, this is not a fit case in which this Court

should interfere with the concurrent findings of the trial court

and the High Court holding the appellant guilty of the offence

punishable under Section 302 of the Indian Penal Code, 1860.

13. The first witness on whom the High Court has relied on

to convict the appellant is PW-1, the father of the deceased.

The evidence of PW-1 is that on 28.02.2005 a case against his 9

son and Sridevi was posted in the 2nd Metropolitan Magistrate

Court and he had gone along with his son and Sridevi to the

court premises and they attended the court as soon as the

case was called and came out of the court at about 11.00 a.m.

and at that time Narsing Yadav, accused No.2, who was

standing at the flag-post, sprayed chilly powder into their eyes

and while his deceased son was trying to obliterate the chilly

powder from his face, the accused No.1 (the appellant) chased

him with an axe and he ran after the appellant and when the

deceased came to the corridor of the court, he bent his head to

a side to save from the blow of the axe, due to which that blow

was received by another person. Thereafter, the deceased took

a turn to the left towards the 2nd Additional District Judge's

Court and the chappal of the deceased slipped in that process

and he bent and immediately the appellant hacked the

deceased on left side of the neck. On seeing PW-1, the

accused No.1 raised the axe but PW-1 went a little bit back

and then the appellant hacked the deceased three times on

the left side of the neck and near the ear. PW-1 has further

stated that this took place in the corridor of the Court Hall of 10

2nd Additional District Judge's Court. The appellant then

started ringing the axe in the air showing threatening gestures

so as to cause terror and create fear in the mind of the people

and although an advocate tried to catch the appellant he could

not catch him and the appellant jumped the compound wall of

the court opposite to the main entrance and went away.

14. The evidence of PW-1 naming the appellant Ram Reddy

as the assailant of the deceased is not reliable because though

PW-1 has stated that he knew that accused No.1 (the

appellant) was the brother-in-law of Narsimha Reddy and that

his name was Ram Reddy, in the FIR (Ex.P-1) which was

lodged in less than an hour after the incident at about 11.45

a.m. he has not mentioned the name of the appellant as Ram

Reddy. The evidence of the Investigation Officer (PW-36) also

is that PW-1 did not state the name of the appellant as Ram

Reddy before him at the time of the inquest. If PW-1 knew the

appellant as Ram Reddy at the time of the occurrence, he

would have named Ram Reddy in the FIR (Ex.P1) which he

lodged within an hour of the incident and would have also

named him as the assailant before the Investigation Officer 11

(PW-36) The omission on the part of PW-1 not to mention the

name of appellant as Ram Reddy in the FIR (Ex.P1) before the

Investigation Officer soon after the incident or at the time of

inquest is relevant for deciding whether the evidence of PW-1

that the appellant was the assailant is reliable. In Ram Kumar

Pandey v. State of Madhya Pradesh [(1975) 3 SCC 815] cited

by Mr. Sushil Kumar, this Court has held that omissions of

important facts in the FIR affecting the probabilities of the

case are relevant under Section 11 of the Evidence Act in

judging the veracity of the prosecution case. In that case, the

omission to mention any injury inflicted on Harbinder Singh

by the appellant in the FIR was held to be very significant in

the circumstances of the case.

15. Moreover, it appears that PW-1 did not actually know the

appellant at the time of the incident and therefore did not

name the appellant in the FIR (Ex.P-1). The Investigation

Officer (PW-36) has stated in his evidence that PW-1 did not

know the accused previously and therefore he requested the

inclusion of PW-1 in the Test Identification Parade. In the Test

Identification Parade, PW-1 could not identify any person as 12

the assailant of the deceased. The evidence of the Magistrate

(PW-34), who conducted the Test Identification Parade, is that

PW-1 did not state before him that he can identify the

appellant-Ram Reddy. The proceedings of the Test

Identification Parade (Ex.P64) show that PW-1 has not

identified any of the suspects. The version given by PW-1 in

the witness box that the appellant was the assailant of the

deceased appears to be based on his suspicion that the

appellant out of grudge may have killed the deceased. This

suspicion of PW-1 is borne out by his own testimony to the

effect that Ram Reddy (accused No.1) is the brother-in-law of

the deceased Narsimha Reddy and bearing grudge in regard to

his brother-in-law being killed accused No.1 has done this.

16. The next eye-witness on which the High Court has placed

reliance is PW-5. His evidence is that he was working as a

police constable in L.B. Nagar P.S. since 11.06.2001. On

28.02.2005, he was on court duty working as court constable

in the court of the 2nd Metropolitan Magistrate and he came to

the court at about 10.00 a.m. or 10.30 a.m. At about 11.00

a.m. he was at the front of the entrance of the court and he 13

saw people running into the court building towards the 2nd

A.D.J., court. He saw a person with white kurta and pajama

running to the court building chasing another person in white

clothes and the person with white kurta and pajama hacking

the person in front of him with an axe on his neck near the 2 nd

A.D.J. Court Hall and after hacking the assailant was running

out through the main entrance towards the compound wall

and then he and Mahender (PW-4), who was an advocate,

chased the assailant but the assailant ran and went to the

motorcycle on the other side of the compound wall. Mahender

(PW-4) threw a stone on the assailant which hit him on the

back and then he returned to the 2nd A.D.J. Court Hall where

he saw the victim lying on the ground with faint breathing.

While giving his evidence PW-5 pointed out towards the

appellant who was standing in the Court Hall and identified

him as the assailant.

17. PW-5, who was a constable attending to his duties in the

court, was not expected to know the appellant before the

incident, but he claims to have seen the appellant on

28.02.2005 when he attacked the deceased by an axe. He was 14

summoned to Cherlapally Jail for the Test Identification

Parade and he has identified the appellant as the assailant

during the Test Identification Parade. If PW-5 saw the

appellant for the first time in the Test Identification Parade on

23.04.2005 his evidence would have been trustworthy. His

evidence, however, is that he was present when the accused

No.1 (the appellant) and other accused persons were produced

for remand in the court on 11.03.2005 and he therefore knew

the physical features of appellant on 11.03.2005. It is thus

clear that when the Test Identification Parade took place on

23.04.2005, PW-5 had not only seen the appellant but also

had knowledge that the appellant was the accused in the

murder which took place in the court premises on 28.02.2005.

18. In Lal Singh & Ors. v. State of U. P. [(2003) 12 SCC 554]

cited by Mr. Sushil Kumar, this Court has held that the Court

has to rule out the possibility of the witnesses having been

shown to the witnesses before holding a Test Identification

Parade. In fact, in State of Maharashtra v. Suresh cited by Mr.

Reddy, this Court has noted that all precautions were taken

that the witnesses could not see the suspect during transit 15

from the lock-up to the place for Test of Identification Parade.

But as we have seen, PW-5 had already seen the appellant in

court on 11.03.2005 and already knew that the appellant was

the accused when the Test Identification Parade was

conducted on 23.04.2005. The evidence of PW-5 that the

appellant was the assailant is, therefore, not reliable.

19. The last eye witness on whom the High Court has relied

upon is PW-6. His evidence is that on 28.02.2005 he came to

court by 10.30 a.m. and attended the J.F.C.M., East and

North, and at about 11.00 a.m. he went to the section of 2nd

A.D.J. court on some work and was returning when he saw a

person armed with an axe coming from the main entrance side

towards the 2nd A.D.J. Court Hall and he hacked the person

whom he was chasing with the axe on his neck. The victim

collapsed to the ground and he and a civilian by the name

Kumar tried to catch hold of the assailant, but the assailant

by ringing the axe around terrorised everyone and created fear

in the mind of the people. The further evidence of PW-6 is that

when the assailant gave a blow he bent to the aside and then

the assailant went through the main entrance. He was 16

summoned to Cherlapally Jail for the Test Identification

Parade in which he identified the accused No.1 (the appellant)

as the assailant. It is difficult to believe the evidence of PW-6

regarding the identification of the appellant as the assailant

because in the Test Identification Parade he has stated that

the suspect has injury mark on his right cheek and the

Magistrate (PW-34) conducting the Test Identification Parade

has stated in his evidence that according to his Report (Ex.

P64) none of the two suspects had injury mark on the right

cheek.

20. This Court has held in Daya Singh v. State of Haryana

(supra) cited by Mr. Reddy that the purpose of test

identification is to have corroboration to the evidence of the

eye witnesses in the form of earlier identification and that the

substantive evidence of a witness is the evidence in the Court

and if that evidence is found to be reliable then absence of

corroboration by test identification would not be in any way

material. In the facts of the present case, a mob attacked the

deceased in the crowded corridors of the court of the 2nd

Additional District Judge and PW-1, PW-5 and PW-6 in their 17

evidence in the court claim to have seen the accused No.1

(appellant) chasing the deceased with an axe and assaulting

the deceased with axe on his neck. All these three eye

witnesses have also stated that soon after the assault the

appellant ran away from the court premises. The three eye

witnesses thus saw the assailant for a very short time when he

assaulted the deceased with the axe and thereafter when he

made his escape from the court premises. When an attack is

made on the assailant by a mob in a crowded place and the

eye witnesses had little time to see the accused, the

substantive evidence should be sufficiently corroborated by a

test identification parade held soon after the occurrence and

any delay in holding the test identification parade may be held

to be fatal to the prosecution case. In Lal Singh & Ors. v. State

of U. P. , this Court has held that where the witness had only a

fleeting glimpse of the accused at the time of occurrence, delay

in holding a test identification parade has to be viewed

seriously.

21. Further, the test identification parade in this case has

not been fair to the appellant. Although eight suspects were 18

arrested, only the appellant and one other were produced

before the witnesses at the Test Identification Parade. This

gives room for a lot of doubt on the case of the prosecution

that none other than the appellant was the assailant. In State

of Maharashtra v. Suresh (supra), on which reliance was

placed by Mr. Reddy, the Court found that the suspect was

permitted to stand anywhere among seven persons and the

witnesses were then asked to identify the person whom they

saw on the crucial day and on these facts this Court held that

the test identification parade was conducted in a reasonably

foolproof manner. This is not what has been done in the

present case and, therefore, the corroboration of the

substantive evidence of PWs 1, 5 and 6 on the identification of

the suspect by the test identification parade is not

trustworthy.

22. It is true, as has been submitted by Mr. Reddy, that both

the trial court and the High Court have arrived at concurrent

findings on the basis of the evidence of PWs 1, 5, 6 and other

witnesses that the appellant was the assailant of the deceased

and that concurrent findings of fact arrived at on the basis of 19

evidence by the trial court and the High Court are not

normally interfered with by this Court in appeal. But as has

been held by this Court in A. Subair v. State of Kerala [(2009) 6

SCC 587], when the evidence produced by the prosecution has

neither quality nor credibility, it would be unsafe to rest

conviction upon such evidence and the judgments of the

courts below will have to be interfered with. This Court has

also held in Mankamma v. State of Kerala [(2009) 10 SCC 164]

that ordinarily this Court does not interfere in a matter by re-

appreciating the evidence but when it is found that the

evidence has been appreciated by the High Court in a

mechanical manner and without proper consideration of facts

and circumstances on record, this Court will have to re-

appreciate the evidence in the interest of justice. This is one

such case in which both the trial court and the High Court

have mechanically relied on the evidence of PWs 1, 5 and 6

that it was the appellant who had attacked the deceased with

an axe in the court premises without appreciating that it was

unsafe to rest conviction upon the evidence of PWs 1, 5 and 6

with regard to the identification of the assailant. 20

23. In the result, we allow this appeal and set-aside the

impugned judgments of the High Court and the trial court and

direct that the appellant, who is in custody, be released

forthwith if not required in any other case.

..........................J. (R. M. Lodha)

..........................J. (A. K. Patnaik) New Delhi, July 27, 2010.